United States v. Tateo

PETITIONER:United States
RESPONDENT:Tateo
LOCATION:Alabama State Capitol

DOCKET NO.: 328
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 377 US 463 (1964)
ARGUED: Apr 20, 1964
DECIDED: Jun 08, 1964

Facts of the case

Question

  • Oral Argument – April 20, 1964 (Part 2)
  • Audio Transcription for Oral Argument – April 20, 1964 (Part 2) in United States v. Tateo

    Audio Transcription for Oral Argument – April 20, 1964 (Part 1) in United States v. Tateo

    Earl Warren:

    United States, Appellant, versus Rocco Tateo.

    Miss Rosenberg.

    Beatrice Rosenberg:

    May it please the Court.

    This is an appeal by the United States under the Criminal Appeals Act from a judgment of the United States District Court for the Southern District of New York, dismissing an indictment for bank robbery on the ground that a trial of defendant there under would subject him to double jeopardy.

    This is how the question arose.

    In May 1956, the defendant Tateo was on trial under a five-count indictment arising out of the robbery of a bank in Port Chester, New York.

    One of the counts, count three, charged kidnapping in course of the robbery, an offense which carried life imprisonment and could even have carried death except that the government disclaimed an intention as to that penalty.

    After four days of trial in which the codefendant testified and implicated the defendant, he came in on a Monday morning and with counsel present said he had decided to plea guilty.

    Now, those proceedings are in the record at pages 69, and on the surface they seem perfectly proper, defendant said he was acting voluntarily, he was represented by counsel, and he even went so far as to consent to a search having disclosed where the money, part of the money from the robbery was hidden.

    However, some years later, the defendant attacked his plea of guilty by a motion under 28 U.S.C. 2255.

    I should say that after the plea was accepted, the kidnapping count was dismissed on motion of the defendant with consent of the defendant — with the consent of the government and the defendant was vented on only four counts, the counts other than the kidnapping charge, he was given twenty two and a half years.

    Now that was the sentence which he attacked some years later and his motion under 2255 came before Judge Weinfeld for hearing in 1963.

    At the conclusion of the hearing, Judge Weinfeld came to the conclusion that the plea of guilty was indeed coerced and the reasons for his opinion appear in the record, a gist of it is on page 40A.

    What had happened was that after these four days of trial, the Judge in the lobby room in the presence of the attorneys for the defense had said, I think I ought to tell you this, “if you finish the trial and your clients are found guilty I am going to start off by imposing the life sentence on the kidnapping charge and then I am going to add consecutive maximum sentences on the other counts on which they are found guilty.

    Judge Weinfeld found that this has a coercive effect, particularly coercive in a sense because the government’s case was very strong and the case was going very badly from the defendant’s point of view.

    Who was the sentencing judge?

    Beatrice Rosenberg:

    Judge Newman.

    The government did not appeal in that decision and the government has no quarrel with that decision of Judge Weinfeld.

    What the government did was say okay, we’ll start all over again.

    And so they moved not only for a retrial on the counts to which the defendant had pleaded guilty, hey had a new indictment returned reinstating count three, the dismissed kidnapping count.

    It was to that count that the defendant originally made a motion to have it dismissed on the grounds that a trail they are under would constitute double jeopardy.

    And it was at the suggestion of the district Judge, Judge Tyler that the motion was broadened to include both a motion to dismiss the kidnapping count and a motion to dismiss the four counts on which the defendant had pleaded guilty, to which he had pleaded guilty and on which he had received a sentence of twenty two-and-a-half years concurrent.

    After considerable argument Judge Tower did dismiss both indictments.

    The new kidnapping indictment and the four — the indictment with the four counts to which the defendant had pleaded guilty.

    It was his view that the action of the trial judge, which coerced the guilty plea kept the case from going to the jury, and therefore, under the mistrial cases, including this Court’s recent decision last year in Downum he thought retrial was broad.

    Now, the government is here appealing only from so much of the decision as dismissed the indictment to which the defendant pleaded guilty and on which he was sentenced.

    It is not appealing from the dismissal of the kidnapping indictment and the reason —

    Byron R. White:

    (Inaudible)

    Beatrice Rosenberg:

    For the selective appeal?

    The reason for selective appeal Mr. Justice is what we regard as the key to this case, and that is that on the counts to which defendant pleaded guilty, there was a judgment.

