Woody v. United States – Oral Argument – January 14, 1959 (Part 1)

Media for Woody v. United States

Audio Transcription for Oral Argument – January 14, 1959 (Part 2) in Woody v. United States

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Earl Warren:

Number 135, Billy G. Woody, Petitioner, versus United States of America.

Mr. Woolsey, you may proceed.

Clarence O. Woolsey:

Mr. Chief Justice and Associate Justices of the Court.

This case involves the violation of the National Motor Vehicle Theft Act, the Dyer Act.

Billy Woody, the petitioner, was convicted in the U.S.District Court for the Western District of Tennessee.

The question that is presented under his conviction is whether or not he can be given a five year sentence for transporting a stolen automobile and an additional five years sentence to be served consequently for receiving and concealing the same automobile.

Now, the statutes are — that are involved are 18 U.S.C.Section 2312, which is Section 3 of the Act, which concerns the transporting and which provides for a maximum sentence of five years or a fine of $5000 or both.

Section 2313, which is Section 4 of the Act, imposes similar penalties for whoever receives, conceals, stores, barters, sells or disposes of a stolen vehicle which is moving in interstate commerce.

On June the 24th, 1954, the petitioner was tried before a jury and the indictment charging him with the crime contained two counts.

Count one stated that on or about the 16th of March, 1954, Billy G.Woody transported in interstate commerce a certain Buick automobile which it described from Sheffield, Alabama to Savannah, Tennessee knowing it to be stolen.

The second count of the indictment stated that on or about March the 16th, the same date in 1954, the petitioner received and concealed the same automobile, which was then moving in interstate commerce between Sheffield, Alabama and Savannah, Tennessee.

The jury found him guilty on both counts.

He was sentenced five years on the first count and fined $125.

He was sentenced five years on the second count and fined $125 with the sentences to be served consecutively.

Now, on January the 12th, 1957, over three years later, this petitioner applied to the District Court for permission to proceed as a pauper on a motion to vacate the excess sentence.

The District Court dismissed that motion.

The petitioner appealed to the Circuit Court of Appeals for the Sixth Circuit where the motion was denied because the petitioner’s contention that multiple punishments had been inflicted, had long since been decided otherwise.

The memorandum opinion of the Sixth Circuit Court of Appeals assumed and conceded that this was one transaction.

The petitioner’s application for writ of certiorari of October 21st, 1957 was granted by this Court on June the 30th, 1958.

As we stated, the memorandum opinion of the Sixth Circuit assumed and conceded that the petitioner’s conduct was a single continuous act.

We contend that it was.

We contend further that even though the Dyer Act defines several punishments that when one continuous force of conduct by one person results in a violation of more than one section of that statute, that Congress did not intend that multiple cumulative punishment should be inflicted.

That since there is only one course of conduct involved, Congress did not intend for punishment to be pyramided and the cumulative punishment inflicted upon the petitioner was therefore erroneous under the cases of this Court dealing with the fragmentation of crimes for the purpose of punishment.

The applicable provisions of the Dyer Act are now substantially the same as they were when they were first enacted, aircraft had been added.

Now, this Act was specifically designed to punish the person who transported a stolen automobile in interstate commerce.

The statements made by Representative Igoe and Representative Dyer as well as by Senator Cummins, when this Act was discussed in Congress, indicate that it was aimed at the transportation of automobiles, stolen automobiles in interstate commerce.

And in addition to that, the short title to the Act since 1940 has read, “An Act to punish for the transportation of stolen motor vehicles or aircraft in interstate or foreign commerce”.

The statements of the member of Congress in the discussion of this legislation are mentioned in our briefs and also mentioned in the Government’s brief.

It’s our contention that they clearly show that they were concerned with stopping the organized theft of automobile.

They were concerned with the transporting of an automobile from one State across a state line to another State and there, turning it over to a fence or a confederate who thereafter concealed, stored or disposed of the vehicle.

Clarence O. Woolsey:

The heart of the crime, as discussed by the gentleman in Congress, was the transportation.

But in order to completely get the ring, which they were concerned with, Section 4 was added to take care of the confederate or fence in the other State who disposed of the case.

We think that therefore that Section 4 was enacted for the purpose of reaching this other party and not for the purpose of pyramiding punishment on the person who violated both sections of the Act with one continuous course of conduct.

Does that mean.

Mr. Woolsey (Inaudible) this man was charged with transporting and then selling (Inaudible)

Clarence O. Woolsey:

I don’t think I could say that, Your Honor, if he is charged with transporting himself.

Why?

Clarence O. Woolsey:

Because the very nature of the Act of transporting includes, as an integral part of the Act, the receipt of the car and the concealment of the car.

And that’s what this man is charged with.

Was it — there evidence in this case that there were affirmative action of concealment to change the license number or he repainted the car?

(Inaudible) there was something more than merely receipt of the car that was proved.

Clarence O. Woolsey:

It’s our position, Your Honor, that that additional matter of evidence which you referred to makes absolutely no difference and, to me, it does not make any difference because by the act of transporting, he, of necessity, received the automobile.

By the act of transporting, we say that of necessity, he concealed the automobile.

(Inaudible)

Clarence O. Woolsey:

And the fact that he did more of the same thing should not change the picture at all.

But in all event, you would give — you would give an effect to (Inaudible) at least as far as sale is concerned, it reaches beyond the transporting.

Clarence O. Woolsey:

Well, to me, at least —

(Voice Overlap) —

Clarence O. Woolsey:

— that’s different.

That — it impresses me as a different situation.

Our position is that there’s nothing in the language of Congress when it passed this Act that would justify multiple punishments in the case of this kind.

Now, if — if the Court —

William J. Brennan, Jr.:

(Inaudible)

Clarence O. Woolsey:

Yes, sir.

William J. Brennan, Jr.:

(Inaudible)

Clarence O. Woolsey:

Yes, sir, it is.

You will find it at pages 4 and 5.

William J. Brennan, Jr.:

4 and 5.

Clarence O. Woolsey:

Yes, sir.

William J. Brennan, Jr.:

Thank you.

William J. Brennan, Jr.:

May I ask one other question?

I notice that — what was appealed to the Court of Appeals, am I correct, is the order denying leave in forma pauperis which is at page 29.

Is that what (Inaudible) of the Court of Appeals?

Clarence O. Woolsey:

Yes, sir.

If the ruling of the District Court on that motion or in — his application to proceed as a pauper for the purpose of that motion —

William J. Brennan, Jr.:

(Inaudible)

Clarence O. Woolsey:

— was appealed.

