Yancy v. United States – Oral Argument – December 09, 1959

Media for Yancy v. United States

Audio Transcription for Oral Argument – December 08, 1959 in Yancy v. United States

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Earl Warren:

— United States of America.

Mr. Goldman, you may continue your argument.

Seymour B. Goldman:

Mr. Chief Justice, may it please the Court.

In my argument yesterday, I started by saying that we, in our petition and in our brief had contended that the sentencing on to two consecutive sentences constituted double jeopardy and we also argued the questions of the interpretation of a statute and the application of lenity in the interpretation of the statute.

I stated at that time and I repeat today that I do not propose in my argument to stress those points, they having been very amply argued by counsel in two very recent cases and the Court having ruled upon those two arguments.

I distinguish the Yancy case from the two cases, the Gore case and the Harris case which were recently before the Court in one significant particular.

That fact is that in the Yancy case only one section of the statute was set forth in the information upon which the two counts were founded and upon which Mr. Yancy was convicted.

In support of a claim of error by the trial court, I refer first to the findings of facts and conclusions of law and the order overruling the motion to correct the sentence which is on page 16 of the transcript of the record in which the trial court held, it is further held that the Court has within it its discretion the right to impose two or more sentences on separate counts and in an indictment or information and have been run consecutively and the Court cites as its authority the Blockburger versus United States, 284 U.S. 299.

The Court of Appeals in affirming the decision of the District Court also relied upon the Blockburger case and cited the Blockburger case as its authority for having to sustain or affirm the order of the District Court.

On page 23 and 22 of the transcript of the record, Mr. Justice Stewart, in his opinion set forth in denying this branch of the motion, the District Court didn’t no more than follow a broken line of judicial authority and again commences with Blockburger versus United States.

The Blockburger case, it is our contention, did not provide a basis of authority for sustaining the decision of the District Court.

Where in the Blockburger case and the Gore case, the Harris case, and every case that I have found, that has come before this Court and its consideration more than one section of the statute has been cited as the — the basis for the information or the indictment in which ever case it was and for the consecutive sentences.

The Blockburger case itself arose from separate statutes and they were set forth in separate statutes and I feel that the pertinent language on page 304 of the Blockburger case, which sets forth its rule, is that the applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.

And I stress the language of a violation of two distinct statutory provisions which is not the fact in the instant case.

William J. Brennan, Jr.:

Now, if there had been a separate section on the sale and a separate section on the purchase, am I to infer you wouldn’t be here?

Seymour B. Goldman:

After the Gore decision and after the Harris decision, I don’t believe that I would be here renewing the same arguments which they made.

That was the conten — my original contention I frankly admit was that no matter whether they cited separate sections of the statute that this constituted double punishment or double jeopardy.

In view of the recent decisions of the Court, I cannot maintain that position.

I feel that that is — I may respectfully disagree with that position, but that is the law and it has been stated very clearly after exhaustive argument by counsel and examination by the Court that that is the law.

William J. Brennan, Jr.:

Well that — if you (Inaudible) of the issue about — about the section, is it not that our argument was on the basis upon (Inaudible) within one section.

Seymour B. Goldman:

That at the time that the statute was passed, this was considered as one crime, the various elements that were named were all parts of one crime.

They did not arise as the separate sections that the statute did from different historical precedence, tax problems, importation problems, and controls of criminal acts.

This particular section, I think it is similar to crimes of violence that we have where the man maybe charged with committing a felonious act with the use of a dangerous weapon.

Under our state laws where they list various forms of weapons that he might use in the statute yet upon conviction of making a deadly assault with a gun and a knife and poison, I think that upon the same instance whether there’s only one act, there would only be one conviction.

The prosecution might have different channels to approach that one conviction.

In this instance, it being one section of a statute subsequently separated, there are separated — subsequently separated into distinct sections to the statute that there was only one criminal act permitted although they separated into counts.

William J. Brennan, Jr.:

The statute has been broken down?

Seymour B. Goldman:

Yes, subsequent amendments have.

In the Court of Appeals, it was stated as violation of two separate sections.

They quoted the separate the — later sections of the Act 26, U.S.C.A. 4704 and 26 U.S.C.A 7237.

Felix Frankfurter:

Was that done by an amendment, a separate amendment or that part of the revision for these statements of penal code.

Seymour B. Goldman:

I don’t know Your Honor.

Felix Frankfurter:

Well, wouldn’t that make a difference?

Well, this is just a formalization, great many of those things in the — in Title 18, numerous instances where in the old ways, the golf club appeared in one paragraph and then as a matter of more fastidious form they’re broken out into A, B, C, or one, two, three.

Seymour B. Goldman:

I don’t believe in this instance that it would be a mere formalization.

I think that in this instance the — the essence of the act, of this — this particular section was confined to a sale although it — it limited — it — it enumerated other aspects that would be connected with the sale.

Felix Frankfurter:

I understand that’s your argument but I also understand you to say that if it appeared and I’m suggesting that it appeared a separate paragraph, one two three or A, B, C that would be different because that would indicate that it isn’t just one what you call act, because I think it, if I may say so, covered up a lot of implications with such one act, that’s the whole problem (Inaudible).

The fact of it that once that a (Inaudible) produce the result having means one act in the point within the law, a single — a single discharge of — of high hand may produce two very separate results legally speaking punishable by two separate results.

Seymour B. Goldman:

I am —

Felix Frankfurter:

If I — I sought the United States Marshall in New York, I made it in the Committee two legally set legally responsible and punishable consequences, namely, assault ordinary assault and interfering with the — with the business of the court.

Seymour B. Goldman:

That would have been — I — I believe that defined in two separate actions or separate sections of the statute.

Felix Frankfurter:

Well, that’s where the exchange we have with Justice Brennan, and it makes all the difference in the world, they’re not separated in a single paragraph as a matter of English by semicolons or commas but they’re separated by having A, B, C or one, two, three.

