Earl Warren: Number 89, Knut Einar Heikkinen versus United States of America. Mr. Rein.
David Rein: Court please, petitioner here was convicted on both counts of the two-count indictment charging a violation of Section 23 of the Internal Security Act of 1950. The offenses alleged in the indictment provided under statute in which he was convicted were one, a willful failure to depart; and two, the second count, a willful failure to make a timely application for travel documents necessary to his departure from the country. Both of these failures were alleged to have occurred during the six-month period following an order of deportation entered against the petitioner. In other words under the statute, under the statute the crime is for an alien against whom an order of deportation as been entered, willfully fails to depart or willfully fails to apply for travel documents. As I say the petitioner is convicted on both counts. He was sentenced to a five-year of prison term on the first account, and imposition of sentence on the second count was differed until completion of the sentence on count one. Petitioner is a 67-year old alien, a native of Finland. He was ordered to be deported by the immigration service on the basis of a finding that he had been a member of the Communist Party from 1922 to 1930 and he was therefore deportable in accordance with the provisions of Section 22 of the Internal Security Act of 1950. This order of deportation was affirmed by the Board of Immigration Appeals on April 9th 1952. Some nine or ten days after the order of deportation was affirmed by the Board of Immigration Appeals, the petitioner was visited by a representative of the immigration service, Mr. Maki. The purpose of this visit was to complete a service form, to prepare and complete a service form headed Passport Data for Alien Deportees. This was the form regularly utilized by the service to obtain the personal history of any deportees in order to procure in accordance with its usual practice, the necessary travel documents for aliens. Mr. Maki told the petitioner that the form would be used by the government for that purpose. The petitioner fully cooperated with Mr. Maki. He gave him all the necessary information and the form was duly forwarded to the Chicago office of the service for processing. The record does not indicate what happened to that form subsequently. The government introduced no evidence on the point. Petitioner's efforts at the trial to discover what had occurred with that form was blocked by the Trial Court, the Trial Court saying it was completely irrelevant since the government owed the petitioner, in the Trial Court's language owed the petitioner no duty to assist him in affecting his departure. On April 30th 1952, and this is about a week to ten days after the visit to the petitioner by Mr. Maki, the officer in charge of the Duluth service, Duluth office of the immigration service sent a form letter to petitioner. It was on a mimeograph form and that letter is set out in full at page 8 to 9 of our brief beginning, “Dear sir, an order of which you have been notified directing your deportation on the following grounds has been entered.” The crucial paragraph, we'll now deal with that letter, we have italicized, upright italics at page A and that paragraph reads as follows. “Arrangements to affect your deportation pursuant to search order are being made and when completed, you will be notified when and where to present yourself for deportation.”
Earl Warren: Mr. Rein, was there any such language in that form, that original form that you mentioned a few moments ago, was a clause like that given?
David Rein: No, the original form merely contained, it was not a form letter sent to -- it was a blank --
Earl Warren: A blank?
David Rein: -- in which the petitioner -- all the information on the form was filled out by the petitioner, in which he gave his name, his birthplace, his residence, where he might have been a citizen and the purpose of that, sole purpose of that form was so that the service should have the necessary data to procure travel documents for him to be deported. The petitioner had in the deportation proceeding indicated, as he is entitled to under the statute, as it is granted the right on the statute, the choice of country to which he should be deported as Finland, his native country and this form is to get the necessary information so that the immigration service can go to Finland or the proper authorities in Finland to get travel documents for him to go to Finland and he did not keep that form, that form was then taken by the representative of service.
William J. Brennan, Jr.: Well does the service take a labeling or –
David Rein: Well it normally does so far as it is in this record as a matter of fact, within the service that is usual practice to take the labeling. As a matter of fact, we have the only testimony on this Court, in this record, the testimony given by the same Mr. Maki that so far as he knew, the petitioner could not have gotten a passport or travel documents except by going through the service. He did not know, well, let's put it this way, the question was asked could the petitioner have gotten travel documents on his own and he said, “I do not know if that would have been possible.”
William J. Brennan, Jr.: Well, if it is the service's labeling or is that the consequence of any statute or just something the service does?