William J. Brennan, Jr.:

— significance or not, but I notice that the trial judge here is denying that motion and says that this particular proceeding was an attack upon the indictment and then goes on to say a matter which should have been raised ever before the time of the trial.

Now, with this position on the ground that 2255 did not apply because it was an attack upon the indictment, it should have been made out before (Inaudible)

Clarence O. Woolsey:

Are you referring to the Sixth Circuit?

William J. Brennan, Jr.:

I’m referring to the — now, this is at page 29 of the record, the order denying leave to proceed in forma pauperis.

Clarence O. Woolsey:

As I understand it, the District Court said that it was not presented in good faith.

William J. Brennan, Jr.:

And — well — is this all that we have of — in the way of record of the action of the District Court at the time?

Clarence O. Woolsey:

Yes, sir, that’s all.

William J. Brennan, Jr.:

Well, you’re getting — the reason I asked this question, you’re — you’re discussing now a matter in the record as a way of evidence (Inaudible)

Clarence O. Woolsey:

I am not intending to discuss that portion of the record which has the evidence in this case in it, which was printed at the request of the Government.

William J. Brennan, Jr.:

Well, now, what I’m trying to get at is, is the issue before us whether on the indictment that there might have been double function?

Clarence O. Woolsey:

That is my conception of the issue.

William J. Brennan, Jr.:

Just on the indictment.

Clarence O. Woolsey:

Yes, sir.

William J. Brennan, Jr.:

You — you concede that that’s the only issue we have before us?

Clarence O. Woolsey:

Yes, sir.

William J. Brennan, Jr.:

Well, now, then I get back in.

Do you mean the disposition of the — of the District Court as a disposition only of the attack upon the indictment?

Clarence O. Woolsey:

No, sir.

I — I — as far as the District Court is concerned, it refused to even consider his motion, but the Circuit Court of Appeals for the Sixth Circuit said, and seem to me to assume and concede in its memorandum opinion that it was one continuous transaction.

But he said even so it’s long since been decided under the cases that this is not multiple punishment.

Felix Frankfurter:

Mr. Woolsey —

Clarence O. Woolsey:

Yes, sir.

Felix Frankfurter:

— my Brother Brennan raises, to me, a very serious question, namely, what the scope of review — what — what the scope of review before us is which I take it in turn depends on what it is that the Court of Appeals thought it was deciding.

Felix Frankfurter:

Now, am I wrong in reading the Court of Appeals to have passed on the — in affirming the order denying plea to appeal, it went — it made an independent examination.

District Court has said if I’m writing if he is not taking in good faith and an independent examination fails to disclose the certification was unwarranted.

And then the last paragraph of the Court of Appeals, the motion to remand is also denied for the reason the facts relied upon are not in dispute and were fully disclosed by the motion in the files and records of the case in the District Court.

Therefore, that which is before us now, as I understand it, the — the whole record, is what was before the Court of Appeals and what it went on, am I wrong about that?

Clarence O. Woolsey:

I think that is what’s before Court, Your Honor.

The record — whatever the Circuit Court of Appeals had to consider in —

William J. Brennan, Jr.:

Well —

Clarence O. Woolsey:

— in this case, I believe, is now before this Court.

William J. Brennan, Jr.:

Well, I (Inaudible) does that mean that the original trial record was before the Court?

Clarence O. Woolsey:

No, sir, it was not.

William J. Brennan, Jr.:

Although we know what was before the Court of Appeals?

Clarence O. Woolsey:

We only think that I know that was before the Court of Appeals was this petitioner’s motion to which he attached certain exhibits including the indictment and his suggestions in support of his motion to the effect that he had been inflicted with multiple punishment for one continuous transaction.

Felix Frankfurter:

But — but on the base — what is in the files and records of the case in the District Court?

Clarence O. Woolsey:

The — that —

Felix Frankfurter:

It doesn’t mean merely the clerk’s journal entry, does it?

Clarence O. Woolsey:

I think it was involved in the — in the filings that were there.

And as I understand —

Felix Frankfurter:

And records, files and records.

Clarence O. Woolsey:

All right, sir.

Any record, but there was no record of the evidence there.

Felix Frankfurter:

Well —

William J. Brennan, Jr.:

That, as I get it —

Clarence O. Woolsey:

It had not been transcribed.

William J. Brennan, Jr.:

That’s been transcribed only since this case came into the Court, isn’t it?

Clarence O. Woolsey:

Yes, sir.

William J. Brennan, Jr.:

Well, what is meant by saying the facts relied upon are not in dispute were the facts whether they were transcribed or not, summarized so that they were before the Court?

Clarence O. Woolsey:

I interpreted that to mean, Your Honor, the facts as shown on the face of the indictment and the facts which the petitioner states in this motion, which the Court didn’t even consider.

Felix Frankfurter:

Didn’t the Government respond — did the U.S. Attorney respond to that motion?

Clarence O. Woolsey:

I believe it was a short response.

Felix Frankfurter:

I suppose it —

Clarence O. Woolsey:

It was a very short paragraph.

Felix Frankfurter:

— I suppose it’d be easy enough if it becomes relevant for the Government or for you to supply as what there was before the Court of Appeals.

Clarence O. Woolsey:

Your Honor, I think it’s all in this record.

Everything — I — I believe that everything that was before the Court of Appeal, exclusive of the printed testimony, was before the Sixth Circuit at the time it gave — handed down its memorandum opinion.

Now, that’s — that’s my —

Felix Frankfurter:

Does that mean that the —

Clarence O. Woolsey:

I would say that goes over —

Felix Frankfurter:

Does that mean up to page — up to page 52, Mr. Woolsey?

Clarence O. Woolsey:

Yes, sir.

Felix Frankfurter:

Ms.– Ms.Rosenberg would know about that too, so —

Beatrice Rosenberg:

Correct.

Clarence O. Woolsey:

Now, should the Court disagree with our contention that the intention of Congress is so plain and should there be any doubt as to what Congress intended as to punishment under the terms of the Dyer Act, then, I think, under the holding in the Bell case that the petitioner is entitled to the relief he requests because this Court has held that in those instances where Congress does not make its intention plain and unambiguous in regard to punishment, that the Court will construe it with leniency for the petitioner.

Now, while there has been some comment in the cases rather the futility of color-matching of cases in an instance of this kind, I feel that in justice to the petitioner, I should briefly refer to leading cases, most of which have discussed yesterday and today on this point.

Felix Frankfurter:

Before — may I before —

Clarence O. Woolsey:

Yes.