Seymour B. Goldman:

I believe that that is correct.

Felix Frankfurter:

That shouldn’t — that’s your position.

Seymour B. Goldman:

That is the — that is the position, Your Honor.

Charles E. Whittaker:

Mr. Goldman, may I ask you please?

Do you think that the Blockburger case in its usable language on page 304 of distinct statutory provisions means separate statutes?

Seymour B. Goldman:

Either separate statutes Your Honor or separate sections of the statute not a series of words being used in a continuous context.

Charles E. Whittaker:

You then think that the word “purchase” and the word “sell” goes up within the commerce view are not within the meaning of the Blockburger case distinct statutory provisions.

Seymour B. Goldman:

Yes Your Honor.

The — my reasoning for that is that in order for there to have been a sale which was the matter of proof in this instance, there would have to be some element of possession in the part of the seller whether it be by purchase or by felonious taking or in some other fashion he had to have it to sell it and that this is the context of the statute at the time that it was — this man was brought before the Court.

There were in effect at that time, by separate sections of a statute under which he could have been prosecuted providing for the same items.

Illegal importation, illegal purchases were at that time, as I recall, provided for under separate sections of the statute as well as under the one section in which the prosecution proceeded.

Charles E. Whittaker:

And I assume that you’re argument (Inaudible) takes the position though the Government need not, it voluntarily did in this information confined each count to an allegation of violation of the same statute and was thereby stuck with it, is that the idea?

Seymour B. Goldman:

Yes Your Honor.

Supposing these items had been separated, you see they’re all in the same section, what would your position had been there?

Seymour B. Goldman:

That would depend upon the history of the act.

If these all arose from one portion of a historical development at this particular section of the act say came from the development of a criminal rather than a tax aspect, it might be my — it would probably be my position that this would constitute one offense just as it did here.

I don’t think that I would be in a stronger position in my thinking if I found that each section of the statute came as a — from different sources and were for the purpose of bringing them under one head placed under one heading and each section had a different historical background then I would not have a tenable position to argue that this was a one offense although contained under one statutory heading.

Charles E. Whittaker:

Do you have (Inaudible) of whether this statute may lawfully make possession a prima facie case of sale or not?

Seymour B. Goldman:

No Your Honor.

Charles E. Whittaker:

We do not have it.

Seymour B. Goldman:

No.

I don’t — I don’t raise that question.

The — I believe that the presumption under the statute is a lawful presumption.

Charles E. Whittaker:

Would it be a sale if one has the goods in his hand?

Could it be presumed he has sold them?

Seymour B. Goldman:

As to sale, I would say no.

Charles E. Whittaker:

You do not remind on that here because there was affirmative evidence of a sale, is that it?

Seymour B. Goldman:

Yes Your Honor.

Charles E. Whittaker:

But the Government relies upon presumption or the prima facie case was made with the statute to supply the high risk in the purchase aspect, is that it?

Seymour B. Goldman:

Yes, Your Honor.

Charles E. Whittaker:

Thank you.

(Inaudible)

Seymour B. Goldman:

The —

(Inaudible)

Seymour B. Goldman:

No, Your Honor, there was no transcript, no official transcript made of the proceedings at the — in the District Court.

I did not represent the petitioner on the District Court.

I have read an unofficial transcript and it’s my recollection that the item of heroine was introduced at the trial, 775 grains.

There was a testimony made as to the sale.

William J. Brennan, Jr.:

That is as to the narcotics agents?

Seymour B. Goldman:

To the narc — special agent of the department.

William J. Brennan, Jr.:

Then what about it is (Inaudible)?

Seymour B. Goldman:

Yes Your Honor.

William J. Brennan, Jr.:

No active vendor (Inaudible)?

Seymour B. Goldman:

No.

The only other item which I wish to direct the attention of the Court which — to which I made brief reference yesterday is the fact that the man was a first defender, that he has been continuously in prison for over five years.

He has commenced his second five-year sentence at this point.

That concludes my argument, sir.

Earl Warren:

Mr. — Mr. Murphy.

John L. Murphy:

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

Before approaching the formal part of my argument perhaps it would be well for me to answer some of the questions that have been raised on the petitioner’s argument and the first one, I think was asked by Mr. Justice Brennan yesterday, as to whether a person could be convicted under this statute of four separate offenses.

I think that he could be, if there were separate evidence of each of the activities proscribed by the statute.

There seems to be no reason either in law or logic why that could not be so?

And so in this case, we contend that it was entirely proper for the petitioner to be charged and convicted and successively punished for separate and distinct violations of this particular statute, which prohibits purchase as well as sale, I might say two diametrically opposed activities.

Whatever maybe said concerning the ambiguity that might exist with respect to the other provisions of the statute dispensing and distribution and sale, there is certainly no occasion to confuse purchase with sale.

They are two distinct acts, opposite acts, each having its own participants, its own objectives.

William J. Brennan, Jr.:

You might come (Inaudible).

It’s your recollection you would have to define — said the informal transcripts of this.

John L. Murphy:

I believe it is, Mr. Justice Brennan.

Of course, this case comes up on a motion under 28 U.S.C. 2255.

It was not deemed necessary to print the record since counsel had made the conception as he does at page 7 of his brief.

That the petitioner contends that the only evidence adduced at the trial was the sale alleged in Count 4, and that his conviction on Count 3 alleging a purchase was based on the statutory presumption arising from the fact of his possession.

So there is, as we say, distinct evidence proved the purchase stemming from the presumption arising out of proof of possession.

There is —

William J. Brennan, Jr.:

(Inaudible) there might be a problem here of exhaustion of the effectiveness of the presumption since the Government approved affirmative testimony in the charge under the same section of the sale.

John L. Murphy:

We would —

William J. Brennan, Jr.:

In other words, having — having done that is the Government or not in the position where it can’t now rely on the presumption?