    Beatrice Rosenberg:

    The case had come to a conclusion, there was a judgment finally against the (Inaudible), which would have run its course had the defendant not moved to set it aside and it is our view that the decisions of this Court and of lower courts practically from the (Inaudible) of this government are to be a sect that one who moves to have a judgment set aside, re-subject himself to the jeopardy represented by that judgment.

    In our —

    William J. Brennan, Jr.:

    You mean by that (Inaudible) but otherwise there is direct appeal (Inaudible)

    Beatrice Rosenberg:

    Yes Your Honor as a matter of fact, the rule as to appeal, that one who moves to set aside re-subjects himself to the jeopardy represented by that judgment which was first announced by this Court in the Ball case as to appeals in criminal cases were authorized, but the question came out in the early history of this republic on motions for a new trial and with the one exception of the opinion by Justice Storey in United States against Gilbert which has not been followed.

    The whole trend of judicial decision in this country has been that there is power to grant a new trial and this means in a sense when you set aside, to grant a new trial you set aside the judgment and that is start over again on the matters represented by the judgment, and I don’t read the mistrial cases as been contrary to that, because in the mistrial —

    Byron R. White:

    I thought this is third count.

    Beatrice Rosenberg:

    The kidnapping count —

    Byron R. White:

    Yes, what about that?

    Beatrice Rosenberg:

    That’s the one we are not appealing from —

    Byron R. White:

    Why not?

    Beatrice Rosenberg:

    Because that does not go to judgment.

    Byron R. White:

    What’s the significance —

    Beatrice Rosenberg:

    And in view — the trial judge’s view which I think we agree with, that you cannot simply separate the kidnapping count from the whole picture, that as to the kidnapping count, it is true, it was dismissed on the motion of the judge — of the defendant, but it was part of a guilty plea.

    This was obviously understood by all parties that when the defendant pleaded guilty the trial would not proceed under the kidnapping count and it never did we felt in the judgment —

    Byron R. White:

    Well, is this part of an understanding?

    Beatrice Rosenberg:

    Well it does not appear in the record, but I think, I think it cannot, because it’s viewed as that it must —

    Byron R. White:

    This is the plea on some counts that the government would dismiss.

    Beatrice Rosenberg:

    I understood that the kidnapping count would be dismissed I think this is the clear reading of that record.

    William J. Brennan, Jr.:

    Well, on a technical distinction this 2255 proceeding was directed only at the guilty plea on the other accounts.

    Beatrice Rosenberg:

    Well it’s such a technical — a judgment is not a technical thing a judgment is —

    William J. Brennan, Jr.:

    No, no, the distinction between count three and the other, the only judgment that was formerly entered was a judgment on the guilty plea.

    Beatrice Rosenberg:

    That’s right.

    William J. Brennan, Jr.:

    And there was no judgment of any kind entered on.

    Beatrice Rosenberg:

    Well they were to dismiss the indictment.

    William J. Brennan, Jr.:

    But the judgment of dismissal of the indictment is not something which is — can be attacked under 2255, is it?

    Beatrice Rosenberg:

    No, it was not attacked by the defendant.

    What I’m saying is that the kidnapping count involved problems under this Court’s (Inaudible) because while it is true —

    William J. Brennan, Jr.:

    Well, apart from that from that Miss. Rosenberg, if I understood what you said, it was that the relief he would seek against the judgment entered on the guilty plea was relief which he himself had sought and therefore you are suggesting that the same retrial principles that apply on direct appeal would also apply here, is that right?

    Beatrice Rosenberg:

    Yes, that’s our position.

    William J. Brennan, Jr.:

    Well, now on the kidnapping obviously you can’t make that argument as dismissal of the kidnapping.

    Beatrice Rosenberg:

    That’s right.

    William J. Brennan, Jr.:

    And is that the reason you make the distinction?

    Beatrice Rosenberg:

    Yes.

    That’s the major one.

    Arthur J. Goldberg:

    (Inaudible)

    Beatrice Rosenberg:

    Yes, but I think it is true that the major reasons for not taking up, the kidnapping count is that we think the significant fact that distinguishes in this trial case is, is the fact that this case went to judgment.

    As we read in this trial cases, what they say is if a defendant is unnecessarily kept from getting a judgment, the judgment will be for this purpose taken as a judgment for the defendant, so he can’t be tried again.