Felix Frankfurter:

— without wanting to interrupt you, is the Court of Appeals correct in saying that — where is that 39 or 40, that every Court of Appeals, but that’s not only it — in a series of opinions, but every Court of Appeals has — has decided the way it has decided, is that the state of the authority?

Clarence O. Woolsey:

That’s my understanding, sir.

Felix Frankfurter:

All right.

Clarence O. Woolsey:

I would like to review these cases for the purpose of showing —

What pages?

Clarence O. Woolsey:

— that under any test laid down by any of these cases —

Felix Frankfurter:

49 or 50.

Clarence O. Woolsey:

— the petitioner is still entitled to the relief which he request.

The first case in line, Albrecht against the United States where the defendant was convicted for possession and sale of the same liquor.

The distinction, as I understand, of the Court in that case was that I may possess liquor and not sell it.

I may sell it and not possess it, therefore, Congress intended to provide punishment for each step.

Now, there’s a direct contrast in our case.

It’s our contention that by the very nature of the Act, it is highly improbable, if not impossible, for the transporter of a stolen vehicle, not only to transport but to receive and also conceal, the very nature of the Act includes all.

Consequently, it is one transaction, which is not the case in Albrecht, as I understand the opinion of the Court.

In United States against Adams, the officer of a federal reserve bank, one in the system, had made two entries to accomplish the fraudulent receipt of $75,000, both entries had reference to the same transaction were of correlated means of accomplishing a single fraud.

Clarence O. Woolsey:

The statute punished any officer of a bank who made any false entry with the intent to defraud.

The Court held that the mere multiplication of the entry, all at the same point and with a single intent should not multiply the punishment.

They had one statute, one amount was obtained by two entries, both aimed at the same purpose.

In our case, we have one statute, we have one automobile but it was transported, received and concealed in one continuous transaction by one party, Billy Woody.

Blockburger against the United States, as I understand it, held that in determining whether or not one continuous transaction contained separate offenses or whether or not it should be broken down, that the test was whether or not the proof required, the evidence required to sustain a conviction on one count would also, without additional evidence, sustain a conviction on the second count.

Now, the two of the charges laid against this petitioner, Sections 3 and 4, in our opinion, required exactly the same evidence, no additional evidence required because the act of transportation includes receipt and concealment.

Michener against the United States concerned the (Inaudible) rights.

Under the terms of the dissent in that case, I think also that our case, this petitioner’s request should be granted because the receipt and concealment of this automobile, which he transported, were but an incident to the transportation which was charged in the first count and the concealment was an integral part of the unlawful transportation.

United States against C.I.T.Credit Corporation concerned an indictment in 32 counts.

The Act provided for $10,000 for violation of any provision and the question presented was whether or not a fine of $320,000 should be imposed.

This Court said no.

The offense punishable under the Act was for a course of conduct, that the violation arose from a singleness of thought from a single impulse or conception and that therefore, it is subject to one file.

Likewise in our case, the petitioner’s transportation receipt and concealment of the stolen automobile is one course of conduct, one offense from a single thought, purpose or action.

And as to him, the aggregate of these acts is a single course of conduct and we contend the single offense.

Bell against the United States I have discussed in connection with the intention of Congress, it involved the Mann Act, two women transported by one man at the same time in the same car.

The Court held that there was only one offense.

Now, neither from the congressional history of this Act or from the Act, itself, can you, in my opinion, come to any conclusion except this was one single transaction, the heart of which was the transportation and as a part of which, which merged with the transportation, the receipt and concealment.

Prince against the United States involved a bank robbery section.

Charles E. Whittaker:

(Inaudible)

Clarence O. Woolsey:

Yes, sir.

Charles E. Whittaker:

(Inaudible)

Clarence O. Woolsey:

Yes, sir, I think that it does.

I think the car is just as efficiently concealed when he drives it away as it is when he puts it in the garage, repaints it or does anything else to it.

It’s certainly concealed from the owner of the automobile, it’s gone.

Charles E. Whittaker:

Your argument is that (Inaudible)

Clarence O. Woolsey:

Yes, sir.

Now, that’s provided, of course, Your Honor, that — that this Court is entitled to go in to that portion of the record which the Government has had printed, which concerns the evidence.

Now, I think that evidence puts my man in a bad spot, but I don’t think it changes the situation one bit.

Felix Frankfurter:

May I — may I —

Clarence O. Woolsey:

Yes, sir.

Felix Frankfurter:

— put this to you, Mr. Woolsey, that Judge (Inaudible) if it was in his order denying leave while he set forth in the recital that the attack is made on the basis of the indictment, he denied the order, in denying the order he said this Court that as trial judge in the case, at the time it was tried, and is thoroughly familiar with the facts as they were then presented all of its parties and all of its recorded (Inaudible).

Would that have any bearing on the first?

Clarence O. Woolsey:

I think not, sir.

Felix Frankfurter:

You think not.

Clarence O. Woolsey:

No, sir.

Charles E. Whittaker:

(Inaudible)

Clarence O. Woolsey:

Now, there were some mentioned by the trial judge of continuous acts on the part of this petitioner to gain some relief whether or not this was the first, second or third petition filed for the correction of the sentence and a motion to correct the sentence, I do not know.

Charles E. Whittaker:

(Inaudible)

Clarence O. Woolsey:

I can’t answer that, Your Honor, nor can I answer your question as to how many there.

I — my information is limited to exactly yours in respect to the Court — District Court’s state.

I don’t know what it is.

The Prince case, in two counts, involved entering a bank with intent to commit a felony and the same individual, the one who had committed the robbery, and he was sentenced to serve consecutively sentences on each count.

This Court held that the statute, although dealing with the limited purpose and with an inconclusive legislative history, that this was a continuous transaction and that the intent to commit felony merged with the completed crime of robbery.

Now, it’s our contention that the transportation, the receipt and the concealment provisions of the Dyer Act were designed primarily to punish the transportation of stolen automobile, that the concealment, as well as the receipt, merged with the act of transportation.

Gore against the United States, in discussing the Blockburger case, mentions not only the fact concerning additional evidence to establish the crime under different counts but also mentions the fact that the three laws which are involved in Blockburger, and I think also in Gore, were — had different times of origination and were for different purposes.

I think 1909, 1914 and, I believe, 1925, but they — the sections were passed at different times and had a different origin in time and purpose which is not the case here.

This Act was passed with the two sections in it.

It has been amended to include aircraft but it has not been substantially changed in any respect.

Therefore, we say that Congress intended to punish as a single offense when both violations arose through a continuous single transaction.

Felix Frankfurter:

Mr. Woolsey, may I put —

Clarence O. Woolsey:

Yes.

