# Smith v. United States (360 U.S. 1)/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Clark
United States Supreme Court
360 U.S. 1
Smith v. United States (360 U.S. 1)
Argued: Jan. 21, 1959. --- Decided: June 8, 1959
The petitioner seeks relief under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, from his conviction and sentence for violation of the Federal Kidnapping Act, 18 U.S.C. § 1201, 18 U.S.C.A. § 1201. Briefly, the kidnapping charge grew out of the following facts: Petitioner, a young man of twenty-six, and two seventeen-year-old boys, while in custody under state charges, escaped from a Florida jail on November 12, 1949. They were almost immediately pursued by men and bloodhounds through swampy everglade terrain. On November 14, 1949, they allegedly pre-empted an automobile and seized its owner forcing him to accompany them into the State of Alabama where they released the victim without harming him and subsequently abandoned the car. On November 18, 1949, the defendants were arrested by federal authorities in a hiding place under the floor of a building. Petitioner claimed that he was weak from lack of food and sleep and that his back had been injured in the course of the escape. The defendants were taken promptly before the United States Commissioner where they were charged with transporting a kidnapping victim across state boundaries.
On the following day, petitioner was interviewed at length by a government agent concerning both the kidnapping offense and his prior record. There was a conflict in the evidence concerning what transpired at this interview. The petitioner testified that he was promised leniency if he would plead guilty and that he was assured that the juveniles would be given no more than four years, imprisonment if they pleaded guilty. The Government offered evidence to the effect that no promises were made. In any event, on Monday morning, November 21, 1949, petitioner and his codefendants were brought by the government agent to the office of the United States Attorney where a discussion ensued concerning waivers of indictments, counsel, and venue, and pleas of guilty to an information which the United States Attorney proposed to file.
While that conference was proceeding, the government agent who had previously interviewed petitioner had a private out-of-court audience and conference with the district judge in his chambers at which, in the absence of the defendants, he discussed the contemplated proceedings with the judge and informed him about the alleged kidnapping offense and other alleged crimes of petitioner. Soon thereafter, and, in the words of the Court of Appeals, '(a)fter the judge's mind had become thoroughly conditioned by this interview with, and the disclosures made to him by, (the government agent) regarding the defendants,' there followed in open court 'a stilted and formal colloquy consisting of brief and didactic statements by the judge' that the defendants could have a lawyer if they wished and could have their cases submitted to a grand jury. 5 Cir., 238 F.2d 925, 927, note 5. The defendants, including petitioner, stated that they did not wish to have an attorney and were willing to waive indictment and be prosecuted under an information to be filed by the prosecutor. The information was immediately filed and the defendants waived counsel and venue. They then immediately pleaded guilty to the information and stated that they wanted to be sentenced promptly before their parents knew of their predicaments. The judge then sentenced petitioner to thirty years in the penitentiary and the two seventeen-year-old accomplices to fifteen years each. No appeals were taken.
Because of these precipitous and telescoped proceedings, the case has had a long and troublesome history in the Court of Appeals for the Fifth Circuit. It has been three times before that court. Soon after the sentence was imposed, petitioner filed his initial application under § 2255 to vacate the judgment. The application was denied without a hearing and no appeal was taken. In March 1954 petitioner filed a second, similar application which was likewise denied without a hearing, but on appeal the Court of Appeals determined that petitioner's allegations required a hearing. Smith v. United States, 5 Cir., 223 F.2d 750. After the hearing was held, the District Court again dismissed the application. D.C., 137 F.Supp. 222. Again the Court of Appeals reversed, this time finding that petitioner had been deprived of due process by the summary manner in which the Government had proceeded against him. Smith v. United States, 5 Cir., 238 F.2d 925, 930. First the court remanded the cause 'with directions to grant the motion, to set aside the conviction and sentence, and to proceed further and not inconsistently' with the opinion. 238 F.2d at page 931. On rehearing, however, the court modified its directions as follows:
'The judgment is reversed and the cause is remanded with directions to set aside the conviction and sentence and to proceed further and not inconsistently herewith, including, if the district judge is of the opinion that the ends of justice require it, permitting the defendant to withdraw his waiver of counsel and his plea of guilty and to stand trial.' 5 Cir., 240 F.2d 347.