    And it’s interesting that in the United States against Green, it is cited in our brief, one of very early cases setting out the right to demand a new trial this is exactly the distinction that he made, the distinction between the mistrial cases which had already known to exist and the case which had gone to judgment and the fact is that there was a judgment that it was binding until it will set aside.

    Now my opponent says that that rule which he recognizes and which this Court reaffirmed in Green and in Foreman very recently, he says that doesn’t apply here because although the case went to judgment, it didn’t go to verdict and he argues that there is something that a case ought to be allowed to go to verdict.

    But that’s a distinction that doesn’t make any logical sense in relation to the judgment rule, because a plea of guilty has always been deemed the equivalent of a verdict, a plea of guilty supports a judgment just the same way as a verdict supports the judgment, it’s the judgment, at the end of the litigation.

    And whatever the Trial Judge did or didn’t do wrong in this case, he didn’t — these cases from going to these counsel, going to judgment so that we do end up with a judgment.

    And it doesn’t seem to me to make sense to say, that if a defendant has gone through a whole trial and get his case reversed on appeal, he can be retried, but this defendant has only gone through part of a trial and had plead guilty cannot be retried even though both cases have gone to judgment.

    There are all sorts of errors, a hanging, (Inaudible) is called or an instruction to this regard the defendants evident, an instruction on the wrong theory of the case, these are all the errors which have caused reversal on appeal, but which have never been deemed for a retrial and they are every bit as coercive or passively more coercive than what was done here.

    Arthur J. Goldberg:

    (Inaudible)

    Beatrice Rosenberg:

    That’s right.

    Now my opponent says, oh well, there is always the possibility that one slim chance that the jury will have quit in the phase that everything the Judge says, in the face of these wrong instructions and everything else, but if a distinction has to be drawn on that one slim chance seems to me a lot of our appellate lawyers become a matter of gains and I don’t believe it.

    I don’t think anybody doubts that the so called hanging charge doesn’t leave much of a slim chance.

    And furthermore if the slim chance is going to be the distinction, it doesn’t make sense in this case because here the defendant got much more of a benefit than a slim chance, he got the certainty, understanding in the virtual certainty that the kidnapping count was going to be dismissed, which is certainly more significant than this one slim chance of acquittal in the face of grievous error on the part of the trial Judge.

    I think the real question —

    Potter Stewart:

    I don’t quite understand that point Ms. Rosenberg and I realize it’s not your point, it’s your opponent’s but why are we concerned with the slim chance, the chance however slim, at the time the error is committed?

    The appellate courts are faced with a conviction if there is an acquittal that’s the end of it.

    Beatrice Rosenberg:

    Well he said that’s right.

    That’s another answer, but there is this mystique I should say of having — the facts of the case have gone to the jury, that it’s supposed to distinguish this case from the others and this is one of the distinctions that’s offered and I don’t find it’s a very satisfactory distinction because I don’t think it’s meaningful.

    I think the real question here is why this rule which has been, as I say, the American system from the beginning even if the framers of the Constitution obviously thought that a rule allowing a new trial after judgment had been set aside with a benefit and it is different from the English rules.

    So the question is what is the real rational of that opinion?

    Curiously for a doctrine that has been in our law from the beginning there is almost no philosophy in the decisions.

    The Ball case talked about waiver and it didn’t — and so did the earlier cases.

    It apparently reflects the view that this was something of benefit to the discernment, the right to have a new trial, but this Court both the majority and the dissenting opinions in Green indicated the doctrine of waiver was more of a statement of a result than a realistic appraisal of what occurred.

    What the defendant wants to do is go free.

    If he can’t go free he’ll take a new trial to get the judgment but it isn’t waiver in the sense that that’s normally used and so I think we do have to consider what is the philosophy under law in this rule which has been ours from the beginning and it seems to me it’s the important — that doesn’t here in the very term judgment.

    Beatrice Rosenberg:

    Judgment is the ultimate end of a judicial proceeding.

    This is how a system of law operates.

    You can’t treat it lightly.

    It can’t be wiped out of the books easily and so faced with the significance of judgment, there were really two routes.

    One is the English route, which gives the appellate court a great deal of power to effect the sentence, but which does set aside a judgment completely only for very grievous error, and which — one that is done — does decree that there cannot be a new trail in criminal cases.

    William J. Brennan, Jr.:

    You’re speaking of the harmless error rule that the English courts applied?

    Beatrice Rosenberg:

    Well it’s really more than that.