David Rein: Just something that seems to be their normal practice, I can say that under the statute they are required to do it or they have the legal obligation, it just seems to be their normal procedure, procedure which -- that people get deported. As I understand the purpose of it and the purpose of the statute was in a case where they in some reason or rather didn't succeed they could call upon the petitioner or the alien to do whatever might be necessary to pull out whatever documents might be necessary or to assist them in any way. I don't say that statute puts that upon the service, but that does seems to be the normal practice at least far as appears from this case and is, that is my notion. Now perhaps the government might say otherwise.
Speaker: Is this the first questionnaire that was excluded by the court indicate to which country this man was to be deported?
David Rein: No questionnaires was not excluded I am sorry --
Speaker: Well I misunderstand --
David Rein: The questionnaire which he filled out is in evidence and that indicated that the choice of country is Finland. What was excluded by the court, was what was -- information as to what the service did with that questionnaire and that form. In other words, we know that he filled out the questionnaire, Mr. Maki took the questionnaire. It was sent from the Duluth office of service to Chicago, and then we have a blank as to what the service did with it, whether they sent it on to Finland, the Finnish Embassy or didn't or just what happened, I mean that aspect was excluded, but the actual questionnaire is an exhibit in evidence I think it's exhibit number nine.
Hugo L. Black: Where is the question?
David Rein: I am sorry.
Hugo L. Black: In the record where do we find that question that you referred?
David Rein: Questionnaire?
Hugo L. Black: You say they excluded --
David Rein: Well, it was excluded by the fact -- it was done at the -- prior to the trial, a motion was made, for the documents which would show what the government did in order to process his application and at page -- the record at page 19, that motion was denied by the court on the ground, you'll find the colloquy from 19 to 21 in which the motion was made at pre-trial to get the correspondence that the government may have had with Finland, Canada or any other country on the basis of that questionnaire and the court there said, that it would not permit that to be brought into evidence, we were directed to be produced on the ground and I think it is set out on page 19. I don't care what correspondence the government had with Finland or Canada or anywhere else for the records to his deportation after that order was entered. They owe him no duty. It was his duty to obey that order. That is all to this and that's what the court's view point. We proceed then on the chronology of events here, this letter of April 30th which I have read the italicized paragraph informing the petitioner that the government was proceeding to make arrangements to effect his deportation and that he will then be notified when and where to present himself for deportation. The letter then set out the text of Section 23 of the Internal Security Act of 1950 and concluded at page 9 with a paragraph, “Therefore you will recognize the importance of making every effort in good faith to obtain passport or other travel documents so that you may effect your departure pursuant to the said order of deportation within the time prescribed by the quotation above in the Internal Security Act of 1950.”
William J. Brennan, Jr.: Page 9.
David Rein: I'm sorry.
William J. Brennan, Jr.: Did you mean page 9 of the record?
David Rein: No I am sorry I mean page 9 of my brief. It appears in the record at 74 to 75, but it is set out in our brief this particular letter at page 8 to 9.
William O. Douglas: (Inaudible)
David Rein: There was an evidence, what was excluded, if I may make that clear, is what the government did with that form.
William O. Douglas: (Inaudible)
David Rein: The record does not show what the counsel's arguments to the jury, and I don't know what -- what arguments were made to the jury. I don't think they were transcribed at all, and the record does not contain the jury arguments. I would indicate as I get to later that under the instructions, it would have been completely irrelevant as far as the court seem to think. Petitioner was again interviewed by representatives of the service on February 12th 1953 at which time he gave them a sworn statement that was introduced into evidence at the record and it is set out or the pertinent portions of them were set out in full at our brief from page 9 to 12. The gist of this statement was the petitioner's acknowledgment that subsequent to the interview, which he had with Mr. Maki in April of 1952, he had taken no steps and had done nothing to obtain travel documents. He gave as a reason for this failure that it was his impression as a result of his interview with Mr. Maki in April that the government was taking care of the matter and that if the government wished anything further from him, he would be so informed. Petitioner had in fact informed his counsel of his interview with Mr. Maki and he had been advised by his counsel that there was nothing further for him to do until he received further advice from the immigration authorities. The petitioner at this time, February 12, again stated that he was willing to cooperate, do anything necessary to obtain a passport and depart to Finland and he would do anything the Attorney General wished him to do. He did say that if the attorney general wished him to depart to some other country, he would wish first to consult with this attorney before stating his position. Even at this late date, February 12th after this interview which, on which the government so heavily relies in showing a failure of the petitioner to carry out his obligation, the question as to what the service wished the petitioner to do is left up in the air. The service officials still did not indicate to the petitioner that they thought he was delinquent in any respect, or that there was anything that they thought he should do at this time. Now this really in substance is the government's case. They have the letter of April 30th, they have his sworn statement of February 12th 1953. They have one other item of evidence and that consisted of the testimony of Mr. Maki who gave his version of the April interview with the petitioner. Maki's version of that April interview, upon which the petitioner stated, gave him the impression that he need do nothing, in all important respects fully corroborated the petitioner. Maki said he didn't recall the details of the interview. He denied when asked whether he had specifically instructed petitioner that he need do nothing on his own until he heard from the service, but this denial of course in no way conflicts with petitioner's statement because petitioner never said that he was specifically told by Maki that he need to do nothing. He stated only that that was impression had gained as a result of the interview and on the basis of Maki's testimony even if we don't credit the petitioner of his own statement, that was the only reasonable impression he could have gotten. Maki did testify that he informed petitioner that the purpose of the interview was to obtain information which will be forwarded to the Chicago office so that it might take the necessary steps to obtain travel documents. Maki acknowledged further that so far as he knew, there was no other method by which petitioner acting on his own could have obtained the necessary documents and there was no question under any version of the interview and Maki himself conceded that he did not tell petitioner that he had to proceed independently of the service to obtain travel documents.