John L. Murphy:

I don’t think so, Your Honor.

The statute provides that possession shall be presumpt — prima facie evidence of a violation.

Whether or not that could stand for a sale violation is a question which of course, is not in this case.

My own opinion would be that it would be quite illogical to use the presumption to stand in place of proof of sale, direct proof of sale because I think that possession if it infers anything it infers that you have not sold.

Perhaps in a case where — where the sale was made without possession, it could possibly be sold, but in any event that’s not this case.

William J. Brennan, Jr.:

Well I — I’m just wondering whether — when the Government affirmatively characterizes the possession by introducing affirmative evidence that there was a sale to a narcotics agent, whether it may then turn that the presumption say or that same possession, the jury may infer proves a purchase which is to say the very opposite.

John L. Murphy:

I think as long as we don’t use the presumption more than once, and I would call Your Honor’s attention to the fact that the presumption I specify as enumerated in the statute that the presumption is prima facie evidence of a violation.

So that I would not contend that the presumption could be used successively, a single possession could not be used successively as proof of a purchase and of the sale dispensing and distribution.

William J. Brennan, Jr.:

By following you then, what that means is had there been four counts, purchase, sale, dispensing and distributing.

You could use the presumption to support anyone of the four but as to the other three, you’d have to have affirmative evidence —

John L. Murphy:

That’s correct.

William J. Brennan, Jr.:

— for the use of a purchase should have that affirmative evidence for sale, dispensing, and distribution.

John L. Murphy:

That is correct.

The presumption is exhausted once it has stood for proof of one of the elements of the event.

Does the statute prove that?

John L. Murphy:

The statute says and we have quoted it in our — in our brief.

I have — I have it before me but —

John L. Murphy:

It says prima facie proof of a violation, I think that it would be exhausted when it had been utilized to prove a violation.

At least —

Earl Warren:

And we have — and we have three sales made simultaneously and he was charged with three counts of — of sale.

Could you charge him also with three counts of purchasing?

John L. Murphy:

Well, it would depend — I think they are the —

Earl Warren:

He’s got the narcotics — he’s got the narcotics there and these three men are there, A, B, C.

He sells to A, to B, to C.

John L. Murphy:

No, I think that you can only use the possession there to prove one act of purchase because it’s all the same narcotics.

However, there are separate acts of sale and each of those would be a separate offense as Blockburger said.

Earl Warren:

But what authority would you have for making that distinction from this case?

John L. Murphy:

Well here, there was only one sale and one — one bulk narcotics.

It consisted of two ounces of heroine and they were just in a single possession and it was not split.

So factually, we don’t have the question in this case.

Earl Warren:

No, I didn’t say it was in this case.

I said if it was in this case.

John L. Murphy:

Well we, as I’ve indicated, we would take the position, I believe that the presumption would be exhausted when you had utilized it to prove a single offense and the — the presumption arises from possession of the drug.

Earl Warren:

Suppose, you had — suppose you charged him in three separate indictments and you wanted to charge him not only with sale but with the purchase.

Could you then try them on — for both sale and — sale and purchase?

John L. Murphy:

The sales again in the example you’ve given —

Earl Warren:

Yes.

John L. Murphy:

— where the sales arise out of one —

Earl Warren:

Yes.

John L. Murphy:

— bulk narcotics split into three portions and sold separately.

Earl Warren:

Yes.

John L. Murphy:

Well, I think that if the — in that event, if the petitioner, the defendant came forward with proof that the sales were each made from a single bulk of narcotics possessed by him, I think that we would have to agree that only one offense could be predicated upon his possession of that narcotics.

Charles E. Whittaker:

(Inaudible) aid by permission of this (Inaudible), do you confer that that’s the issue of (Inaudible) with congressional (Inaudible) that there’d be respectively four gallons there.

John L. Murphy:

I do — I do Your —

Charles E. Whittaker:

From the sale one through possession, one through expenses, and one through distribution.

John L. Murphy:

Not from a single act of possession.

I don’t think it’s consistent with that interpretation, but I don’t think that you can jump from that point and say that Congress intended to lump all of these activities together and intended only a single offense to be created by the language used.

Certainly, they used inept language to — to define a single offense when they said purchase, sale, dispense, and distribute.

In fact, I believe it was in the Nigro case that that contention was raised and this Court said, “It would seem to be admissible and wise in a law seeking to impose taxes for the sale of an illusive subject to require conformity to a prescribed method of sale and delivery calculated to disclose or make more difficult any escape from the tax.

If this maybe done, any departure from the steps enjoined maybe punished and added penalties maybe fixed for successive omissions.

So, I believe that the contention raised by petitioner that that these activities were all intended by Congress only to proscribe a single offense is — is disposed off in the Nigro case and also, in the Blockburger case, we had successive sales on succeeding days, very closely associated sales.

As a matter of fact, the order —

Charles E. Whittaker:

(Inaudible) offence —

John L. Murphy:

But the —

Charles E. Whittaker:

That would be subject to sale, isn’t it?

John L. Murphy:

Yes Your Honor, they were but the order for the second sale was taken at the time of the first sale.

They were that closely related.

Charles E. Whittaker:

In fact, this would (Inaudible)

John L. Murphy:

That’s correct.

Now, counsel says that each of the cases coming before this Court have involved separate and distinct statutes.

That is not so.

In both the Albrecht case which punished possession of liquor and sale of the same liquor which had been possessed, both of those offenses were laid under the National Prohibition Act.

In the case of Burton agreeing to receive compensation and receipt of compensation again involved only a single statute with separate provisions.

Now, the question has been raised as to whether the statute has been broken down since its original enactment.

This statute was originally enacted as part of the Revenue Act of 1918, it became effective in 1919.

It was an amendment to the Harrison Narcotic Act which had been enacted in 1914.