    We haven’t timed to intuit the whole English system in a sense discourages appeals.

    I should say in general that the English seem to me to give much more weight to the unreviewable discretion of the trial Judge than we do, but if a judgment is going to result in a defendant going free, if the reverse of a judgment is going to result in the defendant going free, it seems to me inevitable that any closed case is going to be decided against the defendant.

    And it seems to me inevitable that consciously or unconsciously a feeling of that guilt or innocence is going to affect the result.

    And so if we are going to have our system which wants to keep its judgment as free from error as possible, if we have a system of appeals where we have reversal not only because an error might have influenced the verdict, but even for errors in procedure like assembling a grand jury, that don’t even go to the fairness of a particular trial.

    If this holds supervisory power of appellant reviews is to be kept, it almost inevitably follows that a — when you set aside a judgment for that kind of error which does not necessarily go to guilt or innocence, if the system is to work there might be a way where the issues can be retried, the issues represented by the judgment independently of the error.

    With the development of 2255 it seems to me the same considerations that apply on appeal apply in this situation.

    I think the principle goes beyond this case, but it seems to me this case illustrates the principle.

    (Inaudible)

    Beatrice Rosenberg:

    Well there are actually seven years before it was set down.

    He did start his motion a couple years before that and they were originally none of facts alleged so that it wasn’t a hearing, he started his motion 1961, it was heard in 1963, but of course the principles of saying whether it’s seven weeks.

    It may happen to be seven years in this case, but if this rule of law announced by the District Court is correct, then if this happens everyday, there is seven weeks you would still not be able to retry the defendant.

    So that it seems to me the principal is more important than the particular aspect this defendant has served some time.

    (Inaudible)

    Beatrice Rosenberg:

    Well it was originally denied because — and then it started to go up on appeal and at that point the defendant got counsel and came in with new evidence so that the original allegation, I don’t think it was two years, I think its about a year-and-a-half, from 1961 to 1963, but I think it’s about a year-and-a-half, but his original allegations did not have what turn out to be the crucial aspect, which was the judge’s remarks to counsel in the chambers.

    And of course this is not — this is a situation in which if he is convicted on retrial, the judge will have complete discretion on sentencing.

    So that he could allow for credit, for the time spent in jail.

    I think this case is really just that.

    The question is, are we going to adhere to the policy that has been the policy of this country since the early years of the republic and never to my knowledge not both, which is that at least as to the counts represented by the judgment.

    The setting aside of a judgment starts the case back on its course and there is an opportunity to re-litigate the issues.

    And I think it’s important that this be kept because in the long run, one doesn’t know what this decision would have been if we had the English rule.

    There Judge Tyler in effect himself said he didn’t know how Judge Weinfeld would have acted if Judge Weinfeld thought that by granting the motion under 2255, he was allowing the defendant to go free.

    It is — the possibility of a life sentence was always in this case as long as the kidnapping was there.

    And while everybody seems to have thought that adding a consecutive sentence made a difference I do not know, because it did.

    Beatrice Rosenberg:

    The statute had been amended in 1951, so that any sentence more than 45 years of time for parole is 15 years, and apparently nobody at the time was aware of that, but this is not important in and off itself.

    The significant thing is that whenever you have a close case and there obviously can be closer cases than this, it’s going to be difficult for a judge to decide the case before him if he knows that a decision setting aside the plea is going to going to result in the defendants going free.

    Potter Stewart:

    All these five charges go out one bank robbery.

    Beatrice Rosenberg:

    Yes they do.

    Well there seems to be some confusion in the record about that.

    The judge indicated he knew that as to so those.

    He had to give concurrent sentences.

    He said as to a codefendant, I would have given you 55 years, but the codefendant had two bank robberies involved, so that was different, but in that case on page 25 he said, the attorney said I’m sure Your Honor is familiar with the decisions as the other counts can be consecutive.

    Now of course it was thought at the time that the kidnapping count could be separate.

    It was only made that the decisions tend to indicate that, that would not be so and it’s not an absolutely fixed question now.

    But be as it may one of surprising things about this whole thing is that the judge, the attorney and I think Judge Weinfeld, when he got again (Inaudible), the consecutive sentences to a life sentence added something and they don’t under the statute which is 18 U.S.C 4202, the defendant would have be eligible for parole at any time.

