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Warren E. Burger: We will hear arguments next in McElroy against the United States. Mr. White, I think you may proceed whenever you are ready.
Thomas S. White: Chief Justice Burger, may it please the Court, this case involves the question of statutory construction of the third paragraph of Section 2314. That statute provides in its pertinent part "Whoever with unlawful or fraudulent intent transports in interstate or foreign commerce any falsely made, forged, altered, or counterfeited securities, knowing the same to have been falsely made, forged, altered, or counterfeited, shall be fined not more than $10,000 or imprisoned not more than ten years or both. " It is the petitioner's position here that in order for the United States to sustain a valid conviction under this section of the statute, and under this particular paragraph, it is necessary that they prove beyond a reasonable doubt that the check or checks that were here involved in this case be in a forged or altered condition prior to their interstate transportation. If I may briefly state the facts, the petitioner here was indicted on a three-count indict, one count charging him with violation of the Dyer Act, the other two counts charging him with violation of this subsection of 2314. The facts as developed at the trial were as follows. Early in 1977, a robbery occurred at the union office in Youngstown, Ohio. Some blank checks were taken. The union notified the bank on which the checks were drawn, and the account was closed. Approximately 17 months later, the petitioner visited an automobile agency in Pittsburgh, Don Allen's Chevrolet, and negotiated the price of a used Corvette. After arriving at the price, he told the man, the salesman that he would be back the next day, that he lived in Ohio, that he had to get a check from his credit union. He also told him that he worked in the Pittsburgh area for a railroad. The next day he appeared with one of the checks that had been stolen at the union office in Youngstown, and it was... when he presented it, it was altered and forged. The dealership took possession of the check, and he took possession of the car. The car was never found again.
Speaker: You say, when he presented it, it was altered and forged. Do you mean by that that the forgery and alteration had taken place prior to the presentation?
Thomas S. White: Yes, Your Honor. That occurred, of course, in Pittsburgh. The second--
Speaker: But I gather the alteration or forgery occurred in the state of Pennsylvania, did it?
Thomas S. White: --Well, that is the question, Your Honor. We believe that there is a presumption that works here, that when a check is presented that is a forgery, that there is a presumption that it was forged where it first appeared.
Speaker: Where do you get that from?
Thomas S. White: Your Honor, that is a presumption that goes back to 1822, Justice Storey, and it has been utilized by the lower federal courts. One of the courts that utilized it was one of the courts of which... which would cause the split here among the circuits, Owens versus the United States. The Fifth Circuit relied on that.
Speaker: Was Justice Storey talking about the criminal law area?
Thomas S. White: Yes, Your Honor, he was, and it was used in that case to establish venue. The second incident occurred at Rini Boat Sales in Beaver Falls, Pennsylvania. Again the petitioner appeared, negotiated the price of a boat with a trailer to haul it away, and after having agreed on the price, he told them that he lived in Ohio, and that he had to get a check from his credit union. About a week later he telephoned them, told them that he had the funds, and that he would be there some time during that day, but he had to work overtime. About a few hours later he called and told them he was on the Ohio Turnpike, at a rest stop, and he would be there shortly. Approximately 20 minutes later, an employee of Rini Boat Sales was standing in front of the agency, when he saw the petitioner pull out of a dead end street in a pickup truck. What followed then was just what happened at the Chevrolet agency. The dealer took possession of a check that was in a forged and altered condition. It was one of the checks that had been stolen at the union office in Youngstown 17 months previously. And thereafter, the boat and the trailer were taken by the petitioner. The boat was found about a year later in Pennsylvania. At the conclusion of the evidence, the defendant moved for a judgment of acquittal on the grounds that there was no evidence to support the Dyer Act count because there was no evidence to show that the Corvette had been taken from Pennsylvania to Ohio, and on the check charges, there was insufficient evidence because the government had failed to prove as required by this paragraph of the statute that the checks were in a forged or altered condition prior to their interstate transportation. The judge denied both the motions, and charged the jury in accordance with the points for charge presented by the government that it was not necessary that the checks be in a forged or altered condition so long as they could show or the jury found that the checks were moving in interstate commerce in a forged or altered condition solely in the destination state. Now, the defendant petitioner here was convicted. He received a five-year sentence on the Dyer Act count and seven-year sentences on the check counts, all the sentences to run concurrently. On appeal to the Third Circuit, they said that there was insufficient evidence to convict on the Dyer Act count, because the indictment charged him with taking the automobile from Ohio... sorry, from Pennsylvania into Ohio, and there was no evidence that the automobile ever went into Ohio. But on the check charges, they said that the judge's charge was correct, and they held chat it was not necessary under this statute for the government to prove that the checks were in a forged or altered condition prior to their interstate transportation and prior to crossing state lines. When they so held that, they held directly in conflict with the Tenth, Eight, and Fifth Circuit Courts of Appeals, which have held with regard to this paragraph of 2314 that it is clear and obvious from a reading of this statute, because of the tenses used and so forth, that this statute means that the--
Speaker: It is not the whole statute, it is just two words they rely on, right? "Have been"?
Thomas S. White: --No, Your Honor, I think it is... I don't want to say what they had in their mind. They just said a reading is obvious, but I will attempt to--
Speaker: Well, what other words can you get your argument out of?
Thomas S. White: --"Forged", Your Honor. Past tense. The forged checks prior to the interstate transportation. It is the way the statute--
Speaker: There is nothing that says the check has to be forged before it is transferred.
Thomas S. White: --No, it doesn't, Your Honor, but the way the tenses are set up in the structure of the section; we believe that it is clear that Congress intended that, and I will demonstrate that, Your Honor, by the Congressional history.
Speaker: Well, if the language of the statute is clear, do we need to go to the legislative history?
Thomas S. White: Your Honor, if it is clear, you do not, and our first submission here is that it is not ambiguous, it is clear on its face that what it means is that the checks must be in a forged condition before they enter interstate commerce, but our fallback position, Your Honor, and our second position is, if this wording is ambiguous, then this court should utilize the rule of Lenity.
Speaker: Do you have some cases that say, apply the rule of Lenity in the face of what might be clear legislative history, even though the words are ambiguous?
Thomas S. White: Your honor, you are right. Of course, you would not thwart the will of Congress if you could show clearly by the legislative history what Congress meant.
Speaker: Even though the words themselves might be ambiguous?
Thomas S. White: Even though the words might be ambiguous.
Speaker: But your position is that there is no evidence like that in this case?
Thomas S. White: As a matter of fact, there is contrary evidence to sustain our position, Your Honor.
Speaker: Do you take the position that if you forge a check or a security, and you get across a state line, you are free?
Thomas S. White: No. If you forge a check and cross a state line, you are guilty. If you take a blank check and cross a state line, and then forge it--
Speaker: Then you are free.
Thomas S. White: --you have not violated this section.
Speaker: And you can cross eight other state lines?
Thomas S. White: No, Your Honor. Yes, I think I would say that, if it is a continuous movement.
Speaker: And then you realize that it doesn't make sense, don't you?
Thomas S. White: Yes, it does, Your Honor.
Speaker: Congress was against transporting forged securities.
Thomas S. White: You are right, Your Honor, and they took care of that provision.
Speaker: Well, this was a forged security, wasn't it?
Thomas S. White: Yes, Your Honor.
Speaker: When it was presented, it was forged, wasn't it?
Thomas S. White: That's right, Your Honor.
Speaker: And it had crossed the state line, right?
Thomas S. White: No, not under this section.
Speaker: It had crossed... the check had crossed the state line.
Thomas S. White: A blank check.
Speaker: A check had crossed a state line.
Thomas S. White: I agree with you.
Speaker: And when it was presented, it was forged.
Thomas S. White: That's right, Your Honor.
Speaker: And that, in any reading of the statute, violates the statute.
Thomas S. White: No, Your Honor. May I suggest--
Speaker: Well, what else is there in the statute that you have to show?
Thomas S. White: --Okay. Your Honor, may I suggest that Congress when they passed this Act, the National Stolen Properties Act, took care of the situation that the defendant was here charged with. They took care of it in Section 4, which now became Section 2315, which provides with regard to the same activity, "Whoever receives, conceals, stores, barters, sells, or disposes of any falsely made, forged, altered, or counterfeited securities moving as or which are a part of or which constitute interstate or foreign commerce. " We submit, Your Honor, that the whole problem in this case is strictly this, that the government failed to indict him under the right section. Had they charged him under 2315, it would have fit the facts. Having charged him under 2314, they then tried to pull themselves up, and act like Procrusteas, and try to stretch the language of 2314 to make it fit a situation which was governed by 2315.
Speaker: You would say, I take it, or would you, if there was a question, would you say that the proof would have been satisfied in this kind of a case if the statute, after the word "transports in interstate or foreign commerce. " any "stolen", insert the word "stolen", comma, "falsely made", comma, "forged", comma, "altered"?
Thomas S. White: It would have taken care of it, and they did in the first paragraph, Your Honor. You see, in the first paragraph of the statute, it provides against the interstate transportation of stolen merchandise, but Congress has a $5,000 limit. Now, I don't want to concede that he could have been convicted under that statute, but both of these checks were over $5,000. I simply find in this case that the government charged him under the wrong statute. The legislative history--
Speaker: Let me ask you, is the section you are relying on the section at the bottom of Page 13 of your brief, the section... that is the one you are talking about, 2314?
Thomas S. White: --Yes, Your Honor.
Speaker: That doesn't refer to forged securities, though, does it?
Thomas S. White: Yes, Your Honor. In the paragraph, second paragraph of 2315, Your Honor, the reading is almost exactly the same. "Whoever receives, conceals, stores, barters-- "
Speaker: Where are you reading? That is what I want to know. What is it you are quoting from?
Thomas S. White: --I am quoting from--
Speaker: I mean, it is not in the brief. Is that right?
Thomas S. White: --No, Your Honor.
Speaker: Oh, I am sorry.
Thomas S. White: We don't have that whole statute set out, Your Honor, but it is in the second paragraph of 2315.
Speaker: I see. Is it possible to violate two Acts?
Thomas S. White: Yes, Your Honor, you could do that.
Speaker: I am just wondering.
Thomas S. White: Yes, Your Honor, but they didn't charge him with 2315. That has been the whole point. And as the dissenter pointed out in the court of appeals in the en banc decision, they could have also probably convicted this man under section... under the last paragraph of 2314.
Speaker: I'll bet there are a lot of other things he could be convicted of, too.
Thomas S. White: That's right, many others.
Speaker: Oh, you agree?
Thomas S. White: Yes, Your Honor. But there is no question under this particular section of the statute that he was not validly convicted. When Congress passed the National Stolen Properties Act, they did not rely on the words "interstate commerce" as defined by this Court. The government attempts to show that by going back to the Dyer Act, and it says they can't find anything that would indicate the will of Congress with regard to the National Stolen Properties Act. Your Honor, when the National Stolen Property Act was passed, Congress put their own definition of interstate commerce into the statute, and they didn't give anybody any leeway to interpret it.
Speaker: Mr. White, certainly in the Tobin case and in the Barfield case, the parallel language in the adjacent two statutes has been interpreted exactly as the government is asking that it be interpreted here.
Thomas S. White: Your Honor, I think--
Speaker: How do you distinguish that?
Thomas S. White: --Because of the "moving as" language, Your Honor. It is clear that "moving as, constituting a part of interstate commerce. " is different than having an act that is committed prior to the transportation in interstate commerce. That is what I think the whole Act was... these two sections were designed to do, and remember, 2314 and 2315 were one section in the National Stolen Properties Act. But this definition that Congress put in provided as follows. "The term interstate or foreign commerce shall mean transportation from one state, territory, or the District of Columbia to another state. " et cetera. Now, reading the statute as with that language in it, it would read, "Whoever with unlawful or fraudulent intent transports from one state to another a falsely made, forged, altered, or counterfeited security. " which clearly sets up our position in this case.
Speaker: But that is quite a narrower reading than the actual language of the statute itself.
Thomas S. White: Your Honor, yes, but if we are looking to divine the will of Congress at the time the Act was passed, I think you have to look at the definition that they used.
Speaker: Well, why don't we first look to the statute? The language of 2314 itself? Which says, "Whoever with unlawful or fraudulent intent transports in interstate commerce any forged security. " I don't think it is unreasonable to say that when they talk about transporting in interstate commerce, they referred to the entire journey, and if the forgery takes place at any time during that journey, the violation is complete.
Thomas S. White: Your Honor, if that were the case, then that would swallow up 2315. You would never need 2315. There would be no reason to have 2315. And that is our point. When you read it with "from state to state" it means that the document has to be in a forged condition prior to its transportation. Now, I will admit that the definition that I told you that Congress had implanted into the Act was taken out by the general code revisions in 1949, and was replaced by Section 10, but the drafters of those sections, and when they revised 2314 and 2315, noted that there was no change in substance, there was merely changes in minor phraseology, and therefore that leaves us with the same intent and the same expression of Congress's will. Furthermore, the Act has been amended several times to provide for the same prohibitions with tax stamps and forged countersignatures on traveler's checks, and in several other ways. Nobody has ever bothered to change the definition or make it clearer or anything, and furthermore, when they put in... when Congress wants to show in 2314 what it is that they want to cover, in the third paragraph it reads... I am sorry, in the second paragraph, "Whoever having devised or intended to devise any scheme or artifice to defraud or the obtaining money or property by means of false or fraudulent pretenses. " They can speak in language of intent now and intent later, not in the third paragraph of this statute. It is to my mind clear and unambiguous, and three circuits have so found, and that basically is our position. We would cite the Court, of course, to your case of United States versus Barrett, where Justice Blackmun said that where Congress has utilized verb tenses and subrogated them throughout the entire Act, and seemed to know what they were doing when they did it, then we will give full weight and be influenced by that to a great degree, and in this case I think that is exactly what we have. If there is an ambiguity, then that should be resolved in favor of the petitioner, because Congress's will has certainly not been unerringly clear in this situation. Otherwise, we wouldn't have these three circuits' courts of appeals, and one was an en banc decision reading this statute so clearly.
Speaker: Would you say that he knew that that check had been stolen when he--
Thomas S. White: Your Honor, there is no evidence that the petitioner--
Speaker: --There isn't?