Speaker: Maki, he is the government's only witness?
David Rein: Well they had two other witnesses who testified to really nothing, they had another witness who testified, the officer in charge identified the letter of April 30th which he had sent. They had another witness who is the one who took the interview, the sworn statement, a Mr. Bolden who took the sworn statement in the interview of February 12th 1953 which was then introduced in evidence. I mean there were two other witnesses but they testified to nothing of any consequence. And Maki was the only government official who spoke to the petitioner between the time of his deportation and the time of the February 12th 1953 interview. There was no other contact between him and the service except for the letter of April 30, which was sent to him. In other words there was no other conversation between the petitioner and any other official of the service other than Mr. Maki. So I say that there weren't other government witness to identify the documents so that this really is the government's case.
William J. Brennan, Jr.: Does this all add in the -- you raising an issue of the sufficiency of the government's case you are in the jury is that it?
David Rein: That's correct, I said the government will now get to it, government did not prove either the failure to apply for the travel documents and certainly did not prove whatever failure that might have been was local. Your Honor certainly to be local the petitioner must have had some knowledge of what was required and that -- I think on the basis of these facts the petitioner then only, the only reasonable thing to do, he took the government at its word, when they said they were taking care of the matter, when they sent him a letter saying arrangements to effect you deportation of being made we will notify you when and where to report, he took them at their word and waited to hear from them.
William J. Brennan, Jr.: Was there a motion for acquittal at the closing?
David Rein: Yes there was a motion for the judgment of acquittal?
William J. Brennan, Jr.: Did he take the stand himself?
David Rein: No he did not.
William J. Brennan, Jr.: Is that all that there is in the case, the government's case?
David Rein: That's right. There is no evidence presented on behalf of the defendant at all. He did not take the stand or did he present any evidence so that's the government's case, a complete picture to conquest. I should say this with regard to Mr. Maki's testimony and one real item that the government attempts to make something out it, out of. Mr. Maki in response to a leading question said that he did not make any statements to petitioner that would give petitioner the impression that he should wait until he heard from the service. We argue that that does not help the government at all because this was simply an inadmissible erroneous opinion characterization of the clear meaning of his words. The impression that petitioner could or would have gotten from his interview with Maki should be gotten from what Mr. Maki told him, not from Mr. Maki's characterization of what he told him, should not have given him that impression. I'd say short of that piece of evidence the government has nothing to indicate that --
Speaker: Petitioner was tried before a jury, wasn't he?