The Harrison Narcotic Act as Blockburger points out, had its separate penalty section and this was — this format was continued through the reenactment of the statute which I suggest to the Court was intended to affect — each reenactment was intended to affect no substantive change than the effect of the statute.

In Blockburger, the petitioner contended that the all inclusive penal section of that Act “any person who violates or fails to comply with any of the requirements of this Act” is to be construed as imposing a single punishment for the distinct requirements of the separate provisions of the Act.

The Court said, “The plain meaning of the provision is that each offense is subject to the penalty proscribed and if that be too harsh, the remedy must be afforded by act of Congress.”

The separate penalty provision was continued in Section 2557 of the Internal Revenue Code of 1939.

It’s now contained in an enlarged form, elaborate form, in Section 7237 under the 1954 Act, which of course, under our modern device of — of enacting legislation, of separating the substantive offenses in one section of the Act, the penalty section and in another is wholly consistent, but I do not think it can be interpreted as intending to impose only a single punishment for all violations committed.

Blockburger disposed to that contention long ago.

William J. Brennan, Jr.:

(Inaudible) is there now a separate section with sale?

John L. Murphy:

Yes, there are two —

William J. Brennan, Jr.:

(Voice Overlap)

John L. Murphy:

— there are two sections dealing with sale.

Perhaps if I get in to my formal argument, it would become clearer.

This statute, 2553 (a) of the Internal Revenue Code of 1939, provides that it shall be unlawful to purchase, sell, dispense, or distribute narcotic drugs except in or from the original stamped package.

And further that the absence of appropriate tax paid stamps from the drug shall be prima facie evidence of a violation of this subsection by the person in whose possession they are found.

Now, we have discussed at some length whether the statute proscribes several different activities and we have also seen that the statute contains this presumption based upon possession from proof of which the element, the statutory element as distinguished from the evidence to prove that element maybe inferred.

Now, the case comes up on 2255 motion and I will not belabor with the Court with the intimate history of the case.

Suffice it to say, I think, that we have here a legal question as to whether under this statute separate offenses of purchase and sale are defined by this enactment.

Now, the question of identity of offenses may arise in different circumstances.

First, there is the situation where the defendant’s conduct allegedly violates several statutes.

And an example of this is the Blockburger case where a sale was held violative of 2553 (a), the present statute and 2554 (a) which is selling without a written order form.

King against United States in 280 U.S. affirming 31 F.2d at page 17 under authority of Albrecht held that selling morphine not in or from this original stamp package and shipping the same morphine in interstate commerce were different offenses and I might note there that it was held in a case which involved successive trials.

Pinkerton against United States of course held that conspiracy and the substant — substantive offense which is the objective of the conspiracy are separate and distinct offenses.

Gavieres was a case in which the defendant was convicted of disorderly conduct and insulting a public official, both offenses arising out of the single course of conduct.

More recently, we of course have had the Gore case which I will deal with a little bit more at length, and lastly, Harris.

Earl Warren:

Mr. Murphy may I — may I ask this in connection with your discussion of Gore and Harris?

Do you believe that that in this indictment you could also charge the defendant — that the narcotics were not stamped, that they were not on a regular form, that they were also imported and a number of other things that the statute prescribes and or proscribes and add those all those altogether and give them separate sentences on each one of them in addition to the four that you have here?

In other words, if you charge a man with possession, sale, dispensing, and distribution, can you also charge him with — with illegally importing and use that presumption also unstamped — unstamped liquor or unstamped narcotics also not doing it on the usual form and then sentence him to five years on — on each one of those in addition to before you’ve got —

John L. Murphy:

Well —

Earl Warren:

— you’re based on one — one sale such as we have in this case.

John L. Murphy:

Undoubtedly under Gore, the defendant was guilty of violating Section 174 of Title 21. —

Earl Warren:

Yes.

John L. Murphy:

— the Export-Import Act.

Earl Warren:

Yes.

John L. Murphy:

Receiving and buying —

Earl Warren:

Yes.

John L. Murphy:

— selling, receiving and concealing narcotics knowing them to have been unlawfully imported.

Earl Warren:

Yes.

John L. Murphy:

He was also guilty of this statute and he was also guilty of Section 40 — what is now 4705 (a) selling narcotic drugs not in pursuance to a written order form.

So, those would be three offenses.

We would have — if — if we use the presumption on the other two offenses on 174 and 4705, I don’t think that would exhaust the presumption under 4704, because each of the statutes, well, there is no presumption under 4705, I’m sorry.

But if we — we could have use the presumption under 174 of Title 21 as we did in Harris and used it also under 4704 —

Earl Warren:

Yes.

John L. Murphy:

— to prove the purchase.

Earl Warren:

Yes.

John L. Murphy:

If we had separate and distinct evidence of sale —

Earl Warren:

No, just take this one — take this one sale —

John L. Murphy:

Well —

Earl Warren:

— and then do what it like you did in Gore and do like you did with it in — in the Harris cases, could you add those counts on to — on to this count?

John L. Murphy:

I —

Earl Warren:

This count?

John L. Murphy:

I think that would be four — there would be four counts for —

Earl Warren:

In addition to these four?

John L. Murphy:

One stemming from purchase under 174, one stemming from purchase under 4704, one stemming from sale under 4704 and second stemming from sale under 4705.

Earl Warren:

Yes.

John L. Murphy:

I’m sorry that I’m using the —

Earl Warren:

No.

John L. Murphy:

— current statutory references, I’m more familiar with them.

Earl Warren:

Yes, but how about these other — how about these other things unstamped liquor and narcotics and so forth and import it, vould you add those two to — to this indictment?

John L. Murphy:

Well, we have used them under 4704 —

Earl Warren:

Well, I know but I mean, could — could you support a conviction in this case if you had — if you had those separate counts in the indictment in addition to the four of sale, purchase, dispensing and distribution?