Thomas S. White: --engaging in the theft.
Speaker: Well, what about the old inference that can be drawn from possession of recently stolen property?
Thomas S. White: Yes, Your Honor, he could do that, but remember, he is not charged with the theft. What we are dealing with here is--
Speaker: No, I am just reading the statute. Whoever transports in interstate commerce, and so forth, any securities, and so forth, knowing the same to have been stolen, converted, or taken by fraud.
Thomas S. White: --You are talking about the first paragraph, Your Honor?
Speaker: Of 2314.
Thomas S. White: Yes, the first paragraph. That has the $5,000 limit. He couldn't have been charged... he wasn't charged with that. You see, the government was very specific in this case. At the trial, the government attorney announced to the court clearly what we have here and what I am charging this man with is a violation of the third paragraph of 2314. There was never any question that he was not being charged with anything else... or that he was being charged with anything else other than that one paragraph.
Speaker: Well, your brief... I am reading from Page 3, going over to 4, recites that he was charged of doing this in violation of 2314.
Thomas S. White: It is a shorthand way of saying it, Your Honor, the paragraph that is involved, because we clearly pointed out the paragraph, Your Honor, and the whole record is replete with the fact that the judge and the U. S. Attorney and the attorney and the defendant all realized exactly what he was being charged with, and that is what went on in the court of appeals also. There is no question about the specificity of the charges in this case.
Speaker: Very well. Mr. Phillips?
Carter G. Phillips: Thank you, Mr. Chief Justice, and may it please the Court, this case is here on a writ of certiorari limited to the issue of the proper scope of the interstate commerce requirement in Section 2314 of Title XVIII of the United States Code. Specifically, the issue is whether in a prosecution for transporting a forged security in interstate commerce, the government must prove that the security in question was forged prior to the time the security reached its destination state or whether instead the government need only prove that a security was transported between one or more... between two or more states, and that prior to the time it reached its ultimate destination, that security was in a forged condition. Petitioner has adequately stated the facts, and I think it is abundantly clear from those facts that what is at issue here is the transportation of a security from Ohio to Pennsylvania, and the only question that is open is when was the forgery, and there is essentially no evidence in the record as to when the actual signature was placed on the specific security. The district court instructed the jury that if you believe that the government has shown that the defendant transported the checks while they were in a forged condition within the state of Pennsylvania, the requirements of the law are satisfied if that transportation was part of interstate commerce. That was the instruction offered by the government, and it was over the objection of the petitioner. The jury convicted on that instruction, and so there is no dispute that what we are talking about here is a conviction on the basis of the third paragraph of Section 2314. The Third Circuit affirmed the conviction on Section 2314, and it did so en banc. Nine of the ten judges on the Third Circuit adopted the theory of the government in this case. The concurring opinion by Judge Adams... or, excuse me, the dissenting and concurring opinion by Judge Adams dissented solely from the reversal of the conviction on the Dyer Act count. Judge Garth in his dissenting opinion agreed with the theory of the government's case but disagreed with the proof showing that the security in question had been transported from Ohio to Pennsylvania. And finally, only Judge Higginbotham dissented basically relying on the decisions of the three other courts of appeals that have held similar to the way that petitioner argues in this case. Frankly, from the government's perspective it is fairly unusual for three courts of appeals to interpret the same provision in a way that we believe is so fundamentally wrong, and so it seems appropriate to begin our analysis by attempting to explain how three courts of appeals have gone off on that ground. Petitioner in his submission has relied heavily on the presence of those decisions. The source of the law in this area begins in 1961 in United States versus Castle, a case in which the fortuity of events, which was primarily a confession on the part of a defendant that he had forged documents in Maryland and then transported those securities into Texas, was relied upon by the court quite properly as stating each of the elements of a conviction under Paragraph 3 of Section 2314. That factual oddity was suddenly transformed into an element of the defense indicta, frankly, by the same court of appeals, the Fifth Circuit, in United States versus Owens. In Owens, the evidence simply proved that the defendant had attempted to cash securities that could be linked back eventually to New Jersey, the securities having been cashed in Louisiana. Unfortunately for the government, there was no proof really as to how the securities had reached Louisiana, nor even how the defendant in that case had come by... had obtained those securities, and therefore there was no real proof of transportation. The court threw out the conviction on the basis that there was inadequate evidence. Unfortunately indeed for the government, in doing so, the court also said that the important element that was missing was the failure to prove the fraud at the time of the interstate passage, moving away from the interstate commerce language, which is the linchpin of the government's position in this case. That language in the opinion of the Fifth Circuit was used by the Eighth Circuit in a subsequent decision involving a Section 2255 review of a guilty plea under Section 2314 where the defendant in that case had plead to having transported securities from one state to another. The court found that there had been no proof that those checks had been forged in the state of origin and then transported, thereby truly effectuating the final development of the rule that petitioner seeks to have adopted by this court. That decision then was followed in turn by the Tenth Circuit en banc. The decision in Sparrow, I submit, reflects nothing more than the desire of the Tenth Circuit to avoid a conflict among the circuits. It essentially recites the prior decisions in this area and does little more than cite the rule of Lenity as a basis for its ultimate decision.
Speaker: Mr. Phillips, suppose a check is stolen in Pittsburgh and the check stays in Pennsylvania all the time but it is stolen by somebody from Cleveland, and he leaves the check in Pennsylvania with his colleagues and goes back to Cleveland, and then he goes to... makes a trip to Pittsburgh, picks up the check, and goes to Philadelphia, forges it in Philadelphia, and does whatever he did with it here.
Carter G. Phillips: Well, it is difficult to know exactly, because the key to this is going to be whether or not--
Speaker: Well, I would think if you mean literally what your submission is, that there is an interstate movement from Cleveland to Philadelphia. It doesn't make any difference whether the check itself crosses a state line or not.
Carter G. Phillips: --Well, no, the check itself has to cross the state line as--
Speaker: Why?
Carter G. Phillips: --Well, at some point, it would be difficult--
Speaker: There is interstate commerce. There is movement in interstate commerce.
Carter G. Phillips: --Of the defendant. We are not submitting that there doesn't have to be some movement of the forged security.
Speaker: Well, I know, but the check is being transported in interstate commerce.
Carter G. Phillips: Well, it may be that it is in interstate commerce. The question... there would be essentially a question for the jury to decide whether or not it ever became in interstate commerce, and it may well be on the facts--
Speaker: Well, there is no doubt about it, the fellow drives from Cleveland to Pittsburgh, picks up the check, and goes on to Philadelphia, one movement. The check is moving in interstate commerce, just as surely as if the check was moved from Cleveland to Pittsburgh.
Carter G. Phillips: --It may be true, and I am not... if a jury were to convict on that theory, we would be here defending that conviction.
Speaker: The jury... if the court instructed that you may find that the statute is satisfied if the check Just moves from Pittsburgh to Philadelphia, would you object to that or not?
Carter G. Phillips: Well, I can imagine that there... it would generally not be the case that that would ever have become in interstate commerce, because the check has never begun to move in interstate commerce. The only person who has moved--
Speaker: Well, they begin moving in interstate commerce as soon as they picked it up. It became part of an interstate trip.
Carter G. Phillips: --Well, I suppose that you might say that the defendant's movement from Cleveland to Pittsburgh was sufficient to create a movement in interstate commerce.
Speaker: I am sure you would. If that was part of his plan.
Carter G. Phillips: If that was part of his plan. But we would have to demonstrate that that is all a continuous movement, and certainly if that kind of movement, relying on an individual from Cleveland to take up the check and move it along, is designed in some way along... to avoid detection, then it even falls clearly within the intendment of what Congress wanted under Section 2314.
Speaker: Is there or is there not a requirement in the statute that the check ever cross a state line?
Carter G. Phillips: Well, certainly we need go no further than that in this case, obviously, because the check did go across the state line. I would think it would be generally difficult to make out a case when the check doesn't move across state lines.
Speaker: Why would there be any difference? Suppose you have the same facts you have here, except as Justice White suggests, the theft was from Pittsburgh, but yet he lived in Ohio, and he called up from the Ohio Turnpike to Beaver Falls and said, I am on my way in, I am going to pick up the check in Pittsburgh and deliver it to you. He did exactly that, but it was a forged check. Wasn't that exactly like this case? Sure.
Carter G. Phillips: Well, and that was the basis, I suppose, for Judge Garth's concurring and dissenting opinion saying the evidence was insufficient because we couldn't prove that he hadn't just picked up the checks from--
Speaker: So under your theory it would be all right. There is just as much basis for requiring the check to cross the line in a forged condition as there is to have the check cross the line at all.
Carter G. Phillips: --No, I don't believe that that is so, Your Honor. It seems to me that all the statute says is that you must transport in interstate commerce. It is the check that must be in interstate commerce, not the defendant.
Speaker: Well, the check is, on your theory. You say there is a whole movement.
Carter G. Phillips: Yes, that's right, Your Honor.
Speaker: A whole movement, and if the check is part of it at all, it is moved in interstate commerce. It doesn't have to cross the line.
Carter G. Phillips: It is transported in interstate commerce. But we are not saying, moving as in interstate commerce. We are simply saying transported in interstate commerce.
Speaker: Mr. Phillips.
Carter G. Phillips: Yes, Your Honor.
Speaker: Take two cases. One, that this Court says that you have to forge the check before you cross the state line, and you try a man, and he says, I forged it after I crossed the state line. Secondly, this Court says, you only can be guilty if you forge it after you cross the state line, and the man is brought in, and he says, I forged it before I crossed the state line. Wouldn't both of them go free?
Carter G. Phillips: If the rule is as you state it--
Speaker: If the rule is that way.
Carter G. Phillips: --Yes, sir. We would have some difficulty. And I suppose that is why we take the position we do here, which is that we simply cannot prove when the defendant forges the check. There are few events that are more a secret than the timing of a forgery, and that is why we think that in this situation we have proved out all that is required under the statute. As I suggest, it seems to me that the Fifth, Eighth, and Tenth Circuits, although they have in fact reached results contrary to the ones we assert in this case, supply petitioner with very little assistance in this case, because those decisions are not based on the sort of building blocks of statutory interpretation one would expect to be used, that is, the specific language used in the statute, the legislative history behind the statute, and the relationship of this provision to other comparable provisions in the code. We reject, I think quite easily, the argument of petitioner that there is a clear meaning to this statute that precludes this prosecution. Petitioner's clear meaning from the statute is derived solely from the notion that would only make sense in the context of this statute precluded the transportation across a state line of a security, but that is not what this statute requires. Instead, it forbids transportation in interstate commerce, and the only way to know what transportation in interstate commerce violates the statute can be decided by reference to the legislative intent. We suggest that the statute is at least ambiguous enough to require us to look to what Congress intended. By doing that, it seems to us very clear that the interstate commerce requirement in the statute is designed to be a much broader concept than the idea of crossing a state line. Congress knew in 1919, it knew in 1934, and it knew in 1939 how the phrase "interstate commerce" had been interpreted by this Court, and it relied on that broad concept that movement in interstate commerce as a basis and with the desire to stop that kind of movement in interstate commerce. So that the semantic argument, it seems to us, if anything, is quite clear in our favor. Moreover, our semantic argument is buttressed significantly by the policy of this Act, which is to crush frauds committed on interstate commerce by use of the forged securities, and that policy is fully implemented in a case like this where the petitioner has shown himself capable of running back and forth between the states of Ohio and Pennsylvania, making detection of his crime difficult, and making the... and if there were not a provision like this, making prosecution for his crime quite difficult. It seems to me that the--
Speaker: Mr. Phillips, what do you say about his argument that you just used the wrong statutory provision, that you should have indicted under 2315?
Carter G. Phillips: --Well, it may well be that petitioner has violated several statutes, but one that he clearly violated was Section 2314. I don't see any necessary problem. The point is, he carried this security across state lines and held it for a while and used it for various purposes. I have no doubt that we could have prosecuted--
Speaker: But we have just agreed he doesn't really have to carry it across state lines, I thought, in order to come within the statute--
Carter G. Phillips: --Well, he doesn't have to, but--
Speaker: --whereas... and that is even clearer... pardon me?
Carter G. Phillips: --I am sorry. I didn't mean to interrupt you.
Speaker: Well, I guess we agreed on that. That your position does not require that the security ever cross state lines, it merely requires that it be transported during a part of an interstate journey.
Carter G. Phillips: In part of a... yes, sir, That's correct.
Speaker: So that you get a commuter, if he picks up the forgery check after he crosses the state line.
Carter G. Phillips: That's correct, as long as it is all part of a single transportation in interstate commerce.
Speaker: But I am just wondering if there is much of a federal interest at stake here if there is another statutory provision that covers this precise--
Carter G. Phillips: Well, I don't think that there is another provision that covers this precise--
Speaker: --Situation?
Carter G. Phillips: --situation. I mean, it seems to me that 2315, which is more concerned with receipt of these kinds of securities, covers a different activity.
Speaker: Well, it is receives, conceals, stores, barters, sells, or disposes of. There is clearly--
Carter G. Phillips: Sure, but those all involve additional activities that are regarded as inimical by Congress, so that it would seem to me the fact that he has done more than one thing certainly is no basis for denying the government the right to prosecute him on this basis. It seems to me ultimately that the only basis that... the only argument petitioner really has in this case is the rule of Lenity, and as I think is fairly clear, the rule of Lenity is only a matter of statutory construction. It is really a rule in many ways designed simply for separation of powers... interests. That is that we want to make sure that Congress declares what crimes exist and how they ought to be punished, and as I hope I have suggested already, Congress has spoken very broadly in this statute, and clearly to include this conduct as within the prohibition of the statute. If there are no further questions, Your Honors, I would ask you to affirm the judgment of the Third Circuit in this case.
Warren E. Burger: Mr. White, do you have anything further?
Thomas S. White: Yes, Your Honor. Again, the government has not paid any attention to the fact that when this Act was passed, Congress put a definition into it, and did not rely on the broad interpretation of interstate commerce that he would suggest upon which they relied. Furthermore, it isn't just the rule of Lenity that is involved, but a public policy that Justice Marshal spoke of in United States versus Bass. It is so that this Court and any court can know exactly what it is that the man is being tried on, and that people know what they are being tried on. When this statute says, and uses the language here, "whoever transports a forged document in interstate commerce. " and then Congress defines the words "interstate commerce" as meaning from state to state, it is clear what he looks at. The difference--
Speaker: Well, as has been suggested by some questions, must you show crossing a state line in interstate commerce?