    I suppose the kidnapping, conviction would have made things good for parole, but the additional sentence wouldn’t have affected the judgment at all.

    So I say the principle is much more important however than this case –-

    Potter Stewart:

    Your basic point is that all these things are unimportant to this.

    Beatrice Rosenberg:

    That’s right, that this case had gone to judgment and that it is our rule and now we passed in the rule and the passing of the rule is very important, because this is what enabled the Court to decide either appeal or 2255 on the basis of the case without being too concerned about possible guilt or innocence because that question can be re-determined in a trial free from error.

    (Inaudible)

    Beatrice Rosenberg:

    That’s right.

    (Inaudible)

    Beatrice Rosenberg:

    We have a judgment and a judgment is something which has to be taken seriously by a court of law.

    Earl Warren:

    Mr. Kasanof.

    Robert Kasanof:

    Mr. Chief Justice may it please the Court and Ms. Rosenberg.

    It seems to me that the government basically does not like the provisions against double jeopardy in the Constitution when it takes the provision, the position it’s taken here today.

    The protection against double jeopardy is not the protection against twice being convicted.

    It does not like the old English provisions require a former acquittal, a former tender, a former pardon.

    It is a protection against twice being as required to endure trial to be exposed to jeopardy.

    What happens in this case was that a man the federal district court charged with a serious crime, commenced a trial before a jury and because of actions on the part of the trial judge which the government now concedes were coercive in their affect, he never finished that trial.

    That was the right which was taken from him.

    That is the right which Judge Tyler found could not be restored.

    Now it is true and we do not quarrel with and I agree that basically the rule of retrial after a reversal is firmly engrafted in the law, and the government is trying to curtail this depravation of a jury trial into a retrial after reversal.

    This is — we make no claim that the fact that this was not an appeal, that’s it’s a collateral attack has any importance.

    Robert Kasanof:

    What we say is this, essentially, two wrongs were done to the defendant Tateo.

    He was coerced in a plea of guilty and a judgment was entered.

    When he went for Judge Weinfeld and Judge Weinfeld set aside that plea of guilty and that wrong was remedied, but another independent wrong connected factual part and parcel happened to him and that was that his right to have the jury originally empanelled to hear his case try and conclude that case was taken from him.

    Incidentally government is very solicitous of the defendant’s rights at this late posture, but I think that the importance of the jeopardy provision and protection maybe illustrated by the fact that though the government did not ask explicitly this involved a death penalty at the time of the first trial.

    When this came on for retrial, the government and the court below indicated at pretrial conferences that they were prepared to ask for the death penalty after the seven years.

    They were prepared in effect to punish the defendant for having set aside the judgment and we say that the rule in Green has made it perfectly clear that in order to vindicate one right you don’t have to borrow or bargain away another right, that the judgment is not a magical touchstone.

    We concede that when you set aside a judgment to the measure coequal with your attack on the judgment, you open up yourself to further proceedings, but we say that there were two things that happened.

    After the judgment was set aside case came on again for trial and there was an objection made that coercively the defendant Tateo had been deprived of his right to have the jury which originally set out to hear his trial, finish hearing.

    Now —

    Earl Warren:

    Mr. Kasanof I am wondering if — in the original trial if the Judge have made this statement this coercive statement before the jury instead of how the presence of the jury and the counsel had declined to plead his client guilty and he had been convicted to all of these offences and then on 2255, he was — he received relief because of the coercive — or we’ll say, we say that — suppose on appeal the case was reversed because of this coercive statement of the judge, would that be once, twice jeopardy if he’s tried again?

    Robert Kasanof:

    After a jury verdict?

    Earl Warren:

    Yes.

    Robert Kasanof:

    I would not press that I would not think so.

    I think that the critical thing here and Ms Rosenberg has accused us of being I think hyper technical, the critical thing here is our system of justice is always placed a special value on the right of jury trial.

    It is not just another thing.

    It is not just another technicality.

    Not every jury which acquits a defendant does so after an error free trial and there are cases.

    I don’t see say this necessarily would have been one of them but it is to sell a fundamental American right, the right of having a jury of peers decide it, too cheap to say that a case which result in an aborted trial, in a failure to get to the jury where the defendant not by is consent, not by a solicitude on the part of a court for his rights, but by a coercive action, a court has that right, the right to have his case considered by what the courts often call his jury.

    There comes a point in criminal proceedings when both sides finally must get — come to a final litigation.