David Rein: Yes, he was tried for a jury. To change our argument as I have indicated earlier the government, the petitioner here was convicted on two counts; one is failure to depart from the country, two a failure to apply for travel documents. However, as indicated by the instructions of the court and by the evidence both counts rest entirely on the government's position that there was a failure to apply to travel documents. I wanted to deal with it later with the fact that that in itself was an invalid position but I want to address myself now to the insufficiency of the evidence to show a failure to apply for travel documents. The indictment and the language of the statute charged the petitioner failed, “To make timely application in good faith for travel or other documents necessary to his departure.” The statute does not require an application in any way or indicate to whom the application must be made. The petitioner here did in fact make an application for travel documents within the meaning of the statute. He did fill out this passport data for alien deportees, which was a form supplied by the service and regularly used by the service to obtain travel documents for aliens under orders of deportation. If moreover was told that the documents would be used for that purpose and the evidence in this record as indicated by Mr. Maki's testimony shows that the government had in the past obtained travel documents on the basis of just such a form and indeed as I've already indicated, Mr. Maki indicated he didn't know of any other procedure for obtaining travel documents. The validity of this particular section of this statute was before this Court in Spector, at which time this Court sustained that provision of the statute against the charge that it was too vague, it would be impossible. But as I read Spector, we read Spector, it did it only on the ground and it could only upon the ground that in any particular case the passport visa requirements of a particular country were ascertainable, and that evidence would be shown in any particular case as to what was required. The government apparently assumes that the application which the alien here made to the service was not a proper application for travel documents, it was insufficient to satisfy the statute, but there is no evidence here to support such an assumption. There is no evidence here, the government introduced no evidence to show what would have been a proper application or what it apparently maintains or contends that the petitioner should have done in the way of making an application for travel documents. Thus on this record, petitioner was convicted for failing to take some undefined action, which was not shown to be the necessary, useful or appropriate for the obtaining of travel documents, but he did apply for travel documents which was the normal channel for such application through the service, and although it does not appear that any other application was needed or would have even been useful. In Spector, which I have indicated earlier, the Court sustained this provision of the statute against the charge of vagueness, the Court said, the statute might well be a trap, if for example if required the alien to know the visa requirements for one or more countries. I would say that the government's view of the statute, which it takes here and which says that petitioner could be guilty of a crime without defining exactly what it was he failed to do, would so convert the statute into a trap.
Speaker: Excuse me, is that Exhibit 9 printed in the record the --
David Rein: The passport form? I have a record reference to 127.
Speaker: 127?
David Rein: I don't know if it's printed there or if it's just --
Speaker: (Inaudible)
David Rein: No, the exhibit is not actually printed in the record, but here in the office it's part of the record here and it's been furnished to the Court. The government does concede, I wish now to turn to what the government does concede is a necessary element in this crime, but even if there was evidence that the petitioner had failed to apply for travel documents within the meaning of the statute that as I say under the government's concession, the petitioner would not be guilty unless that failure was a willful failure. That it was incumbent upon the government to prove that the petitioner's failure to take action was in-spite of his knowledge of what was required of him and with the intent of completing his obligation under the statute. In other words, because of the presence of the word willful in the statute, as a matter of fact under the doctrine of this Court in Morris Act we have to prove not only his failure to do something, but we have to prove his criminal intent. Now the evidence to support a finding of willfulness in this case, is not only total lacking, but on the contrary all of the evidence that there is here shows not only that the government did not prove willfulness, but it completely negates any possibility of willfulness. First there was petitioner's statement which was introduced by the government. Now that clearly negates willfulness. He explained his failure to take any action by the impression he obtained from the interview with Maki, that he need do nothing until he heard from the service. He indicated he checked with his counsel. His counsel told him that he need do nothing until he heard from the service. The government concedes that if that statement is taken on its face, that it does establish the petitioner's innocence. In other words if the facts as stated by the petitioner there were true, that was indeed his honest impression, the government concedes that a judgment of acquittal must have been entered. It argues however, that the jury could have disbelieved the petitioner's assertion of good faith on the basis of other evidence in the record, but as I have indicated earlier in my statement in that case, there is no other evidence that conflicts with petitioner's assertion of good faith. On the contrary all of the other evidence corroborates it. Now I'll go so far as to say quite apart from the petitioner's statement, as to why he took no action because he was relying on Mr. Maki, but even the evidence aside from that proves his good faith and what is this evidence? One, there is Maki's version of the interview with petitioner. I've already gone over that to show that it's fully collaborating the petitioner and he told him that he was going to use this form, it was going to be sent to Chicago, and he did not say to him that he need do anything on his own; secondly, the letter of April 3rd. Now the government makes the point in that letter, in which it says that, sure they did have this paragraph which I have italicized, in which it said arrangements to effect your deportation are being made and we will let you know when and where to present yourself for deportation. But says the government, the letter then did go on to set out the text of the statute and presumably according to the government, the petitioner should have read the text of the statute as nullifying the flat statement of the government, saying that they were taking care of the matter and they would let him know when they wished him to do something. Now I submit the text of the statute does not indicate to me, does not indicate to this Court in Spector and cannot possibly indicate to anyone, that there is a requirement, an unequivocal plain requirement on the petitioner to do something independently of his own. If they had sent him the text of the statute alone it would not have given him that notice, but to argue as the government does that he should read from the text of that statute, that nullification as clear language by the government, that they were taking care of the matter and he could wait until he heard from them, I say is simple nonsense. As a matter of fact, if the government had the burden of proof (Inaudible), even if we wind up with the conclusion that there was an ambiguity or confusion, then the petitioner here was innocent, because even if he failed to do something because he was confused, he is entitled to a judgment of acquittal.