Thomas S. White: --Yes, Your Honor, for this. You do, because, Your Honor, you see, in 2315 Congress met that eventuality. The situation posed by Justice White is clearly covered by 2315. Again, I say that all the government failed to do in this case is charge under the right statute and the right section.
Speaker: Well, but that argument... but 2314 and 2315 aren't mutually exclusive in their coverage, and there really is no reason to think that every statute Congress passes is mutually exclusive from another one.
Thomas S. White: But it is in the same statute, Justice.
Speaker: Well, but conceivably they could have been aiming at two slightly different things but there would have been some overlap.
Thomas S. White: But when they want to do that, Your Honor, I would suggest that they know how to do it. They did it in the second paragraph of 2314. "Whoever devises or plans to devise a scheme. " and so forth. And they have never amended that, and three circuits have read it that it is plain and clear that what it means is that under this particular paragraph, not even the whole section, just this same paragraph, it means what it says. The check has to be forged before its interstate transportation. If the government wants to charge somebody under both sections, there is no prohibition against that. They could have charged him with four or five sections, and perhaps sustained a valid conviction. They didn't do it in this case, and now the man stands convicted of the third paragraph of 2314, and what the government is attempting to do, as I say, is stretch that language all out of proportion to what it was intended to cover because Congress already covered that in the Section 2315--
Speaker: Mr. White?
Thomas S. White: --and that is why the courts draw that distinction.
Speaker: Now, in Section 2312, which I tried to ask you about before, which deals with transporting in interstate commerce a motor vehicle or aircraft knowing it to have been stolen, in the Barfield case, the court placed the exact interpretation on that language which is parallel to that that we have here.
Thomas S. White: Yes. You will notice that the Barfield case was decided by the Fifth Circuit Court of Appeals, the same court that decided Owens under 2314. The reason is that it was easily sustainable in Barfield as a continuation because the man was riding in the car, he was clearly chargeable under Section 2 as a principal, a fact that you don't have in this case. They didn't need any broad interpretation of 2312, because you have Section 2. If I drive a car halfway across the state, and you and I are planning to drive a stolen car from Pittsburgh to Cleveland, and I do part of the driving and you do part of the driving to move it along, there is no question I am an aider and a better and a principal under Section 2. That clearly distinguishes Barfield from the case that we have here, and explains why the Fifth Circuit is the same court that drew this distinction. They would have held, under 2314, that it is necessary that it be a stolen... a stolen car, which it was in Barfield, that crossed the state line. Here, the question is, was it just a check or was it a forged check that crossed the state line, and that is the distinguishing factor in that case.
Warren E. Burger: Thank you, gentlemen. The case is submitted. | 0 |
Warren E. Burger: We’ll hear arguments next in 143, Palmer against the City of Euclid. Mr. Schwartz you may proceed whenever you’re ready.
Niki Z. Schwartz: Mr. Chief Justice and may it please the Court. The issue in this case is the constitutionality of Section 583.01 (e) of the ordinances of the City of Euclid, Ohio which makes it unlawful for any suspicious person to be within the municipality and Part (e) defining suspicious person as any person who wanders about the streets or other public ways or who is found abroad at later unusual hours in the night without any visible or lawful business and who does not give satisfactory accounting himself. Now, this question arises on the following facts. On April 19, 1967, an off duty Euclid policeman who was on his part time job as a patrolman or watchman at a very large apartment complex in the City of Euclid had his concern alerted by noticing a car driving slowly in the parking lot of the apartment complex. At a speed, he estimated as three to five miles an hour with the lights off. Secondly, he testified that his suspicion was aroused by the fact that the car stopped and discharged a “colored female” and he knew that no colored female lived in that apartment complex and this aroused his suspicion. The third thing, he testified that aroused the suspicion was that after discharging the female, the car, which was ultimately determined to be driven by the appellant or defendant here, James Palmer, turned on its lights, pulled down to the street and parked. Upon approaching the car, the officer testified that he noticed the appellant speaking over a citizen’s band or two-way radio. As a result of these three things, he asked Palmer to get out of the car, put him up against the car, demanded his license, his driver’s license which was furnished and asked him to explain what he was doing there. He explained that he had left, discharged the friend, further inquiry about the identity and purpose of the friend resulted in no response.
Byron R. White: Does the record show what happened to the girl?
Niki Z. Schwartz: The record shows that following the unsatisfactory response as far as the officer was concerned, he marched the defendant into the building at gun point called for assistance from the Police Department and a search was conducted of the entire premises and the girl was not found. Subsequently, the defendant finally agreed to state where he thought that the girl had gone to specific apartment number. They went up to that apartment, by this time it was 2:30 or 2:45 to 3:00 in the morning and knocked on the door at that apartment, the police officer. And a male answered the door and was asked, “Is there a colored female in the premises?” And upon being informed that the answer was no that officers left continuing to search on the premises for the girl.
Potter Stewart: Does the record show whether there have been any burglary incidents in the area in the immediate past.
Niki Z. Schwartz: The record shows that there were no reports of any incident of any kind that there was -- not ever any report of any crime having been committed that night. Now, after Palmer was stopped, frisked, detained, arrested, searched, taken to the police station, interrogated, stolen car sheet checked, it was determined that absolutely no substantive offense had ever occurred and that there was not a (Inaudible) of evidence of any having ever occurred. And subsequently, Palmer was charged with being a suspicious person in violation of this section. Now at first blush perhaps, this case seems to be another in the line of cases, testing police investigatory power versus individual liberty, many of which incredibly arise out of the Cleveland area, Mapp versus Ohio, Beck versus Ohio, and Terry versus Ohio. But there’s one crucial difference in this case. In those cases, the issue was shall a concededly guilty man go for woman, go free in order to serve some interest of constitutional liberty. Here, the issue is shall an innocent man be convicted and incarcerated in order to serve some putative interest in law enforcement or maintenance of order. And I’m prepared to demonstrate that this ordinance on its face and as applied does great violence to hover constitutional rights and with no justification in necessity of law enforcement for maintenance of order.
Speaker: What sentence did this man get?
Niki Z. Schwartz: The man was sentenced to pay $50.00 fine in cost and to serve 30 days in the Cuyahoga County Jail.
Warren E. Burger: Has he served this?
Niki Z. Schwartz: No by order of --
Warren E. Burger: Have been stayed.
Niki Z. Schwartz: By order of Mr. Justice Stewart, the service is sentenced has been stayed and originally pending the filing of the jurisdictional statement and now appending the outcome of the case. There are three fundamental attacks on this ordinance, on its face and as applied and time perhaps will not permit me to deal with all of them as fully as I might wish. The first is vagueness. The rule of void for vagueness serves three primary interests, that a furnishing notice to those who wished to confirm their behavior to law so they might know what they may do and what they may not. Limit the second purpose is limiting the discretion of law enforcement officers of Courts and juries within some described standards in order to prevent arbitrary and discriminatory enforcement and the third is to prevent the ordinance from being construed too broadly to encompass or trench upon constitutional protected conduct.
Speaker: (Inaudibe)
Niki Z. Schwartz: Like what in this particular instance? Frequently, the document presents a self most often in terms of First Amendment activity. In this particular instance, the constitutionally protected conduct involved is the right to liberty without -- except upon articulable suspicion or articulable facts that the constitute in effect reasonable suspicion under Terry to justify a stop and frisk, probable cause to believe that a crime has been or is being committed in order to justify an arrest and proof beyond the reasonable doubt that a crime has been committed in order to justify a conviction and incarceration pursuant to that conviction. And so there’s liberty of movement here or the freedom of movement which is one of the -- of the constitutionally protected interest involve. They’re constitutionally protect interest of the right to be free of discriminatory enforcement and these interests are served. These purposes are served by the vagueness doctrine. Now usually when a case comes here on the issue of vagueness, the whole case turns on -- meaning the single word or phrase as we just saw in the last case, the real questions, what is annoying me and is that sufficiently precise. Here, we’d got four or five phrases which individually each is vague together, they’re impossible. Wanders, what is wanders? What does that mean? We see in judicial opinions, there are at least three competing interpretations of wander. In the Ohio Supreme Court decision of Columbus versus DeLong, you have the majority striking down the statute on the ground that wander, by virtue of being defined as aimless motion without any purpose cannot include a criminal purpose, therefore it’s limited to innocent conduct and therefore the ordinance was held unconstitutional. On the other hand, the dissent says that within the context that wander must necessarily mean or be limited to a criminal purpose wandering for a criminal cases or a wrongful purpose and therefore the ordinance should be upheld. In Seattle versus Drew the Court struck down a similar ordinance because they said wander can mean either innocent or culpable conduct and in that sense, in being too vague is too broad as well. A broad at later unusual hours in the night with that visible or lawful business is as simply seems to me a night time version of wandering and without visible or lawful business begs the question as to what it is that’s prohibited and what it is that’s protected. Is Professional Ricks walking the streets at midnight, visible or lawful business? When he has no defined purpose, were not answered. Then of course we come to the most incredibly vague of all phrases and the one that renders the ordinance most effective in my opinion, does not give a satisfactory accounting himself. Satisfactory account to whom, whom may demand it. Who must be satisfied? Over what period of time must they be satisfied? It’s a credible, but untrue account satisfactory. Is it true but incredible account satisfactory? It’s purely subjective and purely just throws open the door to the police officer in the first instance. The judge and/or jury in the second instance to decide whether it’s satisfactory and even to decide who must be satisfied, is the issue at trial, whether the officer was satisfied or is the issue whether judge and jury are satisfied? Now, the same principles, the same defects in here in discussing this in terms of its propensity for arbitrary and discriminatory enforcement, ordinarily a statute which is inordinately vague simply by virtue of its vagueness facilitates arbitrary or discriminatory enforcement. But here, explicitly it authorizes arbitrary or subjective enforcement. What the Court has previously described in other cases as Government by moment to moment opinion of the police officer on the beat. The law as its drafted on its face can’t possibly be indiscriminately enforced across the board. It’s inconceivable that that could be done. The law review literature is replete with discriminatory enforcement of these kinds of ordinances against Hippies, Yippies beatniks, bums, people of unconventional dress, behavior, length of hair and so on and against black --
Warren E. Burger: Would you say counsel about an ordinance as they have increasingly in place of fixed speed limits, reasonable speed under the circumstances, is that not subject to discriminatory enforcement against certain categories of people, basis of race or national origin or what not?
Niki Z. Schwartz: Well, Ohio has exactly such speed laws and of course any law could be subjected to discriminatory enforcement in the sense of arresting and prosecution and so on. On the other hand, dealing with the question of was the speed reasonable under the circumstances. There are objective indicia that one can look at to determine reasonableness. For example, how many cars were on the highway? What were the weather conditions? What was the width to the highway? How much access was there on the side, the traffic lights? So and all of these things are objective indicia that one can look at to determine reasonableness.
Warren E. Burger: When you come down to disposition of those cases, is it not true as a practical matter that invariably or almost invariably, the evidence consists of the evidence of the arresting officer and the accused person?
Niki Z. Schwartz: More often than not that is the case.
Warren E. Burger: Much as you have in this type of situation.
Niki Z. Schwartz: That’s right.
Warren E. Burger: Each of them is susceptible of abuse.
Niki Z. Schwartz: I can see, any lose susceptible for abuse. The question is --
Warren E. Burger: These two are in a very parallel way, aren’t they?
Niki Z. Schwartz: Well, it’s enormously different in degree if not in kind Your Honor in terms of the propensity of the language to facilitate this kind of thing. We don’t have to speculate on the capacity for arbitrary enforcement here by, reading by the terms of the other cases or large articles. We have right in this very case, an example of race being used as a factor. In fact, I would argue that race is really almost an element of the offense here because this is one of the key factors and why the officer testified that his suspicion was aroused. In other words, this is a Black person in a White neighborhood at night and he shouldn’t be there. He’s automatically suspicious by reason of being there.
Potter Stewart: Your client represented himself --
Niki Z. Schwartz: Yes, he did. He tried the case himself and he handled the appeals the way through the Ohio Supreme Court.
Potter Stewart: Is he a lawyer?
Niki Z. Schwartz: No he’s not. All right, I confess this from reading the record, it’s a fair question whether or not he is.
Potter Stewart: The defendant.
Niki Z. Schwartz: The remarkable judge for a laymen. This is the first thing that struck me upon reading the record when he came to me. But to talk about vagueness --
Potter Stewart: But the companion female, companion ever found or identified?
Niki Z. Schwartz: No.
Potter Stewart: Just they asked those two bachelors whether she was there and he said no is that it.
Niki Z. Schwartz: That’s exactly.
Potter Stewart: Are you satisfied with the answer, what if they say they went away?
Niki Z. Schwartz: They took their word for it.
Warren E. Burger: They have no search warrants of course.
Niki Z. Schwartz: No they didn’t, although they could conceivably have stationed one officer at the door and sent the other out for search warrant. But the talk about vagueness here, while the vagueness evils are egregious, it’s the least of the evils because vagueness is subject to, it’s suggested drafting problem. Subject to being cured by greater precision in drafting, but assume that you could get over all the vagueness hurdles by converting this into more precise language, you still have an ordinance which fundamental purpose is right, because it punishes the arousing of suspicion and the failure or refusal to dispel that suspicion. And that flies in the face number of important constitutional principles. As I mentioned earlier, it permits various levels of deprivation of liberty -- permits the ultimate deprivation of liberty, conviction and imprisonment on facts that may not even be sufficient to justify a stop and frisk under Terry. We don’t have to decide whether it was sufficient to justify a stop and frisk under Terry. We don’t have to decide whether it was sufficient to justify an arrest under Beck. What we have to decide is, was there proof beyond a reasonable doubt of criminal activity that justifies the conviction. And in addition to subverting these standards constitutional derived standards of proof for stop and frisk, arrest and conviction, the burden of proof by reason of the satisfactory account clause is thrust on the defendant. He’s got to be able to explain away all of the ambiguities or suspicions of his behavior. As far as the satisfactory account clause, it also has the defect of compelling a violation of the privilege against self-incrimination. I would rely primarily on the brief on that point. I will like to deal with the citation of the appellee to the Miranda case here. This is not a Miranda case. The issue here is not whether or not statements given by the defendant were sufficient advice and sufficient knowledge of its rights to be able to be introduced into evidence. The issue rather is whether or not the City of Euclid, multitude and as other city similarly situated, can compel by threat of 60 days imprisonment which is the statutory maximum, although the defendant here was only sentenced to 30 days can compel him to face the choice of either going to jail as a suspicious person for failing to give a satisfactory accounting himself or conversely giving up his privilege against self-incrimination and incriminating himself.