John L. Murphy:

Well, I wouldn’t know of that.

Earl Warren:

I beg your pardon.

John L. Murphy:

I would in no event attempt to support four charges under the present statute based upon a single sale.

I wish to make that clear.

Earl Warren:

Why?

John L. Murphy:

Because you have exhausted — you have exhausted the statute when you have proved by a single act of sale that he violated the single provision of selling, not either from the original stamp package.

Earl Warren:

Couldn’t it be both selling and dispensing?

John L. Murphy:

We concede that that those —

Earl Warren:

Suppose — suppose he is a druggist, suppose he’s a druggist and he dispenses the narcotics for consideration.

Has he both dispensed and sold?

John L. Murphy:

I don’t believe so, Your Honor.

I think the dispensing —

Earl Warren:

Which has he done?

John L. Murphy:

— dispensing probably incorporates and emerges with sale in that particular circumstance.

You either have to charge him with dispensing or with selling.

I think that they —

Earl Warren:

I don’t —

John L. Murphy:

— there is certainly, as I’ve said before, room for ambiguity as between those two offenses and I think it would have to be resolved in favor of the defendant in that particular case.

Earl Warren:

How about distribution?

John L. Murphy:

Distribution is also analogous to —

Earl Warren:

All right.

John L. Murphy:

— selling and distri — and dispensing.

Earl Warren:

Then your point is that you can only have in the — in the situation of this kind where it says the four things and you have one sale that you can only have sale and purchase nothing else.

John L. Murphy:

That’s correct.

Earl Warren:

That —

John L. Murphy:

Well —

Earl Warren:

Yes.

John L. Murphy:

— either purchase and sale or purchase and dispense —

Earl Warren:

Yes.

John L. Murphy:

— and purchase and distribution.

Earl Warren:

Yes.

Right.

John L. Murphy:

We conceded that on the argument —

Earl Warren:

Yes.

John L. Murphy:

— on the Gore case.

Earl Warren:

Yes.

Well, now then —

John L. Murphy:

But then we had —

Earl Warren:

Let me ask you, could you add these other things to it that we’ve been talking about now.

The — the failure to pay the tax, the failure to all these things.

John L. Murphy:

I think you could add a charge under the Export-Import Act of receiving —

Earl Warren:

Yes.

John L. Murphy:

— narcotic drugs knowing them to have been unlawfully imported.

Earl Warren:

Yes.

John L. Murphy:

And I think you could add the offense under the written order form provision selling without a written order form.

Earl Warren:

Yes.

Felix Frankfurter:

That’s Gore.

Earl Warren:

Any others, any others?

John L. Murphy:

No, I don’t believe so Your Honor.

We would be relying — well possibly, possibly you could do the same thing under 174.

Section 174 prohibits both buying and selling.

Now, you could duplicate under that statute what we have done here.

Utilize the presumption provision in that — in that section to prove the buying and use your direct and affirmative evidence of sale to prove the sale.

So, you might have —

Felix Frankfurter:

Yes.

John L. Murphy:

— two offenses under that statute.

Earl Warren:

Well, may I ask you this Mr. Murphy?

Do you think that when Congress reasoned the — rephrased the sentencing for — for narcotics violations and when it said five years — maximum of five years for one sale and 10 years for a second offense, that it had in — in mind that for one sale such as we have here, that a man could be sentenced to not five years but seven times five years or 35 years and that if he happen to have another conviction prior to that, that it could be not 35 but 70 years, you think that the Congress had that in mind when it passed that statute?

John L. Murphy:

Well, I think with respect to the last question that you’ve asked as to whether it could be 35 or 70, if a man has been convicted of a number of different offenses occurring at the same time, that is one conviction for the purpose or the sentencing —

Earl Warren:

No, no.

I didn’t say that.

I said that on another occasion been convicted of — of sale prior — prior to this time, do — do you think that Congress for a first offense of this kind just one simple sale had in contemplation that a man could be sentenced for 35 years and that if he had have a prior conviction that he could be sentenced for 70 years.

John L. Murphy:

Well, I don’t think that that specific fact situation came to mind among the members who — who were on the Committee.

Earl Warren:

Well, do you think that intended — the Congress intended that that should be done?

John L. Murphy:

I don’t know.

All — all I can say, Mr. Chief Justice is that Congress intended to lay it on a narcotics violator and my — my personal acquaintance with what went on during the amendment — the reenactment of the Internal Revenue Code in 1954 enables me to recall only that each of the members were — was very earnest in his desire that the minimum punishment be as heavy as possible.

They were not concerned about the maximum at all and whether they contemplated that a fact situation such as you have described was in their minds, I really can’t say.

John L. Murphy:

I don’t think that —

Earl Warren:

Of course there were some — some legislators who wanted to hang them, wanted to execute them.

Some wanted to give them life imprisonment, but do you think that if this had been discussed on — on the floor that Congress would have — have said that it thought that these should be pyramided in that amount for a first offense of this kind of simple sale to a — to a government agent, is he entitled to 35 years imprisonment and if he had another — another conviction prior in that, 70 years.

John L. Murphy:

Our candid opinion Mr. Chief Justice, shocking as it maybe is that I don’t think that Congress would have been at all shocked.

There — they had heard very lewd testimony from addicts.

Felix Frankfurter:

Isn’t it a fact that the legislative history shows not a sentiment but a severity?

John L. Murphy:

Oh definitely.

Tom C. Clark:

(Inaudible)

John L. Murphy:

Similar to this one or similar to the one which is —

Tom C. Clark:

(Inaudible)

John L. Murphy:

No.

In fact this — this case —

Earl Warren:

You had three — you had three on one sale, haven’t we which made 15 years for a first offense and it would be 30 years for a second offense.

We have that.

John L. Murphy:

Yes.

Earl Warren:

And if that is three, why — why not five or seven whichever — whichever 79 state attorneys chooses to use.