Felix Frankfurter:

— ask you this question.

I think I appreciate — I think I understand the reasons why you pressed that the hearing, the trial hearing are not relevantly before us, not to be considered.

I think I understand the reason why you (Inaudible) assuming we agree with you.

Assuming further, however, that it appeared that the trial minutes, what took place at the trial would take the case on the facts out of the general rule which you urge, would you think it was appropriate or inappropriate not to reverse the case on your general proposition but to send the case back to the Court of Appeal for consideration of the case on the whole record including what took place at the trial?

Clarence O. Woolsey:

It’s my sincere feeling, Your Honor, that this case should be sent back to the District Court with an order to correct this sentence and to eliminate the second five-year term —

Felix Frankfurter:

Yes.

Clarence O. Woolsey:

— which was to be served in sentence.

Felix Frankfurter:

I understand that.

But assume that the Court concludes that the facts make a differentiation, some of the questions that some of my brethren had put —

Clarence O. Woolsey:

Now, the facts —

Felix Frankfurter:

— they — that they were not — they were not changing the — what will be placed and whatnot, assume that one reaches that conclusion and doesn’t agree with your — the applicability of your general proposition to the record, the facts disclosed at the trial and a determination whether that would be so or not, might become relevant either for us to decide or for some court to decide, 2255 is a kind of a habeas corpus in a way, a kind of a broad equitable proceeding, isn’t it?

Clarence O. Woolsey:

As I understand it, yes.

Felix Frankfurter:

(Inaudible)

It might be the place here to decide, although it wasn’t before the Court of Appeals.

On the other hand, if it — if it does make a difference, and if it wasn’t before the Court of Appeals and it might be proper, I put that to you.

Clarence O. Woolsey:

Well, the — the thing —

Felix Frankfurter:

I understand your position, that you say even on the fact in this case that there is no differentiation, it is one transaction.

Clarence O. Woolsey:

Yes, sir.

Felix Frankfurter:

I understand that’s your position.

Supposing that didn’t make a difference, what Justice Frankfurter suggested, how is (Inaudible) including a situation which it involves separate acts of concealment or (Inaudible)

Clarence O. Woolsey:

Well, the thing that bothers me about this indictment, if you are going to consider the other testimony in this case, which is in the record, is this, and it may be of no importance, but it — it bothers me.

This indictment says that on or about the 16th of March.

He not only transported but he received and conceived on the same dates, both counts.

Now, as a matter of fact, the portion of the brief that the Government has printed or the portion of the record and in their brief, they — they show that — that this automobile was stolen on the 2nd of March and recovered on the 8th of April, that on the 3rd of March, this petitioner applied for a license in Sheffield, Alabama for that automobile and used a motor number which was incorrect.

It was a changed motor number.

It also shows that on the 16th of March, this petitioner and another man went back to Sheffield, Alabama, I believe it was, and a bill of sale was executed to this petitioner.

This testimony will also show that on the 1st of April, this petitioner painted this Buick, which was a two-tone black and yellow car, all black.

He did it out in the road or out in the open by the side of a busy highway with a blanket or some sort of a cover thrown over the fence.

Why that was there?

I don’t know.

But one explanation is to keep the wind from blowing dust on the paint, the new paint.

(Inaudible)

Clarence O. Woolsey:

Pardon me?

(Inaudible)

Clarence O. Woolsey:

Another would be that he was trying to hide the automobile obviously, but if you — if you accept my premise, which — which, I believe sincerely, he conceals that when he drives it off, it’s just as lost, just as concealed from the man that owned that automobile, as if he dug a hole in the ground and covered it up.

And I say the fact that he does more concealment add nothing to him.

Now, on or about, it was about — takes you as far back as the 3rd of March, 13 days, seems quite a way to go to me.

Thank you.

Earl Warren:

Ms.Rosenberg.

Beatrice Rosenberg:

May it please the Court.

I think the first question in this case is what is before the Court because as the peculiar way in which this case came before this Court.

This was a second motion under 2255, Your Honor, had been denied leave to proceed in forma pauperis.

And there had been a petition for certiorari to this Court, which the Court had denied in 1955, that’s number 227 Miscellaneous of the 1955 term.

He had raised other issues in addition.

Felix Frankfurter:

What — what was it that would (Inaudible)

I didn’t —

Beatrice Rosenberg:

There had been a previous motion under —

Felix Frankfurter:

2255.

Beatrice Rosenberg:

— 2255, which raised other issues but did raise the same contention as well.

But, as I read the opinion of the District Court in this case, it did not particularly based it’s denial of leave to proceed in forma pauperis on the ground which it could have done, that it was the second motion.

It went on to say that this was a matter which should have been raised on appeal and the trial judge is very familiar with the facts and is convinced there is no merit in it.

Felix Frankfurter:

Did the — did the original conviction go up on appeal to the Court of Appeal?

Beatrice Rosenberg:

No.

Felix Frankfurter:

No.

Beatrice Rosenberg:

No.

The original conviction had not been appealed.

Now, at the time that the trial judge said this —

(Inaudible)

Beatrice Rosenberg:

Well, I — I don’t — I can’t tell, Your Honor, because I don’t know whether he really — the transcript had not been transcribed, the — the record of the trial.

He did not have a transcript before him.

And when he said, it’s on page 30 of the record, this Court said a trial judgment in the case at the time it was tried and is thoroughly familiar with the fact and is convinced there was no merit and so on.

I just can’t tell whether he is saying that on these facts, there was adequate proof of separate acts of concealment or —

William J. Brennan, Jr.:

(Inaudible)

Beatrice Rosenberg:

Well —

William J. Brennan, Jr.:

(Inaudible)

Beatrice Rosenberg:

Well, I think from the charges of the plaintiff, both these things are possible because there is no question that at the time he was deciding this motion, he had — had six cases in the Sixth Circuit.

The Sixth Circuit happened to have ruled on this question more than the others, which said that even if they are part of one transaction —

William J. Brennan, Jr.:

(Inaudible)

Beatrice Rosenberg:

I —

William J. Brennan, Jr.:

(Inaudible)

Beatrice Rosenberg:

Well, these — these that are served in forma pauperis, it’s hard to say.

Some of them —

William J. Brennan, Jr.:

What I’m trying to get at is whether on this question, whether or not (Inaudible)

Beatrice Rosenberg:

Your Honor, if you’ll bear with me, I was going to discuss that.

But I just wanted —

William J. Brennan, Jr.:

(Voice Overlap) —

Beatrice Rosenberg:

— to get this history first —

William J. Brennan, Jr.:

(Inaudible)

Beatrice Rosenberg:

— because — we will get to it.