Speaker: (Inaudible)
David Rein: It's mimeograph form, yes, presumably sent to all aliens in a similar position as the petitioner. In the absence of any evidence to prove willfulness, the government relies on the curios argument that the petitioner was mature and literate man and should not have misunderstood the service. But as I have indicated, I think on the basis of these facts, there really was no misunderstanding. He did what the service asked him to do, he gave the information, he took the service at their word. The real confusion if there is any in this case, is exactly what it was that the service was up to and why they not follow out the usual procedure, why they didn't process the documents and why after having mislead the petitioner in believing that he could rely up on their records to obtain travel documents, they then pounced up on him and brought this indictment. Now in its --
Earl Warren: Is this a common prosecution or is it a --
David Rein: All I know (Inaudible) one of them to my knowledge, that's all I know of.
Earl Warren: In the entire country?
David Rein: It was not in appeal.
Earl Warren: For the entire country?
David Rein: That's all I know of Your Honor. There was an indictment in Spector which came up before this Court, but the government has never proceeded to take that case to trail, even after this Court sustained the indictment that we've gone through. I've heard of one other prosecution which was not appealed, so far as I know this has been the only other case under this statute.
Speaker: Was there any evidence in this case that this man had tried to conceal himself or (Inaudible)
David Rein: No, as a matter of fact he was there when they went to see him in April, he was there when they went to see him on February 12, 1953 and he has been readily available at all times. No contention. I do want to deal with one aspect of this case, which the government I think tries to rely on in appeal although at the trial, no emphasis was placed upon it all. The petitioner, although a native of Finland, had been a citizen of Canada before he came to the United States and there was some question at the time as to whether or not he might be able to go into Canada. Now as I've indicated earlier, the statute gives him an absolute statutory right to pick the country of his choice and under the statute he must be deported to that country unless and until that country refuses to accept him, and there was no refusal here by Finland to accept him. The government attempts in its brief to say that in any event the petitioner could have gone to Canada during this period. Now obviously this makes no sense because he would have needed travel document to go to Canada, the same way he needed to go to Finland. It's indicated by the opinion in Spector, the statute when it says to depart from the country means to lawfully depart in accordance with the regulations of this country and the other country, and you would have had the same problem if he was still waiting to hear from the service.
William J. Brennan, Jr.: (Inaudible)
David Rein: Of the statute in question, parole, supervisory parole, yes he was.
William J. Brennan, Jr.: (Inaudible)
David Rein: Well I don't know. I'm just saying that speculating as to the fact that this apparently was the citizen of Canada, he could have gone to Canada, but he couldn't go to Canada anymore than he could go to Finland until he had the permission of Canada to enter, and so he could not go into Canada. He would be in the same position vis-à-vis Canada as he was in Finland, but he was waiting to hear from the service as to what further he should do. I make the added point that he could not be compelled to go to Canada under this statute unless Finland had first turned him down and Finland had not turned him down. One other aspect of this deals with the instructions of this case. Even if we assume for the moment that the government did prove a case on the failure to apply for documents and did prove the case on willfulness, certainly the instructions which the Court gave the jury here were totally inadequate to support any conviction. The government concedes that the factual issue for the jury to decide was whether the petitioner's failure to take any action subsequent to his interview with Mr. Maki was due to his honest belief that the matter was in the hands of the government, but whether the failure was done with the knowledge by the petitioner that he was obliged to take some independent action and in total disregard of that obligation. Now that could have been the only real factual issue present to the jury, but the jury was never informed in any manner, shape or form that, that was the issue before it. Consequently --
William J. Brennan, Jr.: There were exceptions taken to the charge?