John L. Murphy:

At the present time, the maximum for first offense is 20 years, for second offense, 40 years.

Tom C. Clark:

(Inaudible)

John L. Murphy:

This — this man got five in each — at the time that this man committed his offense, the maximum was 10 years.

I’m sorry, it was five that he gave and the maximum was two to five for the first offense.

Tom C. Clark:

Another examiner for a second offense (Inaudible) 40.

John L. Murphy:

And made also for life sentence for dealing with heroine in the case of the juvenile, such things as that all combined to — to indicate that Congress intended to deal mostly severely with narcotic violators.

Felix Frankfurter:

Is there anything to prevent anything in the Constitution to prevent Congress from dealing with only one aspect in narcotics violation just as one aspect in offenses but if there are some comment in the grievance in fold of peer sentence with anything of the Constitution prevents them from doing that.

John L. Murphy:

I would not think so, Mr. Justice Frankfurter.

Felix Frankfurter:

Even to say in result by just having one — one act but saying if that act (Inaudible) the circumstances we are talking about, that shall be almost a life time (Inaudible).

Earl Warren:

But it would have to be rather clear that Congress intended to do that, isn’t it before — before the courts would support one.

John L. Murphy:

Well, I think that when they use language, I would — I would such as they have here, I — I don’t think there’s any room for ambiguity.

There’s no equivocation in the language that they use.

I would call attention to the Court of the statutes in which Congress has found no difficulty in describing a single offense stemming from various acts, the mail fraud statute for example.

Whoever having devised or intending to device any scheme or manifest to the fraud or for obtaining money or property by means of false or fraudulent pretenses, representations or promises.

John L. Murphy:

They use — they can use words very aptly to describe what they mean and they — they usually use the words by means of when they are intending to proscribe a certain form of conduct and then they enumerate the various means by which this conduct can be carried out.

In that case, I think that there’s not much doubt but the man — the defendant commits more than one act proscribed in the means provision of the statute, that he has been guilty of only one offense.

Here we have an entirely different situation.

Earl Warren:

You wouldn’t — you wouldn’t stretch the intent of Congress shows to show that — shows to permit one count for having — having falsely made the statement and the second count that was fraudulent, would you?

John L. Murphy:

No, we would not Your Honor.

Earl Warren:

Well, well —

John L. Murphy:

Because they’re enumerated in — “by means of”.

Earl Warren:

Yes.

John L. Murphy:

Mr. Murphy may I (Inaudible) as it was identified in the record where as you suggest that at the (Inaudible) a count of offence for a sale by the 174, the (Inaudible) of a sale of property might have been a conviction for the sale upon (Inaudible)

That was precisely the — the situation in Gore.

There was a single sale and Gore was successively punished for selling in violation of 174, selling in violation of 4704, and selling in violation of 4705.

Further than that in Harris–

Single sale —

John L. Murphy:

— same single sale, there were two sales out of which they made six counts in — in Gore, but the crucial contention was that for each of those single sale, there’s only one punishment could be imposed and this Court said, “No”.

Three successive punishments maybe imposed under three different statutory enactments.

Now, further than that in Harris, we had single fact of possession under 174 and this statute and two offenses were carved out of that and this Court said that that was permissible.

Tom C. Clark:

Both separate sections.

John L. Murphy:

They were separate statutes in that case, of course.

Tom C. Clark:

(Inaudible)

John L. Murphy:

Now whether the conduct of the defendant violates the single statute, we may divide this category up into classifications in which the defendant engages in a single transaction contrary to a single provision of a statute and thereby achieves several evil results and they’re familiar with the Ladner case, a single shot resulting in injury to two federal officers, Bell against United States, 349 U.S. simultaneous transportation of more than one woman across interstate lines for immoral purposes.

In each of those cases, of course, this Court applied the principle of lenity and concluded that there was only one effect.

Earl Warren:

How do you distinguish Bell where — where a panderer went out enlisted a whole carload of young women for purposes of prostitution and merely because they put him — he put him in one bus to take them across the state line, it was held that he’d only committed one offense.

How do you distinguish that from this case?

John L. Murphy:

Solely upon the basis of the statutory language.

The — the language there was subject to the interpretation that he committed only one offense.

Earl Warren:

The purpose was for him to — purpose of that act was to prohibit him from — from soliciting any young women to do that, wasn’t it?

He took the whole carload —

John L. Murphy:

Right, simultaneously.

Earl Warren:

And this Court — this Court said because it was a carload why he only committed one offense, but here the man — man makes one little sale to narcotics officer and do you say that he can — you can have seven different offenses and join them together, give them seven different sentences.

John L. Murphy:

Well this Court said with reference to this question, I believe it was in Bell where Congress has not explicitly stated what the unit of offense will be, this Court will apply the principle of lenity.

Felix Frankfurter:

But the emphasis is also was on the fact of transportation and not on the fact of prostitution.

To be sure to have transportations of prostitutes but the emphasis was on the carriage and there is only one carriage, there were X number of prostitutes but only one carriage.

Earl Warren:

The statute didn’t say — statute didn’t say that if they were in one carriage you — you could only charge him for taking one woman across the line anymore than — than it says something similar in this case.

John L. Murphy:

I think it said transporting any woman.

Earl Warren:

Yes.

John L. Murphy:

The emphasis is that (Inaudible)

Earl Warren:

There you had a whole — there you had a carload of women in that case and here we have it — there’s only one — only one act.

Here we got one little sale and we have a whole carload of counts.

John L. Murphy:

Whoever knowingly transports in interstate or foreign commerce, any woman in the world could have purchase.

Earl Warren:

Not any carload women but any — any woman.

John L. Murphy:

That was a — a I believe an example of — of the application of the principle of lenity where Congress has not explicitly and quite clearly defined what the unit of offense will be.