As I say, this is what the trial judge said, and I can’t tell that, as I think, he was putting it on two grounds of the indictment, figure out he was saying, “I remember the facts and there is nothing to it,” and any way even taking petitioner’s allegation, that wouldn’t be a legal ground.

And he had ample basis for that in the decisions that his and other circuits at the time.

Felix Frankfurter:

Well, unless he — well, let me put — let me put it the other way.

It’s a very common practice, I believe, among district judges sitting in — federal district judges sitting in criminal cases do what the old — what the English judges in to this day follow the testimony and make notes in their books — I mean their own — their own shorthand.

Beatrice Rosenberg:

I don’t know whether he did or not.

He says he is familiar with the facts.

I don’t —

Felix Frankfurter:

Well, I mean that’s a very —

Beatrice Rosenberg:

— we have no indication of what he based that on.

Felix Frankfurter:

Isn’t that — isn’t that true?

That’s a very common —

Beatrice Rosenberg:

Yes —

Felix Frankfurter:

— practise.

Beatrice Rosenberg:

— some — some judgment to —

Felix Frankfurter:

In the Library of Congress, I don’t know how many hundreds of volumes of the minutes written down in longhand by Judge Hand when he was a district judge in great detail.

Beatrice Rosenberg:

Well, as I say, I — I — we just don’t know.

There is no indication.

All he said he was familiar.

Now, it goes up to the Court of Appeals, and that’s on page 49 of the record.

And they say first that the law is against petitioner in this and every other circuit that’s passed on.

Beatrice Rosenberg:

And now, I take it is even assuming that it’s part of one transaction as he alleges, this would still be two different offenses.

And when the Court says, as it does at page 50, with respect to the motion to remand, the motion to remand is also denied for the reason that the facts relied upon are not in dispute and were fully disclosed by the motion.

In the light of the cases and in the light of the facts that the record was not before the Court, I think this can be read only as saying even if we take the fact as petitioner alleges them to be that this was part of one transaction, we still hold that there would be two offenses.

And as a matter of fact, the number of the cases that they cite say so, so that — I think that’s the bare reading of the opinion of the Court of Appeals.

And that was position that the Government met in its brief in our position to certiorari.

It says, “Even on this assumption, concealment would be something separate from transportation and therefore possible.”

Then this Court granted certiorari.

Now, it’s true that technically what was before the Court of — what was before this Court at the time of the grant of certiorari was the denial of a motion of leave to proceed in forma pauperis.

But with the authority, the power it takes back of this, the Court took it in that posture and decided the merit.

Now, it seems to us that the Court took this case for the merits too since the Court of Appeals, although denying leave to proceed in forma pauperis, has passed on the merit on the basis of petitioner’s allegation, in effect, sustained the demurrer to his allegation.

They said, “Even saying what you — what you said was true, you haven’t made out a case.”

Well, now —

Felix Frankfurter:

But there is a difference — may I ask this.

What you last said — said in effect, assuming everything you say is practically a demurrer, the old fashion demurrer.

But there is a difference in the — in the fact, in the disclosure of what actually took place in — in this case between what would appear if you had no more than up to page 52, and what you draw upon from the transcript of hearing, is that correct?

Beatrice Rosenberg:

That’s correct.

Felix Frankfurter:

I meant no argument.

I just want to know whether that’s so.

Beatrice Rosenberg:

That’s correct.

Felix Frankfurter:

And therefore, there is a question whether if you draw some strength from a transcript of hearing which, in the nature of things, couldn’t have been before the Court of Appeals, is that correct, too?

Couldn’t have been before the Court of Appeals.

Beatrice Rosenberg:

No, it was not before the Court of Appeals.

Felix Frankfurter:

All right.

Therefore, it can draw strength from something in the transcript of the hearing.

It wasn’t before the Court of Appeals but is now printed, then it raises the question that Mr. Woolsey properly raised as to whether you are entitled to raise that.

Beatrice Rosenberg:

Well, our view of it —

Felix Frankfurter:

(Inaudible) come to that.

Beatrice Rosenberg:

Our view it is a little different, Your Honor.

Felix Frankfurter:

(Voice Overlap)

sure that you couldn’t get — that one couldn’t get the facts merely from the moving papers under 2255.

Beatrice Rosenberg:

No.

Felix Frankfurter:

All right.

Beatrice Rosenberg:

That’s clear.

That’s the problem.

The — the Court of Appeal sustained a demurrer.

This Court indicated a desire to hear the merits.

And that — at that point, petitioner made a motion on his own, originally before counsel was appointed to him that he wanted the record.

Now, as I am going to explain a little later when we get to it, the Government’s position has been and consistently been that where the facts are undisputed, the question of multiplicity of punishment for one of them is one which is available on collateral attack.

We never denied that.

And therefore, the question is, was this a case where the fact could be conceded and therefore, the merits raised.

And so with that in mind we said, “Well can we — let’s get the record and see can we concede the petitioner’s allegations are correct.”

And as it turned out when we got the record, the record, instead of aiding petitioner, was clearly not in his — not helpful to him, and that was the situation.

Now, in the Gore case, it’s the other way around.

The same situation to some degree, without denials of leave, happened in Gore.

When the Court took the case on the merit, the petitioner said, “We’ve made these allegations.

We’d like to be able to prove them.”

The record was furnished to him because obviously, on the collateral attack on the judgement, the burden of proof on the allegations will rest on petitioner.

And so our position is that if the record can’t be considered, you’ve got to take the case in the — in — pass your most favorable to the Government and therefore, you’ve got to assume that an indictment which could cover different acts does.

This lot of cases generally, that principle goes through all habeas corpus jurisdiction.

If we can’t get to the record, you’ve got to take the record in as like most favorable to the Government.

Felix Frankfurter:

But you can’t — when you say, “If you can consider the record,” and that raises the whole question.

Beatrice Rosenberg:

And that’s what I’m coming to.

Felix Frankfurter:

But if you can consider a record for which you rely not on the general proposition, which, from the Government’s point of view, is all you need in this case, but you say you don’t have to reach that general position or no matter what you think of it, this doesn’t come within the disputed problem, isn’t that right?

Beatrice Rosenberg:

Well, that’s right.

Felix Frankfurter:

So that — so that you better take that defense if you can for the (Inaudible) whether what use — what proper use we could make to show is this record before us for judicatory purposes.

Beatrice Rosenberg:

This — that is just what I’m coming to, Your Honor.

Felix Frankfurter:

All right.

Beatrice Rosenberg:

That’s the first question here.