David Rein: I don't know that a specific exception was taken to that charge. Other instructions were given which were rejected, but I would say this Your Honor, that under that decisions of this Court, where there is a conviction in which a charge is so completely inadequate to define guilt or innocence in all, this Court has held that that's reversible error.
William J. Brennan, Jr.: Plain error you mean?
David Rein: Well, it should plain error, but it's so clearly error where the jury is given absolutely no guide and is not even informed of the nature of the crime, but I think this failure in the instructions in this particular case falls in that type of a category. In addition to that, the Court eliminated by its instruction the requirement to (Inaudible) and that he did affirmatively, not negatively. We have set out briefly in our reply brief at page seven, some of the language used by this Court, some of these leading questions as to the meaning of the word willful in the statute and what it means in terms of criminal intent. The leading case on that is Felton against United States in which this Court said that doing or omitting to do a thing knowingly and wilfully implies not only a knowledge of the trend, but it's determination with a bad intent do it or omit to do it. Now this is what the Court told the jury.
Felix Frankfurter: Do you think that's the universal rule, do you in criminal cases?
David Rein: (Inaudible) certainly with the word willful is broad in the statute. I think it's been definitely followed by this Court --
Felix Frankfurter: What is this that last phrase what intent? Evil what is it all that moralistic language?
David Rein: Courts consistently adhere to the rule.
Felix Frankfurter: Consistent is a big word in this field.
David Rein: What is the language?
Felix Frankfurter: What is this last phrase?
David Rein: With a bad intent to do it or omit to do it. Perhaps the Court has used some other phraseology --
Felix Frankfurter: It relates -- it varies with statutes. I think the one generalization you can make is that you can't make a generalization about this statute (Inaudible)
David Rein: But this Court has been generalization.
Felix Frankfurter: It has.
David Rein: In cases which I have set forth, and I don't know of any case in which it is not.
Felix Frankfurter: And you swear that to being the big generalization and eat him away.
David Rein: Well, in any event, let's look at what the Court did tell the jury here. He told them, and I'm reading now from page 32 of my brief, he told them that the petitioner can't remain idle. He must take the necessary steps to affect his departure from this country within that period of six months and if he fails to do so, he has violated the law and the statute involved in this case. He has also told them that wrongful acts knowingly or intentionally committed can be neither justified nor excused on the ground of innocent intent.
Felix Frankfurter: That's very illuminating, isn't it?
David Rein: Well, it indicates -- I think the clear meaning of that is in this context, in this case, particularly in view of the instructions given by the court to the jury, for further instruction, and it was not the government's duty to deport the witness, the petitioner, but his own duty, and once he has failed in that duty, and he was no longer -- had not departed from the country, he was guilty regardless of the circumstance and regardless of his intent.
Felix Frankfurter: I was hoping to help you by suggesting it wasn't clear.
David Rein: Well I say it was clear. Imagine that even though the jury found that he had failed to take action, because he honestly relied upon his belief that the government was taking care of the matter he was still guilty, that is the clear import, that instruction and the top of instructions given by the Court to that jury. I say it was unambiguous in that respect, perhaps if there had been some confusion the jury might have acquitted. But in effect –
Felix Frankfurter: I didn't think if a charge was ambiguous that's pretty bad.
David Rein: Well this far worse when it is very, very clear that on a set of facts, which would warrant a judgment of acquittal, the jury is told you should convict on that set of facts. I think that's even far more or far worse than an ambiguous construction. I wish now to turn to one another point before I reach the question of the constitutionality of the statute, in the remaining time left, and that is as I've indicated earlier, the petitioner was convicted both of a failure to depart and a failure to apply for travel documents. That on evidence and on instructions by the Court, that the gist of the failure to depart offence consistent of his failure to apply for travel documents.
William J. Brennan, Jr.: Before you get to that, may I ask one thing?
David Rein: Sure.
William J. Brennan, Jr.: There was -- part of this charge which reads there is no duty on the part of the government to assist the defendant affecting his departure. The government will if requested assistance, but the duty evolves upon the defendant to comply with that order of deportation, and I know this that an express exception was taken to that charge.
David Rein: That's correct.
William J. Brennan, Jr.: But you are not making a point on your brief or on your argument, are you that, that was --
David Rein: Yes I am.
William J. Brennan, Jr.: An improper charge?
David Rein: Yes.