As the Gore case points out there is no occasion for the application of that rule in the narcotics area.

Felix Frankfurter:

Well, that might be a good reason for overruling Bell, but that doesn’t — that we go — jump to the fact when Congress defined four different offenses, not one offense, four different offenses that is only one offense.

It might overrule Bell because that seems to be too lenient of a decision.

Hugo L. Black:

Are you asking us to do that?

John L. Murphy:

Well, we don’t have the Bell situation there [Attempt to Laughter].

The defendant — the next category, I might point out, is whether defendant engaged in several successive transactions of the same kind contrary to a single statutory provision.

And an example of that is in Ebeling against Morgan, 237 U.S. cutting six mail bags in the course of a single transaction, In Re Henry 123 U.S. mailing several letters in furtherance of the scheme to defraud and of course Blockburger which involved two successive sales on different days.

Now, the next category is whether defendant engages in a single transaction and thereby violates several different provisions of a single statute and the leading case on that is Albrecht which said that possession of liquor and sale of the same liquor all in violation of the single statute for two different offenses.

Burton, I’ve already mentioned agreeing to receive compensation and receiving the same compensation.

The next category would be whether defendant engages in several different acts and thereby violates several different provisions of the same statute and I suggest to the Court that the Michener case, counterfeiting case in 331 U.S. 789, forging a plate adopted for counterfeiting to be made and in possession of that plate where separate offenses held to be so.

I believe that this case falls in this last mentioned category where the defendant has committed more than one act in violation of the single statute.

Now, we must be careful to distinguish cases in which the defendant engages in a course of conduct such as in U.S. against Universal CIT Corporation where the provisions of the Fair Labor Standards Act were interpreted as proscribing a course of conduct.

However, it should be noted that the Court was careful to find out that different kinds or classifications of conduct, for instance, under payment would be one offense, false record keeping would be another offense even under that case.

Another case, another classification which we should be careful to distinguish consists of the case in which one offense merges with another of greater culpability as in the Prince case, entering into a bank with intent to commit robbery and committing robbery therein.

And with reference to that, I — I would like to make a point that we have no occasion to consider the question of intent in — in connection with the narcotic statutes.

It’s been held by this Court in Balint against United States that these are strictly malum prohibitum offense as not involving willfulness or intent.

Now, when Blockburger came before this Court, in 1931 I believe it was, there were involved two facets of that case, two sales on successive days, and the second sale was charged under the stamp provision and under the written order form provision.

This Court held that with respect to the successive sales, they constituted separate acts, separate offenses because they stem from separate impulses.

With respect to the question of whether the same sale on the second day constituted two offenses under different statutes, this Court, of course, held that they were.

John L. Murphy:

Gore came before the Court and involved, as I’ve indicated, a single sale in violation of three separate statutory provisions.

This Court reaffirmed the principle of Blockburger, said that the legislative enactment in the narcotics field revealed a determination by Congress to turn the screw of the criminal machinery detection, prosecution, and punishment tighter and tighter.

It distinguished these other cases, Bell, on the basis that lenity was applied there and there’s no implication for its application in the narcotics field.

Universal CIT, the Court said, involve the course of conduct.

Prince dealt with a statute of limited application, a unique statute.

The Court also held that there was no double jeopardy and indicated that to accept the petitioner’s contention with respect to that principle would involve the overruling of a long line of cases involving that question Carter against McGlowry, Morgan against Divine, Albrecht, Pinkerton, American Tobacco, U.S. against Michener, and (Inaudible).

The Court finally said that the issue was one at phenology and not most tantalizing aspect of it the apportionment of proper punishment.

Court noted that this Court has no authority to provide sentences.

Harris came before this Court at the previous term and involved the single transaction violative — violative of two separate statutory provisions, Section 174 Title 21 and the present statute.

The charges were a purchase from an — unstamped package and receiving and concealed unlawfully imported narcotics.

The petitioner’s contention there was identical with the contention in this one in this case that the same evidence rule of the Blockburger case required that the Court interpret defendant’s conduct as constituting only a single offense.

Court said that the violations as distinguished from the direct evidence offered to prove them was distinctly different under each statute and the Court emphasized that it is the element of the statutory offenses that defines the crime and determines whether what act will constitute more than one offense.

Here of course, I don’t think that there’s any room for doubt that purchase and sale constitute separate elements.

As I’ve indicated before, the offenses here involved diametrically opposed acts, each requiring its own separate impulse, enterprise and participants.

It’s been noted that we have separate proof of the sale, so that we did not rely on the same evidence if that’s the — the interpretation of the Blockburger rule.

We certainly have different elements, and if that is the interpretation and — and I may say that — that Blockburger has been bended about quite a bit.

The rule of Blockburger has been, I think, stated only partially time and time again.

The usual quote is as follows.

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not.

Eliminated from that quote, is the sentence which precedes it, and I will quote, “Each of the offenses created requires proof of a different element”.

So, it is even under Blockburger, it is the element of the offense rather than the primary evidence necessary to prove those elements that’s important.

Hugo L. Black:

What different proof was required here?

John L. Murphy:

Proof of possession, standing in lieu of purchase, proof of sale which was proved by direct affirmative evidence.

This case as a matter of fact, is much stronger legally than Harris.

Harris we relied solely upon a single act of possession.

Here we have separate evidence of sale.

Charles E. Whittaker:

(Inaudible)

John L. Murphy:

Certainly, in that distinction Your Honor, I don’t think it’s compelling because Congress can certainly define separate offenses in a single statute as well as in separate statutes and it has done so in — in many different fields.

Felix Frankfurter:

I think it’s fair to say that in all the earlier and by earlier I mean until very relatively recently, Congress use to just put in one paragraph a number of offenses.

I’m not talking about narcotics.

Felix Frankfurter:

You go to their volume and find big chunks of paragraphs and great of fastidiousness in ordering or inform is a relatively recent case.