Now, this, as we understand it, is the situation with respect to record.

This Court decided way back in Ex parte Lang, in Ex parte Schnell, that where on the face of an indictment, it was — it could be shown from the indictment and the judgment that a sentence was excessive or in violation of double jeopardy.

Beatrice Rosenberg:

That was the matter that could be reached on habeas corpus.

This was at a time when there was no appeal in criminal cases.

And whatever correction came, came by way of habeas corpus in an appeal in that kind of proceeding.

Now, following that precedent, even though (Inaudible) double jeopardy terms, following that precedent, even after there were appeals in criminal cases, the Court considered question of whether a particular sentence was on two counts, that is consecutive sentences, whether that was merely for one offense, that was considered an issue cognizable on habeas corpus.

And even as suggested by Halladay against Johnson, even cognizable by a motion under Rule 35 to correct an illegal sentence, and that is concededly a very limited motion, which goes only to the face of the indictment and to the judgment.

And so under 35, it’s got to be that the indictment and the judgment can’t consider anything else.But on habeas corpus, though we’ve had a somewhat broader scope, and so Morgan against Devine, in 237 United States, you couldn’t absolutely tell from the face of the indictment, but the Court says that the attack is not in dispute.

And for that reason, they went on to discuss merits, although they held against it.

Now, that was a situation in Bell against the United States.

At the time of the brief in our position in Bell, we raised the question of whether that issue was properly cognizable because from the face of the indictment, even though it was on the same day, you couldn’t tell whether it was at exactly the same time or at two different times the same day.

We didn’t press that in the brief in the merits because the authority seem to support the view, that it was proper to — if there was no dispute as to the facts, to let the — the issue was one cognizable on habeas corpus and therefore undisputed facts could be shown.

Now, there is one case that goes one step beyond that, and it’s one of the older ones, it’s the Ex parte Nielsen.

This is in 131 United States, and it’s discussed at page 18 of our brief.

Now, in Nielsen, the indictment charged that the defendant had first pleaded guilty that charged him with unlawful cohabitation until — for a certain period until May 13th.

And he pleaded guilty that — to that indictment in September.

Subsequently, he was indicted for adultery with the same woman on May 14th, the day after the termination of the first indictment.

And he made it — he filed a demurrer to that and said, “Even though the first indictment only went to May 13th at the time I pleaded guilty, the offense extended over until September and covered the second indictment.”

The Government demurred to that.

Felix Frankfurter:

Thereby admitted the facts.

Beatrice Rosenberg:

Thereby admitting the facts.

And the — it was overruled, he was sentenced.

He then brought habeas corpus.

Now, when — on the habeas corpus action, the government said, “Oh, no, this is not habeas corpus because this doesn’t appear on the face of the indictment.”

And this Court said that “If the facts of double conviction,” and I am quoting, “appears in the indictment or anywhere else in the record, of which the judgment is only a part, it is sufficient, anywhere else in the record.”

In the present case, it appeared on the record in the plea of (Inaudible) which was admitted to be true by the demurrer of the Government, we think this was sufficient.

Now, as we take these cases together, what it amounts to is this, that as long as from a record the fact appear without dispute, that there is no necessity to resolve conflict which would have been resolved by a jury or to go into matters which should have been made at the trial but hadn’t.

So long as — what is significant to the issue of multiple offenses appears somehow in the record beyond dispute.

Felix Frankfurter:

But isn’t there a great difference between all the cases in which you referred and the case in which the record, as you call it, is a unilateral presentation and the petitioner objects to that level, he doesn’t assent to it, he opposes it.

Beatrice Rosenberg:

Well, all I can say on that, Your Honor, is that we would then be having — this Court would then be called upon to decide.

Well, I suppose in a sense, a demurer — we could — you — what would happen, if — if one doesn’t look at the record in this case is, that the Court could say — that the Court of Appeals said that even if this is one transaction, it’s one of this.

It was wrong in so doing, but assuming now that it would reach that result, the case would have to go back for a hearing which petitioner would have to prove his allegation that it was all part of one transaction.

William J. Brennan, Jr.:

Well, that’s Ladner.

That’s Ladner, isn’t?

Beatrice Rosenberg:

Well, that’s Ladner.

Now, what we were arguing about in Ladner is can he be called — if he can’t prove it by undisputed fact, if he does not have the kind of a record which simply does not present the issues so that we know where it is, can a subsequent 2255 court undertake to try to decide one, whether there was any evidence at the trial on this issue, if there was a conflict, can it try to decide the conflict?

And I think maybe because we confined our discussion to that particular problem in Ladner, we gave both impression about what our general position was, as I say at the time of Bell, we didn’t dispute the right, although it didn’t absolutely appear on the face of the indictment, the problem is this goes right through habeas corpus law generally, that is — for instance in removal proceeding, the rule was in the old days that removal proceedings’ validity of the indictment so on could be considered a removal at the time of removal.

But in Rodman against Pothier in 261 United States, the Court says, “But if the issues are going to be complicated, if they are complicated the issues of law are facts, then that’s got to go over to the trial court.”

And the same way in the Bowen case, the Court said, “Well, this is a special kind of jurisdictional issue, and it doesn’t turn undisputed facts, and there is no proof that the trial judge went it or not, and so we think the Court can considerate it.”

But suggestion in the Bowen case is that it’s going to involve issues of facts that should have been before the jury then you can’t.

So that it maybe unfortunate that relief sometimes depends on whether it’s complicated or not, but it’s almost necessary realistically because when you got the facts clear and spelled out and no dispute, there’s no reason why a court couldn’t — shouldn’t consider them.

Felix Frankfurter:

Well, there is no — there is no practical problem created by doing these things otherwise than it was on here, namely, it’s merely a question of transcribing the trial minutes when — when the thing is challenged and the Government doesn’t rest on the merely legal proposition that assume it’s one transaction, we still — still can impose sentences.

If the Government doesn’t want to — if you want to — if you were here questioning on that proposition, you wouldn’t be talking about all this, wouldn’t you?

Beatrice Rosenberg:

That’s right.

Felix Frankfurter:

And you do rest on that proposition?

Beatrice Rosenberg:

We rest on it but we —

Felix Frankfurter:

All right.

But you — but you also want to have an answer to (Inaudible) don’t you?

Beatrice Rosenberg:

That’s right.

Felix Frankfurter:

Very well.

If you want to have an answer to (Inaudible) then you better have the answer.

But the trouble is you haven’t got the answer because it is in the record.

Beatrice Rosenberg:

Your Honor, I think that is not quite the whole picture in the sense that presumably also petitioner — the burden of proof would have been on petitioner to prove his allegation.