On the remanded proceedings, the District Court resentenced petitioner, but refused him permission to withdraw his waivers and guilty plea. The Court of Appeals affirmed this decision, Smith v. United States, 5 Cir., 250 F.2d 842, over the dissent of Judge Rives who believed that the court's action in setting aside the conviction on justified due process grounds necessarily required the vacation of the plea of guilty. 250 F.2d 842, 843-844. He also dissented on the ground that kidnapping under 18 U.S.C. § 1201, 18 U.S.C.A. § 1201, is a capital offense, which, pursuant to the Federal Rules of Criminal Procedure, Rule 7(a), requires prosecution by indictment regardless of a defendant's waiver, and that prosecution by information in the instant proceeding had not conferred on the convicting curt jurisdiction to try petitioner's case. We granted certiorari because of the serious due process and statutory questions raised. 357 U.S. 904, 78 S.Ct. 1153, 2 L.Ed.2d 1155. But in view of our belief that the indictment point is dispositive of the case in petitioner's favor, we find it unnecessary to reach the due process questions presented.
The precise question at issue, therefore, is whether petitioner's alleged violation of the Kidnapping Act had to be prosecuted by indictment. A number of statutory and constitutional provisions and the information charging petitioner are relevant to this inquiry. The Fifth Amendment provides in part that '(n)o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury,' except in cases not pertinent here. But the command of the Amendment may be waived under certain circumstances, and the Federal Rules of Criminal Procedure, Rule 7(a), provide as follows:
'An offense which may be punished by death shall be prosecuted by indictment. An offense which may be punished by imprisonment for a term exceeding one year or at hard labor shall be prosecuted by indictment or, if indictment is waived, it may be prosecuted by information. Any other offense may be prosecuted by indictment or by information. An information may be filed without leave of court.' (Emphasis added.)
These enactments become particularly pertinent in view of the language of 18 U.S.C. § 1201, 18 U.S.C.A. § 1201, the statute under which petitioner was convicted, which provides in part that:
'(a) Whoever knowingly transports in interstate * * * commerce, any person who has been unlawfully * * * kidnapped * * * shall be punished (1) by death if the kidnapped person has not been liberated unharmed, and if the verdict of the jury shall so recommend, or (2) by imprisonment for any term of years or for life, if the death penalty is not imposed.'
The charging part of the information against petitioner stated that he 'did knowingly transport in interstate commerce * * * a person, to wit, Alan W. Spearman, Jr., who had been unlawfully seized, kidnapped, abducted, and carried away and held for the safe conduct of the three defendants * * *.' The charge did not state whether Spearman was released harmed or unharmed.
It has been held by two Courts of Appeals that indictments similar in terms to the charge here were sufficient to support capital punishments despite the absence of allegations that the kidnapping victims were released harmed. United States v. Parrino, 2 Cir., 180 F.2d 613; Robinson v. United States, 6 Cir., 144 F.2d 392. Cf. United States v. Parker, 3 Cir., 103 F.2d 857. Petitioner contends that these holdings dispose of his case because they make clear that the statute creates a single offense of kidnapping which may be punished by death if the prosecution, at trial, shows that the victim was released in a harmed condition. The Government claims, however, that whether a specific kidnapping constitutes a capital offense requires examination of the evidence to determine whether the victim was released harmed or unharmed; in other words, that the statute creates two offenses: kidnapping without harm, which is punishable by a term of years, and kidnapping with harm, which is punishable by death. Further, the Government contends that the mere filing of an information by the United States Attorney eliminated the capital element of the crime.