Byron R. White: Could I ask you whether, under this ordinance if someone is found on the streets late at night 2:33 o’clock in the morning and the officer asked him what he’s doing and he’s says none of your business and just remains quite. Does all the state need to do to prove its case under this ordinance is to show those facts who was found late at night on the streets and he remained immune. Is that advice some of the states would?
Niki Z. Schwartz: That’s a good question which I have an impossible time answering because the thing is so vague. I assumed that in the Euclid Municipal Court one can get a conviction of those facts.
Potter Stewart: But the ordinance says they can’t found on the street without --
Niki Z. Schwartz: Visible or lawful business.
Potter Stewart: Or lawful business, how does the state satisfy its burden of showing somebody’s on the street without lawful business?
Niki Z. Schwartz: Without visible or lawful business.
Potter Stewart: Well I know, but that just means lawful business.
Niki Z. Schwartz: I don’t know how we can just read visible out of it.
Potter Stewart: I mean it doesn’t mean visible and lawful, it says visible or --
Niki Z. Schwartz: Or lawful.
Potter Stewart: Well the state can certainly say there wasn’t any thing visible about -- he had no business that was visible any.
Niki Z. Schwartz: That’s right.
Potter Stewart: How about lawful. How about lawful?
Niki Z. Schwartz: Well, you see if the visible weren’t in there and the state had the burden of showing that he was engaging an unlawful conduct, it would be a vastly different ordinance --
Potter Stewart: Well I know that--
Niki Z. Schwartz: But they take the visible are lawful to mean that it’s the burden is on the defendant.
Potter Stewart: Well --
Niki Z. Schwartz: To demonstrate, -- to manifest his purpose on the street.
Speaker: Well it doesn’t if the state got some burden to show that he was on the street without lawful business? Does it have the burden or not that seems like the -- that’s part of the illegality as being on the street without lawful business?
Niki Z. Schwartz: Well, I read the states case here as consisting of the fact that -- well the officer testified -- the officer testified that no law that he knows off was broken including the minuet parking, driving, traffic and so. There’s no law to his knowledge broken. Now, where is the unlawful activity?
Speaker: Well, he was driving without lights isn’t it?
Niki Z. Schwartz: In the parking lot, he turned on his lights before he pulled on the street and then on the private parking lot, it was not an offense to drive without light. The officer testified it’s in the record.
Speaker: That he was not trespassing either?
Niki Z. Schwartz: That he was not trespassing either?
Speaker: Why wasn’t he trespassing that it was a private parking lot?
Niki Z. Schwartz: He was bringing -- he was bringing a person to the apartment. Now, we don’t know for what purpose he brought that person to the apartment.
Warren E. Burger: Did he give that explanation or is that yours?
Niki Z. Schwartz: No, no. He gave the explanation.
Warren E. Burger: In those terms.
Niki Z. Schwartz: That he had come -- that he had brought the friend to the apartment. Now, what he did not explain was who the friend was and what the friend’s purpose was.
Warren E. Burger: So in that posture, the officer could disbelieve him if he wanted and as could the triar of facts, could he not?
Niki Z. Schwartz: Could disbelieve him on bringing -- the fact that he was bringing the girl.
Warren E. Burger: When he didn’t identify --
Niki Z. Schwartz: Certainly, certainly they disbelieved him. He didn’t testify as a matter of fact that at the trial -- when I relate what he said, I’m talking about the officer’s testimony as to what he is alleged to have said on the premises at the time that the violation occurred. Now, as to trespass, I don’t know any facts that would render this a trespass in a sense that this is an enormous apartment complex in which kind of quasi-public, private parking lot. When I say private, I mean it’s not a dedicated thoroughfare such that the traffic laws requiring lights at night are applicable. It’s quasi-public in the sense that it’s an enormous parking lot for the use of residents and visitors as well.
Byron R. White: Can’t you say that it would be all right to drive around without the lights on in that parking lot?
Niki Z. Schwartz: As far as the law is requiring one to have lights on his car at night is concerned, yes. That’s the officer’s testimony in the record. It’s not my interpretation. Now, having briefly demonstrated, the constitutional defects with this ordinance, both on its face and as applied here, question arises, is there any necessity in the demands or needs of order of law enforcement to justify these infringements. If there ever was a need for this kind of a law, it’s been dissipated. The argument for this kind of a law historically has been -- Fourth Amendment concepts of probable cause have been inadequate to allow the police to engage in pre-probable investigation and inquiry. This Court I think by its decision in the Terry case has taken the question of police right to inquire and to investigate prior to probable cause on a plain in which penalized by itself. It doesn’t have to be attached to subsequent charge of a substantive offense and there are a host of -- lot of questions unresolved by Terry which don’t have to be resolved here, but without passing on the constitutionality, many of these alternatives such alternatives as the American Law Institutes Model Code of prearraignment procedure, the Uniform Arrest Act, the New York Stop and Frisk Law, the common law authority recognizing Terry versus Ohio in the state version of the case all of these alternatives are available to the City of Euclid, to the state of Ohio, to Law Enforcement Officers are possibly available to them. Obviating the necessity for making a substantive offense out of what is merely cause to investigate.
Potter Stewart: If you think a state -- our city could have a -- could a city have an ordinance establishing a curfew saying no one should be on the streets after 2 AM, except who were going to or from employment or going to or from a doctor hospital.
Niki Z. Schwartz: No, I don’t think so. I think that’s too large in infringement on freedom of movement without some particularized compelling necessity in the circumstances.
Potter Stewart: What if your answer were to the contrary that the city could have that? Do you think that has any bearing on your case?
Niki Z. Schwartz: Well, if my answer were that the city could have that, then certain portions of my argument about the defects of this ordinance would be eliminated. Those that would not would be the complaints about vagueness and the complaints about compelling violation of privilege against self-incrimination.
Thurgood Marshall: Well on your last one. Assuming we had a statute like that the district and a man would ride the overhaul and walk in front of the maidflower with the woman's sable 2610, do you think the policeman could ask in begging your pardon sir, what you do with that?
Niki Z. Schwartz: With the woman’s what?
Thurgood Marshall: Sable.
Niki Z. Schwartz: Oh certainly could ask him. No question about it.
Thurgood Marshall: That’s the point. I want to get in this. Are you objecting to the question the officer asked, are you really objecting to the fact that he was punished?
Niki Z. Schwartz: I’m not objecting to the officer asking questions. I’m objecting to the fact that after all the questions are asked and all the searches and frisks and interrogations are conducted, there’s no evidence of a crime having been committed and the man is supposed to go jail for 30 days. The key point, whole theme of this case is that we’re not talking about the scope of police investigatory power. That should be dealt with directly by this Court on its own merits and it should not be necessary to have subterfuge substantive offenses in order to deal with the question of what’s the appropriate scope, the least investigated power. I would like reserve rest of time for rebuttal if I may.
Warren E. Burger: Very well. Mr. Lombardo.
David J. Lombardo: Mr. Chief Justice please and may it please the Court. The saying that bad facts make bad law would not apply in this case and I think we would both agree and my adversary and myself that whatever the outcome of this hearing that the fact issue, the fact situation in this case is the classic case of suspicious person arrest.
Potter Stewart: Of what?
David J. Lombardo: Arrest under this ordinance. I think this is the type of activity that was intended by the legislation to be prohibited. So we can't argue that facts are bad. Again, we’ve got to take in to consideration what the facts are, the time or the morning, 2:30 in the morning. You have a large apartment complex where the police officer did testify there had been burglaries, larcenies and break-ins, numerous. We’ve got an automobile without lights moving very slowly. You have an automobile discharging a woman that the policeman knows not to be a tenant there. The fact she was colored as used only for identification, I’ll talk more about that later.
Thurgood Marshall: How do you know that she wasn’t a visitor there?
David J. Lombardo: She could have been because she wasn’t a resident there.
Potter Stewart: Well, if in fact that she was apparent.
David J. Lombardo: She was a visitor.
Potter Stewart: And whether on a legal or illegal business, she did go into the apartment.
David J. Lombardo: She was a visitor. I don’t argue that. But we knew she wasn’t a resident.
Thurgood Marshall: Why?
David J. Lombardo: Because there were no colored residents in that apartment at that time.
Thurgood Marshall: And the policeman knows that?
David J. Lombardo: Yes sir, that’s what he so testified too.
Thurgood Marshall: How many residents were there?
David J. Lombardo: I think there’s approximately 1500.
Thurgood Marshall: I’m just wondering, did they have blood test and all of this.
David J. Lombardo: No way. Now, since you raised that point, we’ll skip through it now. Yeah, we have an argument in the appellant’s brief that this is a racial type thing that it was brought up in his argument. I think it would be further from the truth. The only mention of race in this entire trial or this entire proceeding from a lower court to here was when the police officer said--
Thurgood Marshall: (Inaudible)
David J. Lombardo: That’s right. This is one of the things he saw. Now, suppose I had said, or the policeman had testified that a one arm woman got out of the car and there were one arm woman in the apartment, would then be discriminated against one arm women. Of course not, we can’t -- you know being Black is a fact and a being yellow is a fact that being Italian was a fact.
Thurgood Marshall: (Inaudible)
David J. Lombardo: No, all I’m saying is that when a police man sees someone at night, when anyone does for a short period of time, race is sometime no matter what the race, the most obvious thing about the person. It’s similar to say, I saw a colored man or I saw a Chinese man or I saw Indian, it doesn’t mean there’s discrimination. Not only that, but we’ve got to look the entire proceedings. Now, my as my adversary said the appellant is not an attorney. He represented himself. They did a marvelous job in the trial and I think it’s obvious from the record of the trial that he was given much more latitude in the trial than any attorney would have been. I think he was treated fairly and justly and properly all the way through this thing. All I’m saying that in this case, race is a valid thing to bring up only as to identification of the person. That’s all. All right, further getting back to the original of the fact situation. The driver then stopped his car and after he pulled out to the parking lot, put his license and communicated on a two-way radio which the policeman testified the modern day criminal is using more and more in this criminal activities. Now at this point, the police officer would have been nothing short of remise had he not proceeded further to interrogate the appellant. There’s no question that he was proper in going forward as to ascertain just what he was doing there. The appellant then refused to give an explanation of what he was doing there. Now, we hear arguments that we cannot leave the determination of what is reasonable and proper to the police officer. We must leave it to the police officer. Uniform patrol man is our first line of defense. If he cannot be trusted to make a judgment on the street then why they are having policeman.
Byron R. White: Was this man a uniform patrol man at this time?
David J. Lombardo: Yes, he was in uniform Your Honor. Yes, sir.
Byron R. White: I thought he was on private duty?
David J. Lombardo: He was on private duty, but he was in uniform.
Byron R. White: He is not clothed with municipal authority at the time.
David J. Lombardo: No, but I believe that the police officer is a police officer 24 hours a day as to those crimes involved in the breech of the peace.
Warren E. Burger: Is that true -- are you suggesting that is a proposition of law under the Ohio Statutes.
David J. Lombardo: Yes Your Honor.
Thurgood Marshall: Is he on private duty for that apartment house?
David J. Lombardo: Yes, sir.
Thurgood Marshall: (Inaudible).
David J. Lombardo: At that time it was. All right, now the argument that we’re asking you to extend Terry in the same fact situation from the right to fact down to making arrest, I can’t argue with because that’s exactly what we’re asking you to do. Because in the Terry case, the fact situation would have been the same, officer McFaden in that case approached Terry and Terry had not been able to give an explanation of what he was doing there. Then under this ordinance, he could have arrested him. I’m not going to stand here and tell you that there is difference because there isn’t. We’re asking you to extend Terry very simply. Now, this Court has often said that it’s not so much the wording of an ordinance was determined whether or not its constitutional, but the action that it allows. The conduct that authorizes. Again, let’s go back to this fact situation. You got a policeman who observed some activity that might make him believe that criminal activity was a foot. He had the right to further investigation. To uphold the constitutionality, this ordinance would not be an open door to police abuse. I still think that any --before any conviction could stand under this ordinance, the standard set out in Terry would have to be applied to them. In other words, you cannot just see a man walking down the street and immediately say what are you doing here and you expect an explanation. This isn’t it. The policeman inquired as he did in this case would have to point to you specific articulable facts. And say, I saw this, this, and this. Therefore, my suspicions were aroused, I proceeded further.
Thurgood Marshall: Yeah, but in Terry they found a gun in his pocket and they prosecuted it not under that ordinance.
David J. Lombardo: No, I understand that.
Thurgood Marshall: But the possession of the gun.
David J. Lombardo: Yes Your Honor.
Thurgood Marshall: It's little different here.
David J. Lombardo: Oh I agree with you.
Thurgood Marshall: Thank you.
David J. Lombardo: So, he then goes forward and asks the suspect, “What are you going here?” If the man refuses or is unable to give a satisfactory account of himself to the policeman and is against the policeman’s judgment at this time as I think it must be. Then he’s subject to arrest. It’s necessary that there’ll be a combination of both and both are going to be absolutely necessary for conviction. First, you’ve got have the ascertainable facts that the policeman observed why did he approach in the first place and then the refusal or inability of the suspect. Now, if the policeman -- well, strike that. We do not feel that this is open to discriminatory enforcement. As was brought up earlier in the case prior to this, if the policeman is going to discriminate, he’s going to discriminate no matter what the law is. If you mention traffic, of course in any traffic cases, it’s the policeman’s word against the individual’s word and the judge will almost always believe the policeman. We have Courts and we have juries and this is what this is for, that’s why they are for. I’m going to be very brief because I think the issue is clear. You get down again to the old argument, the individual’s rights against society’s rights. You’ve only got to look at the crime rate on the streets. I am not trying to but it’s true. You can’t walk down the street in this town or most other big cities. We’ve got to give the policeman under beat. That’s your first and sometime your line is defense. You’ve got to give him the power to combat back this. Merely patting someone down as like in the Terry case I believe it was. They said, “Well, if he doesn’t find anything after path, then maybe he should watch him a little bit longer.” That’s not the answer. A pack down alone is not going to be enough. I think in arrest for a misdemeanor is necessary.