Now, this Court denied leave to proceed in forma pauperis.

You can’t, therefore, hold him to the same sort of things.

So it seems practical and reasonable to say, “Well, maybe we can agree that these are the facts and that we can go on from there.”

Now, it —

Felix Frankfurter:

Who — who is “we” maybe the —

Beatrice Rosenberg:

The Government, the Government and counsel.

Felix Frankfurter:

Well, but counsel — if counsel agrees that the — then we’ve got no problem.

Beatrice Rosenberg:

Well, I say initially when the record was ordered, when initially when the record was ordered, it was done if — in — in opposition to the motion of petitioner pro se for the projection of the record.

The Government said it maybe unnecessary to order the record because it is possible that we can stipulate with counsel as to what the facts are.

Beatrice Rosenberg:

Well, then, it turned out — it was going to be complicated.

We got the record.

On that basis, the question is, what do we do?

Felix Frankfurter:

That’s right.

Beatrice Rosenberg:

What do we do?

Do we say that this Court, “Decide this demurrer although now we know that the facts are different”?

I — or do we say, “Well, this — we now know this is the case, what you do want to do with it?”

And let me — it’s true that the Court of Appeals decided only the demurrer but our position is, if counsel is not willing to stipulate as to the fact —

Felix Frankfurter:

But Mr. Woolsey — Mr. Woolsey has a right, if I may so, particularly since he was appointed by the Court to do the best he can for his client.

His position is that he stand on the proposition that the general rule of law, which is that of the Sixth Circuit and the other circuits that the Government urges, is wrong, and he asks this Court to reverse it.

He has the right to stand on that proposition of law and say, “Well, whatever maybe the fact in the record, that’s for another day.”

And so long as the man gets to retreat, there is hope.

He has the right to take that position.

Beatrice Rosenberg:

I —

Felix Frankfurter:

I didn’t mean to say you have anything to suggest you thought he didn’t, but that’s his position, isn’t it?

Beatrice Rosenberg:

Yes, Your Honor, it’s his position.

And as I say, as far as that is concerned, I take it that technically, what’s before in this Court is a denial of leave to proceed in forma pauperis.

Although it has — but the Court said empowered, well, the Court of Appeals although it denied leave to proceed in forma pauperis indicated its position on the merit, wouldn’t make any sense for us to send it back for them to decide the merits and then take it up again, and so the merits are here, that’s this case.

The merits are here, the facts are not.

The — we don’t think that the Government would be in a position to ask this Court to decide a legal position which proves to be not the fact, not a real character.

In addition to which, may I point out, that the importance of the —

Felix Frankfurter:

But you don’t — I don’t see — I don’t see how you can — I would be glad if you let me escape, as I remember, that a plan, if the record is what it is, and if a plan that one can argue at the hearing, the testimony, then if the testimony takes it out of the single transaction rule so that — to leave your disposition, it seems a little — it seems a little what is called technical for us to be deciding that fact or legal question.

But how do you get me out of the dilemma that this record, so long as Mr. Woolsey is righty or justifiably takes the position his takes for his client, that’s all is before?

And therefore, we have to ask besides the abstract question or they will decide an abstract question and send it back to the Court of Appeal.

How do you get me out of that dilemma?

Beatrice Rosenberg:

Oh, I see.

Felix Frankfurter:

I’m — I’m open to (Inaudible)

Beatrice Rosenberg:

I think that the District Court when it said, “I am thoroughly familiar with the facts.”

Now, it didn’t have this actual record before it but it had — it had, whether through notes or other ways of recollection of what this record tells —

Felix Frankfurter:

If the case — if the case had came here directly from the District Court, as it did in the old days by 1891, I would not have had a problem because the District Court says, “I’m familiar with the fact and therefore, this Court can get the basis on which he says made that statement, to wit the hearings.

Felix Frankfurter:

But the petitioner has a right to go from the District Court to the Court of Appeals.

That’s not a discretionary right by certiorari, that’s a mandatory right.

And therefore, he is entitled to the judgment of the Court of Appeals.

And the judgment of the Court of Appeals was not on those facts because they couldn’t have known those facts.

Beatrice Rosenberg:

I think the situation is this, Your Honor, as I see it.

The District Court’s opinion says this petitioner is wrong on the fact and on the law.

Now, if instead of getting it later, this record had happened to be filed because there had been an appeal in this case from the conviction, if the Court had said, “On the facts and on the law, I saw and you are wrong,” there would have been an appeal in the Court of Appeals.

The Court of Appeals could have said, “We find you wrong on the law and therefore, we don’t get to the fact,” and then he could have come up here and we would have said, “Well, it’s true, we could have defended on the ground that the Court was wrong, I mean that the District Court had found he was wrong on the fact as well as the law.

And I don’t think the situation is different just because the District Court had the memory and we have the record on which its memory was bad.

I think that’s the situation now.

Felix Frankfurter:

Yes, there is a — there is a difference because intervening is the Court of Appeals which made a judgment and it rested the judgment on a proposition of law, and you are ready to support that proposition of law.

And —

Beatrice Rosenberg:

I’m —

Felix Frankfurter:

(Voice Overlap)

but if you go beyond that, then you ask us to sustain a judgment of the Court of Appeals on materials that were not before the Court of Appeals and non constat that they would have found for you.

Beatrice Rosenberg:

Mr. Justice, we respond — we have a right to defend on any ground —

Felix Frankfurter:

On any ground —

Beatrice Rosenberg:

— that’s available to us.

Felix Frankfurter:

On any legal ground but not a lot of facts that aren’t properly before the Court.

You can’t —

Beatrice Rosenberg:

If —

Felix Frankfurter:

— you can’t introduce a witness before this Court, and say, “We’ll prove something that wasn’t proved.”

That’s what you are doing.

Beatrice Rosenberg:

Well, I — our position is that this record, if we rely on it, and as I say in the first place is simply seeing that the Court ought to know that in the face of recent decisions which have made the single — particularly Ladner, which, of course, came down since, have made one transactions against two, much more of a factor than it’s ever been before in some of the older decisions than the face of that recent decision and the face of the fact that in attempting to stipulate the facts, the — facts turned out otherwise, so that there is now before the Court an academic issue, feel duty bound to bring it before the Court and then to present those points of view, that is I think the facts are property here.

It seems to me that if this — as I say, if this transcript, instead of being simply in the judge’s memory, had been on file, and then we simply — and we had exactly the same decision by the Court of Appeals which merely said we don’t have to go to the facts because we think you — you are wrong on the law even on the facts as you alleged them to be, we, as respondents, could have relied on the fact in the report of the result below is not the judgment.