    When that jury is in panel, when that case begins, something very special has happened and it is that right which we are asking this Court to protect.

    Potter Stewart:

    Well, Mr. Kasanof in the Chief Justice’s hypothetical case your client would have been denied the right to a fair trial by his jury as you say because of the prejudicial remark by the trial judge before the jury, and yet you can see that if he had appealed a jury conviction, he would have — the government would have entitled to a try him again.

    Robert Kasanof:

    Let me say this Mr. Justice Stewart.

    What I am trying to say is that the right of appellate review which is not always been with us.

    It is an additional benefit conferred on the defendant above and beyond the right of jury trial and he gets not only a right to have a jury consider his case, but he gets a right to have that jury’s consideration reviewed, but here he never had the first right, the basic right to which appellate review was a gloss, an addition, a further benefit, he never had the right to have the jury consider his case at all.

    The mistrial cases have consistently held and I think the rule is very clearly applicable in this case, but that unless the defendant consents, unless there is some imperious necessity there is no suggestion here of any such thing or unless the Court terminates the trial because of a solicitude for the defendant, well, none of those things are present and yet the trial which commenced was terminated.

    It was terminated coercively.

    It seems to me a strange result that the courts in addition to the trial being terminated coercively, a coercive plea was taken and a coercive sentence imposed and the defendant suffers under that he should be worse off now than if, I’ll put it this way, the Trial Judge had said to counsel of the (Inaudible) on this case unpleasant, don’t care to proceed.

    If you insist on proceeding, if you won’t move from this trial I’m going to give your client 25 years and a life sentence on top of that.

    If counsel had gone on — gone out and under the shadow of that kind of compulsion, under the shadow of that kind of threat had moved for mistrial, when that case came on for a retrial, it seems to me that a plea, a former jeopardy would certainly have been sustained, if the —

    (Inaudible)

    Robert Kasanof:

    Yes, he would have had a jury verdict and juries do and that’s why we have juries, that’s the glory of the jury system is that Judges do not snap juries through hoops Your Honor no matter how coercively and it may be that most cases a trial Judge can control a juror, but American juries that anyone who sits in a busy Trial Court sees jury work their own will, the will of a consensus of justice, their own idea, very often a trial Judge can mold them, but not always, it is not a certainty that the trial Judge can control a jury’s verdict, by no means.

    Earl Warren:

    But he can’t always control the defendant in his council either can he and to — and pleading guilty is your mandate?

    Robert Kasanof:

    No, but that question was, I think it’s conceded that the impact here was of a sort that just overpowered, the defendant was over —

    Earl Warren:

    Well I think that the Court in reversing a statement that the trial Judge made in open Court would be doing exactly the same thing, wouldn’t he?

    Robert Kasanof:

    No.

    I think that there is a similarity, but I think that again the critical question is the — as we see it is the right to get the jury.

    If I might add that I take some comfort that this is not a totally irrational view from the fact that I’m informed that next month’s Harvard Law review comments on the re-prosecution problem, double jeopardy and the re-prosecution problem and treats favorably Judge Tyler’s decision in this case.

    Now, I would — I would like if I may try — to try and answer what seems to me to be the troublesome question, and it seems to me to have turned the emphasis of the case around and that is, why this case really is basically a mistrial case and is not a reversal case?

    The government wants to treat this as another instance of something that has gone through, come to judgment and has come back, so and I think the circumstances in which the judgment was arrived at here are extremely important.

    (Inaudible)

    Robert Kasanof:

    I’m not sure, I’m not sure it would, I’m not sure that in a case — in that case it would be.

    (Inaudible)

    Robert Kasanof:

    What — you.

    Oh I beg your pardon I thought you meant that the trial had been terminated without counsel.

    If the trial had been terminated without counsel because the Judge had pushed an unassisted defendant into consenting or varying a mistrial, I think that that defendant would be protected against a second jeopardy Your Honor.

    (Inaudible)

    Robert Kasanof:

    Yes.

    (Inaudible)

    Robert Kasanof:

    I think that would be much closer, but I would say that that — and by the standby my special value on the right of getting to the jury.

    I think that that is what the mistrial cases mean, that’s why this Court, I take it in Downum, the prejudice to defendant like Downum who sat for merely two days if that case had been adjourned, I don’t think there is any serious question he would — that he would have been able to claim a failure of speedy prosecution.

    Earl Warren:

    We will recess.