Warren E. Burger: Since you indicated that you’re going to brief, I can tell you now, but if you can finish by three minutes to three, we’ll finish the case tonight, otherwise we’ll go over.
David J. Lombardo: 30 seconds.
Warren E. Burger: Your friend has three minutes left.
David J. Lombardo: Let me just say this, in Terry and sibr you started -- this Court started to give the streets back to the people. I would ask you in this case to take the next step and give them back. Thank you.
Warren E. Burger: Mr. Schwartz, you have three minutes left.
Niki Z. Schwartz: There’s also a lot of argument, debate took place before Terry about whether or not the limited intrusion of a stop and a frisk could be justified on less than probable cause. Now, you’re asked to extend Terry. You’re asked to extend Terry to permit convictions on facts that it would most under Terry justifies stop and frisk. They want to extend the Terry to cover Katz. Katz was the third of the three persons frisked by McFaden in the Terry case. Cops didn’t have a gun, the other two did. He wants to convict Katz too. Now, my position boils down to this. No question about that there’s to crime problem and there’s an interest in reducing it. But that this ordinance is not necessary to reduce it because of other available means. You see, while the American Law Institute debates whether or not 20 minutes is a fair time to allow police investigation. While the uniform arrests that, that allows two hours and he was only three or four states have adapted it in 30 years because of concerned about its unconstitutionality. The City of Euclid once allowed to detain him overnight convict him and send to jail for 30 days. While the nation debates preventive detention, the City of Euclid want to prevent its conviction. That seems to me that the prices to be paid for what the City of Euclid has asked is too great and then it’s not necessary for law enforcement given the fact that there are other alternative means of dealing with regulating and permitting police investigatory power.
Hugo L. Black: Does the record show where Mr. Palmer lived?
Niki Z. Schwartz: The record I believe, the affidavit shows his address on Clayton Road, Cleveland Ohio.
Hugo L. Black: Does the record show what his occupation was?
Niki Z. Schwartz: I don’t believe it does.
Warren E. Burger: He gave the police the office three different addresses, did he not?
Niki Z. Schwartz: Yes, he gave the officer three -- well the police officer testified that he gave him three different addresses when he was being interrogated at the police station which of course was after the arrest had taken place. The third address, the officer testified was turned out to be a correct address. There’s no evidence as to whether or not addresses one and two were correct in the sense of being alternative residences or places of business.
Hugo L. Black: Did he ever state who owned the car?
Niki Z. Schwartz: No, he did not state who owned the car. The police officer testified that their check of the stolen car sheet revealed that this was not a stolen car or had not been reported as such.
Hugo L. Black: Was it -- did he have a license on it.
Niki Z. Schwartz: Yes.
Hugo L. Black: And so whose license it was?
Niki Z. Schwartz: That’s not in the record. Only the fact that it was not stolen.
Hugo L. Black: That is not what?
Niki Z. Schwartz: That it was not stolen car is the only fact in the record. There’s no evidence in the record as to whose car in fact it was.
Warren E. Burger: Was there any evidence in the record linking this car, radio, telephone up with any legitimate business enterprise?
Niki Z. Schwartz: No there was not which bring us to -- seems to me the question asked by Mr. Justice White earlier as to whether or not visible or lawful goes together. In other words, where is the burden lie here? Who has the responsibility of showing that his use of the citizen's band radio was linked up to unlawful enterprise or does he have the burden of proving that it was not linked to unlawful enterprise and that’s one of the defects in the statute.
Hugo L. Black: Does the record show whether he was white appellant?
Niki Z. Schwartz: Mr. Palmer? Yes, the record does show and that’s an interesting fact because unfortunately in the printed appendix, it’s hard to tell what is printed and what is form on the affidavit and what is written. And if you want to confirm this, you can look at the original record. But under the -- on page three of the appendix, under the affidavit, it calls for information of form, it's his birth date and then the officer fills in 5 17 32, then says sex and the officer puts m-color. No information or request of the form for the defendant’s race. It’s wholly gratuitous and I think that’s perhaps not insignificant.
Hugo L. Black: Who made that out?
Niki Z. Schwartz: Officer Sepanic(ph)
Potter Stewart: And was this the arresting officer?
Niki Z. Schwartz: Yes.
Potter Stewart: And was he -- he was officer on the police force of Euclid.
Niki Z. Schwartz: Yes.
Potter Stewart: At Euclid, but he also apparently in another job and that was an employee of this apartment house.
Niki Z. Schwartz: Right.
Potter Stewart: Right?
Niki Z. Schwartz: Right.
Potter Stewart: In which job was he performing in either the rest?
Niki Z. Schwartz: Well, I think it was performing in both of them. There was a case tried in Cayuga County, a year two ago in which the issue was an off duty police officer was killed under circumstances where no premeditation and deliberation could be shown.
Potter Stewart: So it was the first degree murder case if he was the police officer.
Niki Z. Schwartz: That’s right.
Potter Stewart: That was carrying out his duty.
Niki Z. Schwartz: That’s right and the court charged that he was.
Potter Stewart: No I’m sorry. I don’t remember that case. But that’s -- I think the law of Ohio generally.
Niki Z. Schwartz: That’s right.
Potter Stewart: As the police officer as the police officer 24 hours a day, but I wonder if the record shows what his hours were as an employee of the Police Department of Euclid and what his hours were as an employee of this apartment house. That’s all white apartment house where he kept Negroes out of it.
Niki Z. Schwartz: This is not just an apartment. The house is a massive apartment complex which the officer testified at the parking lot for 2000 cars.
Potter Stewart: Yes and which was he that night? You mean getting salaries from both two employers?
Niki Z. Schwartz: Well --
Potter Stewart: That’s what the record shows.
Niki Z. Schwartz: I doubt that he was being paid by the City of Euclid for those precise hours, but he was wearing his uniform --
Warren E. Burger: He was moonlighting on another security job.
Niki Z. Schwartz: But he’s wearing a City of Euclid police uniform. He made an arrest of the defendant at gun point and he called in his fellow officers. It seems to me the --
Potter Stewart: Well the testimony, I don’t have it right here but I -- rather struck me. He didn’t refer on his fellow officers. He said, he called the Euclid Police Department as my department as my fellow officers. I don’t have it here, perhaps I have misread it.
Niki Z. Schwartz: I don’t recall.
Warren E. Burger: Thank you gentlemen. The case is submitted. | 1 |
Earl Warren: Number 156, Elmer F. Remmer versus United States of America.
Leslie C. Gillen: May it please the Court. This case presents these questions.Did the defendant in the criminal income tax case receive a fair trial at the hands of an impartial jury when unknown to the defense, these things were happening during the trial. A friend of the jury foreman met with and conversed with the jury foreman and told him that the defendant was a tax evader and proposed to him the possibility of receiving a bribe. The F.B.I. investigated the matter. An F.B.I. agent interviewed this juror during the trial. The judge, the trial judge and the United States Attorney prosecuting the case determined to keep this matter concealed completely from the defense which they did. And later, a Deputy United States Marshal in charge of the jury revealed the happening to a second juror and told this second juror that there had been an attempt to tamper with the jury. Now, it may please the Court before embarking upon the facts that I believe should be considered here. May I take a moment of the Court's time to record to the Court the judicial events that brought this case before this Court today? The petitioner was indicted for three income -- three income tax years returns for himself and his wife. On February 22nd, 1952, he was convicted or two of these years and that the jury disagreed as to one other year which happen to be the largest year involved. The trial lasted for three full months and this was an involved and closed network case and the jury deliberated for two days. Now, a tiny motion was made for a new trial and included in that motion was a motion for a hearing on the extraneous jury contacts which incidentally came to the attention of the defense for the first time through inquiries by newspaper reporters, the morning after the verdict was returned. The Court denied a hearing of the extraneous jury contacts and this was upheld by a decision of the Appellate Court for the Ninth Circuit. This Court held that it was error to deny the right to a hearing on the extraneous jury contacts and remanded the matter to the District Court with a directive that, an inquiry, a full hearing should be given to the jury incident to determine whether or not the incident complained of was harmful. The matter was assigned to United States District Judge Goodman of the Northern Districts of California and the hearing was held in Reno -- in Carson City, Nevada. The -- Judge Goodman on July 10th, 1954 made a finding and wrote an opinion in which he found that the incident was harmless. The petitioner petitioned this Court for a rehearing which was granted and the entire matter that is the extraneous jury incident and the other points that had been raised in the initial appeal were remanded by this Court to the Ninth Circuit. Now, when that was done, the petitioner, because this particular jury question had never been briefed or orally argued particularly since the remanded hearing, the petitioner petitioned the Circuit Court for permission to file briefs, seriatim briefs and to present an oral argument. The Circuit Court ordered that concurrent briefs to be filed and denied the right to argue and part of the matter submitted without argument. The Circuit Court returned a per curiam opinion in which no reference are mentioned or discussion was contained concerning any point that was raised including of course this jury point. Now, the -- the petitioner then appealed to this Court and certiorari was granted and this, may it please the Court, is the first opportunity that we have or that we have had to present oral argument on this particular point. The petitioner wishes to present to this Court three major contentions. The first contention is that the evidence developed -- that they developed at the remanded hearing before the District Court, not only fails to overcome the presumption of prejudice but on the contrary, it reveals such a shocking disregard for simple justice as to leave no conclusion except the prejudice resulted. Our second major contention is that the District Judge, Judge Goodman, assigned to the remanded hearing misconstrued the scope of this Court's order with regard to what sort of a hearing should be held. And third, we contend that District Judge Goodman applied incorrect rules to the presumption of prejudice. Now, may it please the Court, very briefly the facts in this matter are these. The trial started on November 28th in Carson City, Nevada and as I have indicated, the Court ended on February 22nd, 1952. On the night of December, 18th, when the trial was a little more than two weeks under way, Mr. I. J. Smith, the juror, who later became a foreman of the jury and incidentally, there were two alternate jurors who sat throughout the trial. Mr. Smith received a visit at his home from one Satterly. Now, Mr. Satterly was a professional craft dealer. He was a felon. He had been convicted of a felony and had served time in Oregon penitentiary. He was a business client of Mr. Smith's. He was a hunting companion of Mr. Smith. He was a friend whom Mr. Smith described as one whom he knew quite well. The ostensible purpose of the visit was insurance business. Present at the visit were the two wives of the two men. The wives sat at one end of the living room, the two men setup the other end of the living room and a conversion was had and during the conversation, Mr. Satterly said to Mr. Smith, "You are on the jury. I know Bones Remmer very well. He sold Cal-Neva for $350,000 on top of the table. I believe he got rather $850,000 on top of the table. I believe he got $350,000 under the table. He has $300,000 that he daresn't -- D-A-R-E-S-N-T touch. "Why don't you make a deal with Bones?" Now, in order to avoid any confusion, I might explain to the Court that petitioner, Elmer F. Remmer has a nickname, Bones, and is commonly known as Bones Remmer. And I might also explain to the Court that the Cal-Neva referred to here is a summer resort in Lake Tahoe and it is so situated that the state lines of Nevada and California run through its main lobby so that legitimate gambling takes place on the Nevada side of the resort and the California side of the resort was simply a summer resort, and Remmer had owned controlling shares ultimately in the Cal-Neva corporation. Now, that was a quote, the exact quote which I gave, Your Honor, which was found in the F.B.I. or presented by the F.B.I. agent who investigated the matter. Now, when this was said to Mr. Smith, Mr. Smith replied heatedly and angrily and raised his voice to such a pitch that it attracted the attention of his wife at the other end of the room and he admonished Mr. Satterly, "I am on the jury. I can't discuss this case or you can't discuss this with me." Smith fretted over this incident, the true meaning and the true intention of these remarks by Mr. Satterly for two whole days as he sat on the jury. And on December the 28th, he determined that he should report the matter to the trial judge, Federal Judge Foley of the District of Nevada. And during the Court recess, the morning recess of the Court, he went into the judge's chambers and he reported the matter to the judge and the judge called in his secretary and had her take down in shorthand what Mr. Smith said and the quote that Mr. Smith attributed to Mr. Satterly. Now, for some reason we know not why, Mr. Smith didn't give Judge Foley the entire conversation at that time but he reported to Judge Foley that this was what Satterly said and I quote from the shorthand from the stenographer's notes that were made at that time. He said that Mr. Satterly said to him, "I know Bones Remmer. You are a member of the jury, why don't you make a deal with me?" And for some reason or other, he didn't make any reference to the Cal-Neva incident or the Cal-Neva reference by Satterly. The trial judge as I say called in a secretary, she took a note down and that became an exhibit at the hearing before Judge Goodman. Later that day, the trial judge called in the prosecuting Deputy United States Attorney, the man who was prosecuting the case and confidentially revealed to him what Smith had reported. And together, they determined that the F.B.I. should be called in to make an investigation and together, they determined that this matter should be concealed from the defense. And they were quite frank afterwards, both to the public press and at the hearing before Judge Goodman as to why they concealed it from the defense. They suspected that the defense had inspired Satterly's visit to Smith and if this were so, they wanted to catch the defense red-handed. Now, on December 22nd, two days later, an F.B.I. agent by the name of Collister visited and questioned Mr. Smith. And at that time, Mr. Smith gave the agent a more complete statement of what had transpired in the Satterly visit. And at that time, he gave Mr. Collister this more comprehensive quote and may I quote that again, he quoted --
Speaker: Where -- where -- where in the --
Leslie C. Gillen: I beg your pardon sir?
Speaker: How far on your brief?
Leslie C. Gillen: This, may it please the Court, is at page 167 of the hearing before Judge Goodman, the remanded hearing and it is an exhibit, is it (d), is it not?