Felix Frankfurter:

What you are saying — are you saying this, and I’m not sure you are wrong, but are you saying this, that in as much as this transcription of the testimony in the District Court, there is an official judicial document on the contents of which, and not the terms of which, on the contents of which the District Court, at least, in part went, it may be brought here as part of the whole judicial history of this case and this Court may be in a position to say that although we can sustain the Court of Appeals on the ground or we don’t have to, the general — the abstract — the wider proposition on which it went, we can sustain that judgment on what is an officially authenticated cases on which the District Court, this is a matter of speaking judicial notice.

That — that’s what you are saying.

Beatrice Rosenberg:

That’s right.

That’s my position.

Felix Frankfurter:

Well, all of this interests me very much as it may (Inaudible)

Beatrice Rosenberg:

Well, that brings me to the merit.

Felix Frankfurter:

But the reason I — the reason I indulged in this colloquy, apart from habit, is that I think the Government better — if I may suggest, I think the Government want to consider how it should handle these 2255 cases, particularly in in forma pauperis cases where there is any kind of a prospect of an appeal so that the extra money that’s involved — I know we’re going to balance the budget, but the extra money that’s involved in printing the record can’t amount to very much in the number of cases, so that we wont have this — this kind of a problem, so that the Court of Appeals has everything before it.

I just —

Beatrice Rosenberg:

Well —

Felix Frankfurter:

It may be — I — I may speak out of turn and may not be a practical suggestion, but I’m thinking of other cases and not this case.

Beatrice Rosenberg:

Well, Your Honor, as I say one of the problems, of course, is that this is new to this degree that there were — this seems to have been a quite settled subject to the District Court.

Felix Frankfurter:

Yes, well — well —

Beatrice Rosenberg:

At the time —

Felix Frankfurter:

(Voice Overlap) —

William J. Brennan, Jr.:

Well, Ms. Rosenberg, perhaps I also speak out of turn.

I’d like to get back to what I was discussing with your earlier.

I would suppose, I gather this from the number of cases in the Courts of Appeals and the District Courts that deal with the availability of 2255, there is a lot of confusion on that question, am I right in that?

Beatrice Rosenberg:

Well, Your Honor, I — I don’t have to go further than this Court’s decision in (Inaudible) to which is sort of the bible on the subject even though it (Voice Overlap) —

William J. Brennan, Jr.:

It may — it may be —

Beatrice Rosenberg:

— habeas corpus, where there was a division of opinion and where — well, there isn’t an absolutely steady line both the majority and the dissenting opinions in that Court to that.

William J. Brennan, Jr.:

Well, now, I’m wondering why — perhaps you already have the procedure.

That was the question I was going to ask — ask earlier.

Does the United States Attorney have an opportunity to contest the availability of 2255 in particular cases because he has a copy of these applications before the trial judge (Voice Overlap) —

Beatrice Rosenberg:

Oh, yes, usually, they are served.

Usually, a copy is served and the matter is often set down for hearing.

That is a — a kind of order to show cause —

William J. Brennan, Jr.:

Well —

Beatrice Rosenberg:

— in your procedure.

Occasionally and particularly with someone like this petitioner who has filed a number of them, he has some other types of things.

Occasionally one the prisoner does not serve the United States Attorney and sometimes even before the United States Attorney has had a chance to reply a judge may act, but that’s not the normal case.

The normal case is like a motion or like habeas corpus used to be, the — the petition is served on the Government and then the Government files some sort of answer deciding whether to issue it or not in theory because, as I say, if a judge reading a petition just (Inaudible) the petitioner says there wasn’t enough evidence to convict me, which is clearly not a grant between 2255, he won’t ask for a reply.

But the statute has — I don’t have it here unfortunately, specific provision for a notice, and, of course, if there is an issue of fact, then there has to be a hearing.

So that I think — I think the confusion, to some extent,has not been in that.

I think there has been a not absolutely consistent position on — to what extent in this particular field of multiple offenses.

You can go beyond the face of the indictment and that’s because of the use of Rule 35.

Beatrice Rosenberg:

Now, Rule 35 is — is recognized as being available, but that isn’t a — a remedy that strictly limits to the face of the indictment.

And I think that sometimes that’s carried out.

But the indications seems to be that if — as I say, if you can agree on the facts, then that’s a matter that’s cognizable.

Now, we’ve also, in this particular field, it also has just recently, as I have said, become of importance whether it’s one transaction or two because if you take all the decisions from the time before Bell and after Nielsen, it — in the end, wouldn’t make any difference by and large the whole trend of decisions was, that even though it was one transaction, if there were different elements, it would still be offense.

This — the Court has never found it necessary to go into the facts because in that whole group of decisions, it was just easy enough to say, “Well, let’s take these allegations as true which still are separate offenses.”

And —

William J. Brennan, Jr.:

Well, if you need to —

Beatrice Rosenberg:

Well, no, I’m just noticing that I — I’m not going to have time to get to the merits before recess.

And — so that — that becomes the problem and this matter of, generally in 2255, getting in the record — well, there are a tremendous number of these petitions that are filed and a transcript in many of them, of course, it does not seem to the United States Attorney.

William J. Brennan, Jr.:

But — but very often, isn’t it — isn’t it a fact that the — that the issue of the availability of either 2255 or Rule 35 or any of the other collateral remedies maybe raised and determined without reference to the record depending upon the basis upon which —

Beatrice Rosenberg:

Of the allegation —

William J. Brennan, Jr.:

— the petitioner seems to leave?

Beatrice Rosenberg:

— of the petitioner, that’s right.

William J. Brennan, Jr.:

Well, that’s the kind of question that doesn’t seem from — I maybe quite wrong about this, I’m asking for information.

The United States Attorneys don’t seem to raise very often.

Beatrice Rosenberg:

Well, they haven’t raised it in this field, but I think they have — I think they have raised it as to other allegations, that is, I think — for example, you get very often the allegation that evidence was obtained by an illegal search and seizure.

And I think the normal reply to that kind of an allegation is this is not necessarily cognizable under 2255.

So that — I think that it’s true that in this field of multiple offenses, it hasn’t been made very often because — well, it is a recognized ground for habeas corpus jurisdiction and therefore, in that sense, cognizable.

And the only issue that was involved in Ladner was, is it cognizable when you have a dispute as to fact, not — the Government didn’t mean to imply, and certainly — consistently throughout the years of taking opposite decisions that the mere fact of multiple sentences was an issue properly cognizable on 2255.

Earl Warren:

We’ll recess now.