John L. Murphy:

The tendency to break it down into separate subsections, a typical example is the Internal Revenue Act of 1954 where each section has been broken down into subsections and all for the purpose of — of logic I suppose so that you can identify the conduct proscribed readily without having two rules, a long and difficult provision of the statute.

Felix Frankfurter:

Well, it’s more artistic, I think from its logic — it’s more artistic and easier for the — for the lawyers who (Inaudible).

William J. Brennan, Jr.:

Mr. Murphy, am I correct that the court held that (Inaudible) on the statute adopted a different time?

John L. Murphy:

That is correct.

The —

William J. Brennan, Jr.:

Did — did the Court find the significance on the fact that they’re adopted 15 times has bearing on the congressional desires or severity in dealing with these terms.

John L. Murphy:

Well it certainly did that —

William J. Brennan, Jr.:

Did the Court find that?

John L. Murphy:

The Court referred to the fact that the statutes were enacted at different times and defined a various means by which the tax could be protected and also the —

William J. Brennan, Jr.:

Oh, I know but the (Voice Overlap) —

John L. Murphy:

— traffic in narcotics could be suppressed.

William J. Brennan, Jr.:

(Inaudible) were there heavy reliance upon that fact bearing on the result.

I — I would suppose if that — if that so, that argument is not available in (Inaudible)

John L. Murphy:

No.

That argument is certainly not available.

However, the — the argument is available that — that Congress in separately enacting this statute and proscribing various activities which had felt should be outlawed and —

William J. Brennan, Jr.:

Well, you have to rely on something else though (Inaudible) the reliance had in Gore, Harris defined here or reasonable, I think there should be more than one offense — prosecution of more than one offense under the same thing.

John L. Murphy:

Of course, I agree, Mr. Justice Brennan that there’s little to be gained from examining the legislative history in connection with the question now before the case —

William J. Brennan, Jr.:

(Inaudible)

John L. Murphy:

— before the Court.

Yes.

William J. Brennan, Jr.:

When, when was —

John L. Murphy:

It was enacted, there is the one paragraph reference in the report on the Revenue Act of 1918 which refers to this case and simply says that the statute is being enacted to correct a loophole created by the (Inaudible) and that’s all there is.

Felix Frankfurter:

When was this broken up into subsection or whatever you call it?

Was it the 1940 or —

John L. Murphy:

I think it was the 1939 Act.

Felix Frankfurter:

The 1939 Act.

That is when they — when there was a formal merely allegedly formal revision —

John L. Murphy:

That’s correct.

Felix Frankfurter:

— of the Penal Code, the old Penal Code of 1911 and that after 1911 there were accretion and then in 1939 they just made a —

John L. Murphy:

Well, this was the Revenue Act.

This was not part of the Penal Code.

Felix Frankfurter:

Well, I — I understand.

I beg your pardon.

William J. Brennan, Jr.:

That was Murphy and this section has been broken up.

I know your adversary (Inaudible) —

John L. Murphy:

No.

William J. Brennan, Jr.:

— but I have 4704 before —

John L. Murphy:

Right.

William J. Brennan, Jr.:

— and that should be identical with the statute that we’re dealing with that has a change.

John L. Murphy:

That’s correct.

William J. Brennan, Jr.:

So has there been a breakup of this —

John L. Murphy:

No.

The — the breakup, I think, that was referred to, was that the penal —

William J. Brennan, Jr.:

In subsequent —

John L. Murphy:

— section is different — in a different place in the code now than it was originally.

That should make no difference —

William J. Brennan, Jr.:

That’s identical with the one that we were dealing with.

John L. Murphy:

That’s correct.

Finally, I should mention that the petitioner cites the case of Ballerini against Aderholt in his brief.

That case was specifically disapproved in the Blockburger case.

The other case cited by petitioner, Donaldson, involved the question of venue and I believe it’s completely inapplicable to the question at issue here.

I thank the Court.

Earl Warren:

Is the question of venue before us?

John L. Murphy:

No, Your Honor, it is not.

Earl Warren:

And — and why, because it wasn’t raised below?

Is that — is that the reason?

John L. Murphy:

You mean the question of — of whether the presumption extends to venue?

Earl Warren:

No.

Earl Warren:

No the question as to — as to whether they must either know there is a presumption that it was purchased that they must establish that it was within the district where he was being tried.

John L. Murphy:

No, no.

It was not raised below.

Earl Warren:

That’s the reason — that’s the reason it’s not before us, (Inaudible).

John L. Murphy:

That’s —

Earl Warren:

Yes.

John L. Murphy:

— correct.

If it had been raised, of course, the Casey case in 276 U.S., I believe completely disposes that argument.

Earl Warren:

Mr. Goldberg.

Seymour B. Goldman:

Mr. Chief Justice, may it please the Court.

In attempting to determine a statutory test, a careful examination of a language of the — of Section 2553 (a) shows that with the exception of the word “purchase”, the other words all fall within one context, sell, dispense, or distribute narcotics.

I think it is only fair in interpreting this particular section to take all of its language as one, since other sections of the Act made provision for other violations.

So, that to separate the word, “purchase” and treat it as differently from the words sell, dispense, or distribute narcotic drugs is in an improper interpretation of what the legislature intended by this one single enactment.

Now, I have reread the language in the Albrecht case and I agree that if Congress and I made this in my argument that if Congress had broken down each of these activities into separate offenses and had prescribed separate punishments that there would be nothing in the Constitution as currently stated from punishing separately each step leading to the consummation of a transaction.

I believe that’s what the Albrecht case stands for.

In this instance, however, the prosecution proceeded only under one section, one subsection of the Act and that is the final — the position upon which we rely that there was no in this particular case they did not choose different avenues of punishment but chose only one or a prosecution but chose only one.

They can stand holding upon one offense under one avenue.