Speaker: (Inaudible)
Leslie C. Gillen: Sir?
Speaker: The trial was (Inaudible)
Leslie C. Gillen: Yes, Your Honor. It had begun on November the 28th and continued throughout with some recesses.
Speaker: (Inaudible)
Leslie C. Gillen: Sir?
Speaker: There were no recesses in the trial during the Saturdays --
Leslie C. Gillen: There were Saturday and Sunday recesses and later on in the trial, may it please the Court, due to some blizzards there was a recess and also, there was a Christmas, one or two-day Christmas recess because Christmas, the Christmas season had intervened. I might -- might read from page 67 this exhibit -- 167 this exhibit, these were the notes of the F.B.I. agent. Smith "Yes, I'm busy everyday." He said, and that refers to Satterly. "I know Bones Remmer very well. He sold Cal-Neva club for $850,000 on top of the table, believed he got $350,000 under the table, has about $300,000 that he daresn't touch. Why don't you make a deal with Bones?" Smith stopped him. "You know Jim. I'm not supposed to talk about that case over there. I'm on the jury.” No more was said. The Court had questioned him not to talk about the case but a person persisted bring it to the attention of the Court. Thought that Satterly was feeling him out, I don't believe he has been in contact with Remmer but believe he would make arrangements if reception been cordial. Remmer watched Smith enter judge's chambers to talk to judge during recess Thursday morning, thought it over, decided to report it and so on. Now, if I may proceed. On December the 24th, 1951, the F.B.I. agent made a preliminary report to the prosecuting Deputy United States Attorney and in that report, he said that he had found no evidence to connect the defense with Satterly or Satterly's visit. And it might be noted here that the F.B.I. agent had not attempted to contact Satterly or to interview Satterly or nobody from the F.B.I. had. Sattery -- Satterly had left the State but Satterly's new out-of-state address had been provided by Smith or arranged to be obtained by Smith for the agent. On January the 4th, the agent reported his findings to the trial judge.Further investigation was suspended but the investigation was not closed. In fact, it was not closed for better than two months later. In fact, it was not closed until 16 days after the conviction of the petitioner and as I have stated to the Court, the defense knew nothing with these goings on throughout the entire trial and until the morning after the verdict was returned when newspaper reporters came and made inquiries of us as to what we would have done if we had known that these things had been going on. Now, on January the 4th, 1952 when the F.B.I. agent reported to the judge what he had found out. The F.B.I. agent told the judge about the reference to Cal-Neva and the over-the-table purchase price and the under-the-table purchase price incidentally, Cal-Neva -- Remmer's interest in Cal-Neva was sold along time after the closing bracket of the indictment period, years later. However, the Cal-Neva -- Remmer's financial connections with Cal-Neva Corporation was a very important issue in the trial because his growing account and various other things had been testified to by numerous witnesses throughout the trial. In fact, it was referred to in the opening statement, the trial judge knew that it was an issue and the trial judge learned as the trial went along before Smith reported to him and after Smith reported to him that Cal-Neva was a very important issue. Now, apparently, from the record, the first that the trial judge heard of the Cal-Neva reference by Satterly and his visit to Smith was when the reporter reported the matter -- the agent reported the matter to him. The trial judge did nothing to mitigate whatever had occurred here in the way of prejudice or bias. He -- he didn't declare a mistrial. He didn't call in the defense although in January the 4th, he was advised there was no evidence the defense had any culpability in this thing. He didn't replace Smith by one of the alternate jurors and he didn't even make -- but in our opinion would be -- have been a very feeble and futile attempt to disabuse Smith's mind of any bias that he may have had. And may it please the Court, throughout this entire trial then, Smith, later became foreman of the jury, Smith was left on tenterhooks. Smith was left without any knowledge or information as to what was happening to this investigation. For all he knew, he was under scrutiny and suspicion himself throughout the trial. For all he knew, Satterly might have been contacted by the nationwide F.B.I. organization and for all he knew Satterly for self-preservation, realizing that it was a serious matter might have attempted to turn the tables on him and said, "I didn't proposition Smith. Smith propositioned me. I didn't suggest the bribe to him. He suggested the bribe to me." For all Mr. Smith knew, those things were going on behind his back and we may well realize what could have been the natural reactions of Mr. Smith while he sat through that jury with this cloud hanging over his head. Certainly, it's not unreasonable to believe that Mr. Smith felt that his position was a very precarious one. Certainly, when he became foreman of the jury and commenced on his deliberations with the jury, Mr. Smith must -- as any human being would have felt, must have felt or must have considered seriously what will be thought of me or what will even happen to me if I dare vote for an acquittal in this case. Now, may it please the Court, the third -- the fourth extraneous contact took place with another juror by the name of Curnow, his friend with whom he belonged to a pistol team, the Deputy United States Marshal Boyd, he was one of the Marshals in charge of the jury encountered him during the trial at the time which he placed at about the middle of the three months -- of the three months trial and asked him if he had been approached by anyone on the outside about the case and told him, and there are two statements made by Mr. (Inaudible) on this, told him that somebody had attempted to bribe the juror or told him that somebody had attempted to approach a juror. Now, coming from a government official who is also his friend, it can readily be conceived that this left its mark upon Mr. (Inaudible) Mr. (Inaudible) when this matter was called to his attention by Mr. Boyd, remembered that he had seen a woman juror, a Mrs. Mack walking into the judges chambers and he concluded that it mustn't have been Mrs. Mack who was involved in this attempted approach. Now, as it developed a long time later, Mrs. Mack had paid during the course of the trial a visit to the judge in his chambers. And Mrs. Mack had gone there for an altogether different mission something to do with the health problem of her own. But certainly, this impression that was left with (Inaudible) was carried into the jury room by him when he deliberated. Now, may it please the Court, this Court in its previous decision in this case -- in its previous decision in this case stated that any -- in a criminal case, any private communication, contact or tampering directly or indirectly with the juror during a trial about the matter pending before the jury is for obvious reasons deemed presumptively prejudicial. If not made in pursuance of no on -- rules of court and instructions and directions of the Court made during the trial with full knowledge of the parties. Now, fitting the facts as I have related them to Your Honors with the example laid down, we find the facts to reveal this. There were four direct private communications and contacts involving two jurors during the trial. They were about the matter pending. They were not made in pursuance of known rules of the Court and the instructions and directions of the Court made during the trial and they were without the full knowledge of the parties because as I have said throughout the entire trial, the defense was ignorant of all these going on -- goings on behind their backs. For those reasons, may it please the Court, we contend that the petitioner by reason of these extraneous communications with the jurors, the petitioner was prejudiced in four specific respects. First, Satterly's pretended acquaintanceship incidentally developed later on at the remanded hearing, two and half years later that Satterly didn't know Remmer at all, only knew him by sight, knew his nickname, Bones. Satterly's pretended acquaintanceship with Remmer and Satterly's pretended knowledge that Remmer had gotten $350,000 under the table and therefore, evaded tax to that extent. And the fact that recounting the issue had become a very important issue throughout the trial in our opinion was never negative and that impression was left with the jurors who knew about it or heard about it particularly Mr. Smith. Second, the evidence taken at the remanded hearing does not establish that Satterly's bribery proposal was harmless or was a joke. And third, dependency of the F.B.I. investigation throughout the trial which kept Smith on tenterhooks and led him to believe that he might be under suspicion and scrutiny and the defense being kept in ignorance and certainly under suspicion because Satterly's -- Satterly had never been contacted or interviewed to determine what he meant by his remarks, we submit respectively deprive petitioner of a fair trial. Now, the Court -- this Court in its previous opinion in this case recognizes this danger in this language. The sending of an F.B.I. agent -- I quote, the sending of an F.B.I. agent in the midst of a trial to investigate a juror as to its conduct is bound to impress the juror and is very apt to do so unduly. A juror must be of free to exercise his functions without the F.B.I. or anyone else looking over his shoulder. Now, certainly Mr. Smith was left to believe having received no further information on the subject. He was left to believe that the F.B.I. and perhaps the -- the trial judge and perhaps the prosecuting attorney and Lord knows who else was looking over his shoulder as he sat there deliberating, listening to the evidence and ultimately deliberating on the jury. Now, on the case -- now, may it please the Court, reference has been made and in fact it was adapted and capitalized upon by the Government in this case that Satterly's approach may have been an innocuous approach, may have been a joke and the speculation that it was a joke has gathered momentum in the case. Now, I would like the Court's permission to just analyze whether anybody that was concerned with this matter at anytime treated it as a joke. Smith didn't treat it as a joke first because when the approach to him was made, he replied angrily to a client and a friend. He raised his voice heatedly so that it attracted his wife's attention. He worried and fretted for two days and then he went in and reported the matter to the trial judge during the trial. Now, the trial judge didn't treat it as a joke. He had his secretary take down a memorandum in shorthand and get the exact words that were spoken and they even noted the time that the report was made, 11:05 on the morning of December the 20th that Mr. Smith came into the chambers and reported this. The trial judge didn't take it as a joke or consider it as a joke when he called in the prosecuting attorney for the Government and confidentially told him what had happened. Now, the prosecutor didn't take it as a joke when he and the judge decided to call in the F.B.I. to make an investigation to see whether all this was inspired by the defense. And they didn't take it as a joke when they decided to keep it from the defense because they felt if they let the defense in on it, it would frustrate the investigation that they were going to have the F.B.I. make. Now, the F.B.I. didn't take it as a joke because the F.B.I. agent had to get an official clearance from Washington D.C. as to whether or not he should make the investigation. And the F.B.I. in Washington D.C. didn't consider it as a joke because they gave official authorization for the investigation to be made and the F.B.I. agent didn't consider it as a joke when he went and interviewed Mr. Smith. And Mr. Smith didn't consider it as a joke when he enlarged on the visit of Satterly. And none of the Government officials were involved and that thing considered as a joke when they held the investigation opened and didn't close it until 16 days after the trial had ended and the petitioner had been convicted. And certainly, Mr. Boyd, the Deputy United States Marshal in the middle of the trial didn't consider it as a joke when he told his friend, (Inaudible) that somebody had been -- had made an attempt to bribe or an attempt to tamper with the jury. And so we say, may it please the Court, that certain -- certainly this was not at anytime considered a joke by anyone concerned and this mere speculated contention that it might have been a joke is something that it is now being used -- is now being as an excuse for the flagrant conduct of this entire matter. No attempt was ever made even though it might have been to have abuse Smith's -- disabuse Smith's mind of the possibility that here was a serious thing that he was involved in. We feel that even if the attempt have been made that it would have been futile because we feel it from the very moment that this incident occurred with Satterly and Smith began worrying about it that Smith was fatally infected with prejudice. Now, may it please the Court, petitioner contends that Judge Goodman applied incorrect rules or rather Judge Goodman misconstrued the scope of this Court's directive on the remanded hearing. Judge Goodman interpreted this Court's remand to mean that this Court intended by the words that were used, intended that an inquiry should be made to determine whether the visit of the F.B.I. agent to Mr. Smith alone was harmful and to ignore all the other things in the -- and the results of those other things that occurred subsequently. We don't believe that Judge Goodman was warranted in adapting such a limited interpretation because this Court in its opinion used interchangeably the plural firm of -- form of the word "incidents" as well as the singular form of the word "incident". We had asked for a comprehensive hearing from the trial judge and from the Circuit Court and from this Court to determine just exactly what happened, and we believe, may it please the Court, that this Court was and is now concerned with everything that happened that may reasonably have created a prejudice in the minds of any juror or a juror whether it was an incident or whether it was several incidences. Now, may it please the Court, our final major contention is that Judge Goodman applied incorrect rules as to the presumption of innocence -- presumption of prejudice, I beg your pardon, presumption of prejudice. He followed -- he did not follow the rule that has been consistently adhered to by all of the decided cases that we have read passing on this problem. Those cases hold that the presumption of prejudice requires a new trial unless the circumstances foreclose any reasonable possibility of harm. And we understand that all the petitioner has to do is to show that the overt thing occurred and then from what occurred is to be determined whether or not any reasonable harm would have come or whether or not the presumption has been overcome by showing that it was entirely innocuous thing as some of the cases related where a judge -- trial judge steps to the door of the jury room and says, “Do you jurors want to go to lunch now or later today?” The -- we say, may it please the Court, that the hearing, the remanded hearing not only failed utterly to overcome the presumption of prejudice but as a matter of fact developed some additional things from which the only conclusion that could be reached was that prejudice resulted. Now, Judge Goodman in misapplying the rules concerning such an incident as this stated in his opinion as follows. And I will read from page 38 of the hearing transcript which is part of Judge Goodman's opinion. He says, "But that means, that decision would rest on conjecture and hypothesis and not fact. The Supreme Court had the power to decide the question involved as a matter of law. It did not do so, hence, our decision must be on fact." Now, may it please the Court, I think the answer to that is found in this Court's previous opinion -- previous opinion at page 229 of Remmer versus the United States, 347 U.S.229. This Court said, we do not know from this record nor does the petitioner know what actually transpired or whether the incidents that may have occurred were harmful or harmless. And I think that's the answer to why this Court didn't decide that at the time. In other words, there had never been a hearing held to determine just exactly what had happen, what had transpired and now, there was a hearing held to determine just what had happened. And that hearing we submit wasn't to be limited to one thing, it was to be limited, it was to encompass anything that may have violated the sanctity that surrounds a jury in any case. We feel, may it please the Court, that Judge Goodman took the position of removing the burden which this Court has said rest heavily upon the Government when such a thing occurs as this, remove the burden from the Government and place it upon the shoulders of the petitioner. And in effect require the petitioner to prove that he had been harmed rather than insist that the Government prove that the facts did not reveal reasonably that any harm could have been -- could have befallen the petitioner. Now, may it please the Court, we respectfully suggest after having read every decided case, I believe, extent involving the extraneous contacts with jurors. We believe that this is the most flagrant case of record. We believe that it is far more flagrant that what occurred even in the Mattox case because in this case, the judge participated in what went on and the judge honestly though he may have done it instead of attempting to mitigate the harm was to -- which was done actually exercise judgment which exaggerated or -- or aggravated what harm may have been done. And we submit, may it please the Court, that the conclusion that all of these things that I have related to this Court lead inevitably to the conclusion that there was prejudice that was never overcome that befell the defendant or the petitioner in this case. Thank you.