The Courts of Appeals which have been concerned with the statute have uniformly construed it to create the single offense of transporting a kidnapping victim across state lines. We agree with this construction. Under the statute, that offense is punishable by death if certain proof is introduced at trial. When an accused is charged, as here, with transporting a kidnapping victim across state lines, he is charged and will be tried for anoff ense which may be punished by death. Although the imposition of that penalty will depend on whether sufficient proof of harm is introduced during the trial, that circumstance does not alter the fact that the offense itself is one which may be punished by death and thus must be prosecuted by indictment. In other words, when the offense as charged is sufficiently broad to justify a capital verdict, the trial must proceed on that basis, even though the evidence later establishes that such a verdict cannot be sustained because the victim was released unharmed. It is neither procedurally correct nor practical to await the conclusion of the evidence to determine whether the accused is being prosecuted for a capital offense. For the trial judge must make informed decisions prior to trial which will depend on whether the offense may be so punished. He must decide, among other things, whether the accused has the right to obtain a list of veniremen and government witnesses, 18 U.S.C. § 3432, 18 U.S.C.A. § 3432, whether venue is properly set, 18 U.S.C. § 3235, 18 U.S.C.A. § 3235, whether the accused has the benefit of twenty rather than ten peremptory challenges, Federal Rules of Criminal Procedure, Rule 24(b), whether indictment rather than information is necessary, Federal Rules of Criminal Procedure, Rule 7, and who may bail the accused. 18 U.S.C. § 3141, 18 U.S.C.A. § 3141.
This Court has, in recent years, upheld many convictions in the face of questions concerning the sufficiency of the charging papers. Convictions are no longer reversed because of minor and technical deficiencies which did not prejudice the accused. E.g., Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95 L.Ed. 774; United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92. This has been a salutary development in the criminal law. But the substantial safeguards to those charged with serious crimes cannot be eradicated under the guise of technical departures from the rules. The use of indictments in all cases warranting serious punishment was the rule at common law. Ex parte Wilson, 114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348, 6 S.Ct. 777, 29 L.Ed. 909. The Fifth Amendment made the rule mandatory in federal prosecutions in recognition of the fact that the intervention of a grand jury was a substantial safeguard against oppressive and arbitrary proceedings. Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Hale v. Henkel, 201 U.S. 43, 26 S.Ct. 370, 50 L.Ed. 652; U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 16, 76 S.Ct. 1, 4, 100 L.Ed. 8. Rule 7(a) recognizes that this safeguard may be waived, but only in those proceedings which are noncapital. To construe the provisions of the Rule loosely to permit the use of informations where, as here, the charge states a capital offense, would do violence to that Rule and would make vulnerable to summary treatment those accused of one of our most serious crimes. We cannot do this in view of the traditional canon of construction which calls for the strict interpretation of criminal statutes and rules in favor of defendants where substantial rights are involved.
It is urged that this result will fail to protect substantial rights of defendants in other cases. We see no merit in that contention, particularly where the opposite conclusion would deprive defendants of the protection of a grand jury indictment as required by the Constitution and Rule 7(a). Under our holding, there is no reason to believe that a defendant in a case such as this would be surprised on his trial by any possible trickery of the prosecution. If there is no allegation of harm in the indictment, the discovery proceedings afforded in capital cases and the provisions of Rule 7(f) authorizing bills of particulars will enable the defendant to acquaint himself with the scope of the trial and the criminal transaction to be proved. It is further suggested that it mightbe in the interests of the defendant to have the benefit of the speed that can be mustered by the filing of an information instead of an indictment. While justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed. It is well to note that in this very case the inordinate speed that was generated through the filing of the information caused many of the difficulties which led the court below to conclude that petitioner had been deprived of due process of law. Moreover, if, contrary to sound judicial administration in our federal system, arrest and incarceration are followed by inordinate delay prior to indictment, a defendant may, under appropriate circumstances, invoke the protection of the Sixth Amendment.
Under our view of Rule 7(a), the United States Attorney did not have authority to file an information in this case and the waivers made by petitioner were not binding and did not confer power on the convicting court to hear the case. Cf. Ex parte Wilson, supra. The judgment and conviction are reversed and the case is remanded to the District Court with instructions to dismiss the information.
It is so ordered.
Judgment reversed and case remanded with instructions.
Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, concurring in part and dissenting in part.

## Notes

* ↑ 18 U.S.C. § 3235, 18 U.S.C.A. § 3235, provides:
* ↑ This left petitioner with a substantial sentence still pending in Florida under the charge for which he was in custody when he escaped. In addition, petitioner was apparently still in jeopardy of state prosecution for escaping.
* ↑ The Court of Appeals stated, at 238 F.2d 930:
* ↑ Barkman v. Sanford, 5 Cir., 162 F.2d 592; United States v. Gill, D.C., 55 F.2d 399.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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