John R. Benney: May it please the Court. The Government's position in this case is that the District Court did carry out the mandate of this Court, it is previously here. And that the District Court did have before it Judge Goodman on the hearing sufficient evidence to show that the contact here were harmless. In this Court's prior opinion, it stated and I believe we have it in our brief at page -- in the Government's brief at page 24, it announced the rule that any private communication, contact or tampering directly or indirectly with the jury man during a trial about the case was being presumptively injurious or prejudicial. But that that presumption was not conclusive and it could be overcome by evidence, as I understand this Court's decision. But the burden is heavily on the Government to do that and we say the Government has met that burden in this case. There was a hearing of about three days, I believe. The Government presented the testimony of 26 witnesses, everyone who could possibly have any knowledge of the affair. The judge was not very scrupulous in following the rules of evidence and he let in most everything that came on. He gave the petitioner ample opportunity to cross-examine and the petitioner did make a searching -- conduct searching, cross-examination, the Government's principal witness. Now, we say that evidence was sufficient to overcome the presumption of prejudice that the trial court did not abuse its discretion in any manner in finding petitioner was not harmed by these incidents. Now, petitioner's counsel adverts to the fact that the trial judge seem to narrow this Court's opinion down to the F.B.I. investigation where he let in all of the evidence on the contact with the juror and as I see his decision, it decides it on all questions. Now, it's true that Mr. Satterly contacted juror Smith in this case during the trial. That is, he came to his house. He had legitimate business for coming to his house and this juror Smith was an insurance broker and real estate broker and Mr. Satterly had have some insurance business with him and he had -- he didn't come under a protest. He came there for business reasons and while he was there he made this statement, "I know Bones Remmer very well. He sold Cal-Neva Club for 850,000 on top of the table but he -- he got $350,000 under the table, has about $300,000 that he doesn't -- I believe the printer apparently didn't like the word "daresn't" so he -- he corrected it, "doesn't touch. Why don't you make a deal with Bones." Now, those are the words he said. And Mr. Smith, as the Court found, was a very upright and conscientious jury man. That statement bothered him a little. And he said in his testimony that he didn't consider it a serious joke in his own mind at that time, but that he -- that Satterly was accustomed to joking with him, bantering and playing jokes and hunting and shooting his -- someone who testified here that he was shooting the other man -- Mr. Smith decoys when he's hunting. He said -- what bothered him was the trial judge's instructions. Every act -- before every recess, the trial judge admonish the jurors to be careful about talking to anyone else or to let anyone else talk to them about it, about the case if they persisted. Now, he -- he was -- he had a little trouble in his mind. Mr. Satterly shut up quickly when Mr. Smith demonstrated with him, he couldn't talk to him about it. But Mr. Smith thought maybe that came within the judge's instructions and being a conscientious man, he finally decided to relieve his mind. He would have to report it to the judge. He did report it to the judge and at the time he reported it to the judge, he chose the judge, he didn't think it was serious. He thought it was a joke. That word joke is being used a great deal in here, I think, what he did was he didn't consider the serious remark. It was a passing remark made in a joking fashion to him and he stopped immediately. He told the judge that. The judge seemingly was of the opinion that it was and he told him to treat it as such. Now, some moment is made to the fact that the judge called in the F.B.I. Well, it was not an -- exactly the point of what the judge thought of it. It was the point with which Smith thought of it. Smith told the judge at that time -- we think that was evidence that corroborates Smith. The judge testified that Smith told him contemporaneously with this contact with him. A -- a very few days later, the F.B.I. man called upon him in his office.Privately, we admit we make no -- no goings about that. Everything was done here that's been said practically in the way of factual approach to the juror. We -- the F.B.I.man in talking to him received the same statement that he didn't think that Satterly was serious about it. He thought it was a jocular remark.So, so far as Smith was concerned that end of the matter. The judge, when the F.B.I. man came in, he told him, "He thought it was a joke." F.B.I. man made a report. Now, we say that that is strong evidence to support the judge's findings that Smith was not prejudiced. If he didn't take the remarks seriously then it follows that he wasn't prejudiced in the remark or wouldn't carry it along with him. Now, the judge made -- had the investigation made. He probably had some doubt in his mind of what this man Satterly was doing or what he was up to. He probably thought, well, we better investigate him and see what he did said -- say. Now, the -- the conference or the report by Smith to the judge apparently was a very hurried thing and between the recess of the Court in the morning. And it's quite understandable that the judge couldn't take time when his trial was on, he adjust the recess to call a further -- further recess to go on with it until he found out a little more about it. So, he called for the investigation and the F.B.I. man did investigate. Now, there is further testimony that Smith never considered it. He testified that he never consider this as coming from the defendant which of course supports his idea that it wasn't serious. Do you know -- have any idea it was coming or emanating from the defendants at all in anyway fashion. So, his -- his view was that it was not coming from the defendant and that if he had thought that Satterly was serious, he would have thought merely that Satterly was probably just trying to make a deal on his own since -- feeling him out to see whether or not he might be subject to something if he, Satterly, wanted to going in a little farther with it. Now, he had a right probably to think along those lines. Satterly, quite didn't -- didn't seem to have any -- he was working in gambling establishments. Didn't seem to have any regular business or profession, perhaps he made his money on his ways. I don't know it, inferences somewhat along that line. Now -- now -- when -- now, there is also evidence by Mrs. Satterly who said that her husband was always a joker. She testified that. Satterly by the way could not recall whether or not -- he could not recall rather that he had made the remark. He said if he had made such a remark, it was only in fun. Now, we say all of that, the totality of things there were something that the District Court could rely on a showing that Mr. Smith wasn't prejudiced by the remark itself and we say that the fact that he didn't consider is coming from the defendant adds to that and supports it. And we say that the judge's testimony and the testimony of the F.B.I. agent that Smith told them contemporaneously with the act incident that he didn't consider it seriously. We think that is a corroboration of Mr. Smith's statement after hearing here that he didn't consider it seriously at the time and considered it was made in a jocular mood at that time. Now, later on in the hearing, Mr. Smith testified that he wiped the matter from his mind after the -- he talked to the judge and the F.B.I. man. He had nothing more in his mind about it that it -- he wiped it from his mind, it -- to the extent that he forgot. Now, we say all of these things tied in together make a picture from which the Court could reasonably find that Mr. Smith was not prejudiced at any time. We must remember that this was a long trial. It went on for weeks after this and Mr. Smith said that when he came out to the courtroom after the verdict had been rendered and the newspaperman were waiting to meet him and asked him about it that he was dumbfounded that it came up again at the question. He was astonished by the whole thing. Said he'd -- he'd wiped it from his mind, didn't remember. He dismissed the whole thing from his mind. Now, I want to make one statement about the Satterly statement itself. Now, it is -- there's an inference in there, of course, there some quite of an inference in there of bribery or some imaginative. Possibly, you can conjecture that the man meant some bribery under some circumstances but it isn't a direct and persistent attempt with the man who had the potential service fee power to carry it through. He made the statement. He stopped. Mr. Smith knew he was going to leave Reno permanently the next day at least he told him. He was on his way, that is, everything packed when he come by. The reason he came by to Smith because he'd had an accident with his automobile and got another automobile and he had to have his insurance transferred. But he knew he was going to leave Reno the next day and going to leave the State. So, we say that taking all that in its totality, it -- it isn't like a persistent offer to bribe somebody, a definite offer to bribe. It isn't as serious as that in my opinion and in situations where there is a strong implication that it comes from one of the parties in the case. Here, I don't think there was any implication at all that Mr. Satterly was there at the behest of the defendant or any other party in that case. And Mr. Smith felt the same way about it and he was the man contacted. He isn't a -- a man who was evasive in any fashion. He isn't a man who can say anything about it. He wanted to relieve his mind. He wanted to be honest about it. He went to the judge and I think he did relieve his mind. I think instead of hurting the defendant by going to the judge, I think he helped the defendant. He relieved his own mind of any prejudice of any he ever had. Any lingering doubts that he had if he had any. He says they were on the judge's instructions, not that it came from the defendant or not that he was serious. But he was a little worried about the judge's instructions. Now, we think all of those things tie in. Now, Mr. Smith testified directly, he didn't have any prejudice in his mind. That was admitted by the trial judge with a great deal of misgiving. He was afraid that authorities might be divided as to whether that was admissible. Now, there are authorities to the effect. It is admissible if it's corroborated and we say it's corroborated here, there's something corroborated here because Smith testified he didn't consider it seriously and that was corroborated by the judge's testimony and by the F.B.I. agent's testimony of what Smith said contemporaneously with the contact. So, we say that's corroborated. Now, we have -- we have the situation then. To sum up, we have another matter of the (Inaudible) jury. Now, I don't understand the record of saying that a deputy marshall told him that somebody had been approached. He asked him if he heard of any such a thing and when he asked him why he said, "Well, I'm just curious." Now, that the -- they didn't -- the District Judge didn't seem to find that there was another, that the evidence on that did find that the evidence was so vague and he didn't make finding on that. But he said he didn't make a finding that there was no -- no significance to it, no prejudice. He didn't say anything that would cause him to -- to put prejudice in his mind and I think the judge was correct in making that finding. Now, the Court of Appeals agreed with the judge that he was correct in his findings on these things. And we say that under a well-established rule of this Court laid down in the -- both the, I believe in a civil matter in the Group of Investors, I believe it is, Comstock versus Group of Investors. I have to find that in my brief, that -- and the Delanay case and Smith case. They're all cited on our -- I can't seem to (Inaudible) in a second. On those -- on those cases they -- let me find it now, Comstock, 32 -- page 32 of our brief, I believe. In those cases, this Court has laid down the rule and is followed pretty closely that when there's a concurrent findings of two courts below, this Court won't disturbed them unless an very exceptional error has been made. Now, we say there's been no such error made here because there was ample evidence before the District Court to support his decision. Now, his -- since he has made that decisions, since he has made the finding that there was no harm in conformity with this Court's mandate and that is what this Court said in this case to find out if it was harmful. Petitioner's says, "Oh, well there's a heavier burden than that on the Government. He says you got to show not only that there was no actual harm but you got to show that there was no reasonable possibility of harm.” Well, now he -- he seems to rely, I believe, on several cases. He relies on Stone, 113 F.2d CA6 and he relies on Little, 73 F.2d 861, and he also relies on Marine case, a District Court case in Delaware but that seems to me there's two particular cases there, Stone. Stone stated that it could -- the prejudice could be overcome only by showing that no harm might be done. Marine said, could be overcome only if it was shown that no harm could have taken place. And the Little case seems to hold, there isn't overcome unless the contact was necessarily harmless. Now, we say the rule of those three cases if applied here is in conflict with this Court's opinion in sending it back down. This Court said in its opinion that the presumption is rebuttable. Now, we say if you apply or could be a rule or might be a rule or unnecessarily rule, that turns the presumption into a conclusive presumption and there is no, shall I say mathematical way of showing there's no factual way of showing whether there could be harm or whether there might be harm or necessarily be harm. If there was no actual harm then what has the defendant to complain of, no actual harm. Now, I -- we believe that this Court laid down the correct law when it sent the case back and that it meant what it said. It said go down and handle the hearing and determine if it were -- if it was harmful to petitioner, if it was grant a new trial. We say that was what the Court did. It found as a fact and that there was no necessity of it to go into speculation as to what might be or what could be, what necessarily might be, et cetera. Now, we say that if a rule is laid down in this class of cases which foreclosess all fact finding then it opens a door to put some pretty serious abuses. We say that it would make it possible every little jury contact. Now, we're living in an age when juries aren't locked up and made to pass while they are going through their deliberations, as they once were. They are left -- he may leave, permitted to go home. Now, it seems humanly impossible that there may not be a transgression of the judge's orders once in a while but if there is a transgression, we say this Court has laid down the correct rule that go into the matter, hold a hearing and point out that there was any actual harm done. Now, if there's enough evidence to do that, that is all there is necessary and there's no need of a new trial. If it wasn't actually harm, we don't see why it is so important that there couldn't have been any harm, or might have been any harm. Now, as I say, if that -- if the answer -- if the -- the theory underlying that is that we must that all then is to protect the jury system which -- which of course, I agree that we must protect the jury system. It seems though we mustn't open the door to grave abuses of the jury system. It seems to me that it would be just as bad to open the door, as it would be to protect the system. You're going to protect it in the manner that may destroy it, that's dangerous. I -- I could -- a state of -- a statement of Justice Cardozo in Snyder versus Massachusetts, 291 U.S. 122, this was not a case of this kind. This was where -- it was a view by the jury without the defendant's presence, but he said concerning these very thin things that come on in criminal cases. He says there is danger that the criminal law will be brought into contempt, I put some starts. If gossamer possibilities of prejudice to a defendant or can nullify a sentence pronounced by a court of competent jurisdiction in obedience to law and set the guilty free. Now, we think that if he closes the door to fact findings and make conclusive presumptions that it's what that does, it would open the door to abuses and make every contact no matter what something that you couldn't answer. Now, we don't believe the lower court to be that.
Speaker: Well, nuances of that, is that it?
John R. Benney: No.
Speaker: So, is that whether you have any or -- perhaps some are done.
John R. Benney: If you made a conclusive presumption out of it. If you play a rule of law which makes it a conclusive presumption then of course there would have been no need for this Court to send it back down. It could have. It knew that the F.B.I. investigated. It knew that he was contacted through the precise words he said were not before the Court at that time.
Speaker: Well, the rule that you have here is that it then was the conclusion of the judge, whether there was any --
John R. Benney: Harm.
Speaker: Harm.
John R. Benney: That is a rule laid down by this Court in -- when the case was here previously, whether there was any harm to petitioner. Now, the judges found that.
Speaker: They're developed within the lower court on the defense so certain facts --
John R. Benney: That's right.
Speaker: -- gets --
John R. Benney: And the Court has found that there was no harm on those facts.
Speaker: Yes.
John R. Benney: Now, we say, the only reviewable problem here would be whether the judge abused his discretion. We think that's the only reviewable proposition that comes before this Court in the ultimate. Did he really -- did he abuse his discretion? Was there any reasonable amount of evidence there? Was there -- could -- I would say clear and convincing evidence that he -- that there was harm done.
Speaker: And the burden's the other way, isn't it?
John R. Benney: The burden is on the Government. We admit that's -- this Court told us, the burden was on the Government. We met that burden. We went ahead with the evidence, went on with 26 witnesses. We did all of that and we say now it's true. I -- I don't agree Your Honors that judges should talk to jurors by themselves or I don't believe that they ought to call in the F.B.I. during a case. But -- and it may will be that the Court made a mistake in doing that. But we say that matter was before the Court before and the Court sent it back for a hearing on the facts to determine harm, and we say therefore that if you can't say now that it would've lay him off at that time, that it would've come out anything more than come out at this time. A record was made of what was said and done, not only by the judge and but by the F.B.I. man. Now, it does seem that's a little different from everyone calling on his own memory at this late date to determine this. They are corroborated by written writings that were made contemporaneously with that. Now, we say that there was ample evidence here to do that, to show no harm. The Court was right in doing it. That the Court did follow the rule laid down by this Court for it to follow in determining whether there was harm, and that it was not under any duty to apply a rule of any other quantum or measure of evidence in order to decide the case. We respectfully submit that the decision should be affirmed.
Leslie C. Gillen: May it please the Court. I should like to answer one or two contentions made by my opponent. He began by saying very lightly that Mr. Smith after this encounter with Mr. Satterly, that it bothered his mind a little and that he reported it to the judge and after that, the weight of this burden was taken off his shoulders and he thought no more about it, everything was fine after that. But as a matter of fact throughout the entire trial Mr. Smith was, as I pointed out before I left, uninformed of what kind of an investigation was being made, what was being developed by it, what was the result of it, whether he was being watched or not. And as a matter of fact, we find and the record reveals that on the very night of February 22nd, 1952, immediately after the jury returned its verdict and was discharged. And on their way home that Mr. Smith was still fretting over, and worrying over, and puzzled over the contact that he had from Mr. Satterly -- with Mr. Stterly. There was an arrangement between these jurors, an expanse sharing arrangement that they would ride back and forth those who lived in Reno, back and forth to Carson City, a distance 30 miles where the case was being tried. And Mr. Smith, a juror, Mr. Timken, Juror Mrs. Mack, and a Juror -- Alternate Juror Morris rode back and fought together. As they were riding back to Reno, after returning the verdict on the night of February 22nd, 1952, as the record reveals, Mr. Smith advised or informed Mr. Timken that during the trial, he had been approached by someone and that he was not sure. But that he was being felt out to see whether or not he would be amenable to taking a bribe and that he had reported it to the judge and that is found at page 184 of the remanded hearing transcript. The question was by the United States Attorney, "Do you recall during that trip?" This is the trip home, "The conversation between you and Mr. Smith and Mrs. Mack?" Answer "It was a general conversation, what a relief it was to be through with the thing and what a strain it had been and so on and so forth." And then he says, I think this is the concluding lines of his answer. Mr. Smith mentioned that he didn't know whether he had been approached or not, and so he reported it to the judge and it was passed over. That was about the text to the thing. I couldn't say word for word. And on the next page, he was asked whether during the trip -- whether during the trip to from Carson City to Reno, "Did Mr. Smith tell you at that time, what happened to him?" Answer "That as you mean as to Satterly?” Question “Yes.” Answer “He didn't use any name as I can remember and as I've said, it was mentioned in a casual way. He -- he had thought possibly, he had been approached, and he had brought it to the judge.” Now -- and the question "He mentioned it on that trip?" Answer "Yes. That night." Now, that was the night after the -- immediately after returning the verdict. Now, on that night when they got from Carson City to Reno, they changed automobiles and Mr. Smith drove Mrs. Mack to her home at another part -- in another area of Reno. And, at that time, at her front door, they had a conversation. And that is found, may it please the Court, at page 174 and page 175 of the remanded hearing transcript. And this was -- I believe, the jury's examination -- oh, this is cross-examination and by myself, question “Mrs. Mac, did Mr. Irving Jay Smith ever thanked you for participating in finding Mr. Remmer guilty on some of the counts of the indictment and tell you that he had been under pressure?" Answer "He did." And on page 175, I might read the answer, "And when and where did he say that?" Answer "That night he brought me home from Carson City on February 23rd," it was the 22nd, she made an error on the date, "And picked up his car, Mr. Timken's house and brought me to my home at 105 Gardener Street. I asked Mr. Smith if owed him any money and he said, no, and I thanked him for the ride. And he also said to me, I want to thank you too Mrs. Mack because, I had been under terrible pressure." And lower down on the same page 175. Question "Did you ask Mr. Smith what he meant by his remark that he was under pressure?" Answer "I didn't truly ask Mr. Smith, no. He said, sometime I will discuss it or we will to get together and talk or something of that kind, and I thanked him and said good night." Now -- now, may it please the Court, a few days later or rather two weeks later, Mr. Smith met Mr. Morris, the Alternate Juror, Mr. Morris wasn't on the home trip from Carson City to Reno that night because the jury had been out two days, the alternate jurors had been excused so that Mr. Morris wasn't riding on that occasion. And two weeks later, he had met Mr. -- Mr. Smith and Mr. Morris met in Reno. Mr. Morris had by this time seen the publications in the Daily Press about this incident that had occurred during the trial, incidentally that as -- has always been a very significant thing. Throughout a three months trial, the defense was kept completely in the dark about this contact, the F.B.I. investigation, everything else. But the Deputy United States Marshal knew about it, and the press knew about it because immediately after the -- the jury went out, the press went to the United States Attorney and went to the judge and asked them, what about this contact that was made with the jury? It appears that a lot of people knew about it but certainly the defense didn't know about it. Now, when Mr. Morris, Elton Morris, the Alternate Juror and Mr. Smith met, Mr. Morris had seen this in the newspapers and Mr. Morris asked Mr. Smith about it. And the question is -- and the answer is on page 221 of the same remanded hearing transcript. Question "Well, did Mr. Smith tell you that the man told him --
Hugo L. Black: Did you say 221?
Leslie C. Gillen: I beg your pardon? 221, Your Honor, of the -- of the remanded hearing, Judge Goodman's hearing. The question was asked, "Well, did Mr. Smith tell you that the man told him if he strung along with Mr. Remmer as a juror in the case that he could make himself some month -- make himself a lot of money." Answer "Well, there were words to that effect." Question "By the way, do you know Satterly yourself?" Answer "I didn't know him till he was here, don't know who he was." And again on page 222, Mr. Morris testified. Question "Tell me what he said that is in regard to what he thought about Mr. Satterly approaching him." Answer "That he had known that man. That he joked a lot.” Did he evidently figured it was a joke -- that he evidently figured it was a joke? The reason he took it to the judge, he kind of wondered if the man was feeling him out or wasn't feeling him out and he just wanted to know what to do about it, the reason he took it to the judge." This was cross-examination. Now, I would like to answer with regard to what my opponent said about the Curnow act. Now, the Curnow incident was dismissed by Judge Goodman in a footnote of his opinion. But Mr. Curnow set a good deal or more about this contacted that was made with him by the Deputy United States Marshall, both in testimony and in -- in an affidavit that he made for an agent McGee of the F.B.I. The -- Curnow's testimony is found at page 209 of the particular testimony, I'm going to refer to, of the remanded hearing. He was asked, "Now Mr. -- now, Mr. Curnow did you say to Mr. McGee, the Federal Bureau of Investigation Agent that you have noted that Mrs. Mack, one of the two women jurors had gone into the judge's chambers, and you thought at the time Mr. Boyd's remark therefore concerned her. However, you later learned that she had been mentioning an illness problem to the judge, is that so?" Answer "Yes." Question "So in other words, when Mr. Boyd talked to you about some juror here being contacted, you recalled that you had seen Mrs. Mack going into the judge's chambers and you thought she was the juror who was approached, is that correct?" Now, may it please the Court, there was an exhibit taken from the United States Attorneys' Office and put in by the petitioner of this hearing, of this remanded hearing. And in that, and that is found at page 210 it says, defendant Exhibit F and that was a statement taken on March 23rd, 1954 at Reno, Nevada by F.B.I. agent Mr. McGee, who was evidently investigating in preparation for remand hearing for the United States Attorneys' Office. And that reads impart, I was a juror in the case of United States versus Elmer Remmer. I did not at anytime receive any information from I.J. Smith during the course of the trial that he had been approached by a person concerning a matter possibly connected with the trial. I do recall that during the trial I was asked by Deputy United States Marshal Hue Boyd, whether I had heard of anyone being contacted that is anyone on the juror -- jury. Mr. Boyd also asked me whether anyone on the jury had discussed anything indicating that someone on the jury had been contacted. I answered Mr. Boyd on the negative, since no such matter had come to my attention. I -- and then later in -- in the same affidavit probably page 211, the same transcript, as a matter of fact, I had noticed that Mrs. Mack had gone into the judge's chambers and I thought at the time that Boyd's remark might therefore concern her. However, I later learned that she had been mentioning an illness problem to the judge, so that Mr. Boyd and Mr. Curnow had discussed, may it please the Court, that there had been an approach or a contact with a juror and nothing had ever been done to negative or that in Mr. Curnow's mind or to disabuse Mr. Curnow's mind of what might have happened. Now, may it please the Court, we -- we cannot conceive how counsel can contend that the presumption of prejudice was overcome here in the light of these overt acts that were established at the remand hearing and that were presented to Your Honors this morning. We cannot see how counsel can distinguish this case from the Mattox case. And in our opinion, we feel that this case is more flagrant even as I have said in the Mattox case. The Court will remember that in the Mattox case, the matters complained of was that where that the -- that the bailiff who was in charged of the jury, had apparently in a friendly way, not an F.B.I. agent investigating a juror, but this bailiff had in a friendly way advised the jurors that he had some information on this case that this wasn't a first man that Mattox had killed, that Mattox had killed another man. Now, let us -- let us compare that with what happened here. A man approaches a juror and proposes the possibility of a bribe. Now as we said it didn't take it as a joke, despite what counsel said. He didn't take it as a joke said Smith didn't because he raised his voice angrily at this man that he knew who was given the joking. He raised his voice angrily. He fretted about it for two days, and he then went and reported it to the judge and two days after that, an F.B.I. agent was accusing him about the thing. The judge was setting a motion in the investigation. The prosecuting attorney was setting a motion in the investigation. The defense was kept in dark -- in the dark about the thing. Now, very closely akin to the Mattox case is the contact between Boyd and the -- the juror Curnow and that of course was a remark, not about something that the petitioner has done but about something that was being done with the juror. And it's not unreasonable to believe that, the only conclusion that could have been drawn by Mr. Curnow or the only conclusion that could've been drawn by Mr. Smith was that any illicit proposal or any improper conduct toward the jury was certainly not being done by the Government, it was being done by the defense. That's the only conclusion that they could've arrived at. And, may it please the Court, it became -- it became -- insofar as Mr. Smith was concerned, it became most harmful because of the reference to the under the table county, the corporation transaction. Because the record will show, may it please the Court, that there were numerous witnesses testifying right at the time that this was going on about Cal-Neva, making it a very important issue. December the 19th, there was testimony about the petitioner's relation, financial relations with Cal-Neva. December the 19th, there was testimony on that.December the 18th, Mr. Smith was contacted by Satterly. December the 20th, there was testimony of that -- about that commencing at 10 o'clock in the morning in the original transcript of the trial at page 1599. At 10:05 that morning there was a -- 10:05 that morning -- no at 11:05 that morning, I beg your pardon, 10:55 that morning, there was a recess taken, it is noted in the record, and the shorthand reporter's notes are at least this -- the judge's secretary's note showed that she took down this memorandum of Mr. Smith's visit to Judge Foley at 11:05 and there was a reconvening of the Court's morning session at 11:15. On December the 20th, there was testimony about Cal-Neva and the petitioner on January the 2nd, 1952, there was testimony about it from two witnesses. On January the 3rd, there was testimony about it from two witnesses. And on January the 4th, the day that -- that Judge Foley received the report from Mr. Collister, there was a day's recess because one of the Government attorneys had to be at hearing at San Francisco. And on the following court day, which is was a Monday, January 7th, now the judge had received the report, telling them for the first time about this important issue was discussed by Satterly and also telling him that the investigation showed no connection between the defense and Sattery. On January the 7th, there was further testimony about Cal-Neva and also, on January the 8th and for practically, every other day during the taking of testimony reference was made about the Cal-Neva transaction. And Mr. Smith was hearing that everyday. And Mr. Smith was remembering everyday that Satterly said, "I know this man, this defendant very well. He sold this place for $850,000. He got $350,000 under the table. He has $300,000 that's available. Why don't you make a deal with him, you're on the jury?" Now, may it please the Court, we submit that no reasonable purchase can review these facts and say here there was presented a situation which could not reasonable have caused either one of these jurors to have a -- a -- an incurable prejudice against the defendant in this case either to distress and dislike from what they thought might be going on or for fear of their involvement that they too should be charged with oppression. Thank you. | 2 |
"Warren E. Burger: We’ll hear arguments next in 73-187, Kewanee Oil Company against Bicron Corpora(...TRUNCATED) | 3 |
"Warren E. Burger: Mr. Frey, you may proceed whenever you are ready.\nMr. Andrew L. Frey: Thank you,(...TRUNCATED) | 4 |
"William H. Rehnquist: We'll hear argument first this morning on No. 87-1165, California v. the Unit(...TRUNCATED) | 5 |
"John G. Roberts, Jr.: We'll hear argument this morning in Case 19-67, United States versus Sineneng(...TRUNCATED) | 6 |
"John G. Roberts, Jr.: We will hear argument first this morning in Case 12-1281, the National Labor (...TRUNCATED) | 7 |
"Earl Warren: Number 352 Betty Levin, et cetera Petitioner, versus Mississippi River Fuel Corporatio(...TRUNCATED) | 8 |
"Earl Warren: Number 13, Lee Walker, Appellant, versus City of Hutchinson, Reno Country, Kansas, et (...TRUNCATED) | 9 |
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