William J. Brennan, Jr.: That independently and not as bearing on the issue of his willfulness or the sufficiency of the evidence, but just as an incorrect charge in law?
David Rein: Well no, I am saying that it's an incorrect charge. I say that it makes no difference as a matter of law here and I'm not pressing the point as to whether the duty is on the government or on petitioner? I say it's an incorrect charge to give the jury in this particular case where the issue is whether he has willfully failed.
William J. Brennan, Jr.: That's what I wanted to get clear.
David Rein: Yes, I am making the appointment that there is -- the charge, that there is an absolute duty upon him and that he is not entitled to rely upon the government or the government office assistance is an incorrect statement.
William J. Brennan, Jr.: Yes but not independent of that issue, are you challenging the sufficiency of this structure?
David Rein: I am making no point to the sufficiency of that, independent as the appellant relates on the question of willfulness. As I say under the instructions and under the evidence, he was convicted of the offense of failure to depart solely upon evidence, which approved anything. It only proved a failure to apply for travel documents. We contend that these two crimes are not identical and that one cannot be convicted of a failure to depart where that value is due solely and entirely to a failure to apply to travel documents. Now the government tries to turn our contention around their brief to say that we are arguing that an individual cannot be guilty of both offenses in the same prosecution. I want to make it clear that that is not our contention, but we say that since the crimes are not identical, one cannot make out a failure to depart solely by showing a failure to apply for travel documents. One must also show something in addition and that may be either that despite his failure to apply to travel documents, travel documents were obtained and he still failed to depart, or that one reason or another he could have departed without obtaining any travel documents. Both those elements are absent in this case. As we show in our brief --
Hugo L. Black: Is there any proof here on which the court could have found that had he applied, he would have bound to go? I understand you say that they mount on the fact that he didn't apply the travel document that he willfully refused to depart.
David Rein: That's correct.
Hugo L. Black: Is there any proof here or anything which it did infer that if he had applied, it was inevitable that he would have gone?
David Rein: That he would have gone?
Hugo L. Black: That he could have gone?
David Rein: He could have --
Hugo L. Black: Did the government offer any proof to show that he could have got, that he could have --
David Rein: No. The government presented no claim --
Hugo L. Black: You claim they had enough evidence to show maybe that he didn't apply, that he didn't apply --
David Rein: I say --
Hugo L. Black: -- but that it's not enough to show that he willfully failed to depart.
David Rein: That's correct.
Hugo L. Black: I presume your arguing that attempt to filing would not merely be an application but again it is sort of --
David Rein: That's correct.
Hugo L. Black: -- failure to concern.
David Rein: He would actually have to have -- before the crime of failure to depart came about, he would actually have to have travel documents. Now that principle of not multiplying offenses making two offenses, two crimes out of one offense, there is a line with the canons of interpretation which this Court has set out. We have set them out briefly on page 25 to 27. I think that I don't want to go into it any greater detail here and I think it's fully and adequately covered in our brief, the general principle and we have a number of grounds to that general principle as to why we do not normally make two offenses out of one. And in addition to that, it seems to me the government's position would conflict with the Fifth Amendment's probation against double jeopardy. On this particular point in issue there is no legislative history to indicate the congressional intent and that is contrary to the government's assertion. The government in their brief cite some legislative history which they say indicates that Congress desired to make two offenses out of the failure to apply for travel documents. We wish to comment only that the legislative history which they cite is not upon the statute which was passed but upon some previous proposals which were rejected by Congress and which had no reference whatsoever the question out of crime by virtue of a failure to apply for travel documents. We submit therefore that in the absence of any legislative history illuminating of any kind or character the court should follow its usual canons of interpretation and limit the failure to apply for travel documents evidenced to failure to apply for travel documents as being evidenced only of that offense and not of the offense of failure to depart and under that construction, certainly that -- there would be no proof of a failure to depart in any event.
Speaker: That's failure to depart?
David Rein: That's correct. He was sentenced on the failure to depart. That would mean necessary to reverse because of the fact that --
Speaker: (Inaudible)
David Rein: Well except Your Honor I would say that the case does come to posture in which there is a finding of guilty on the other count and if there is, as we contend quickly insufficient evidence to show a -- to support the conviction on the other count I do think that it would not be helpful at this stage to send it back for a possible sentence on that count and let it come all the way back up here.
Speaker: (Inaudible)
David Rein: Oh yes.
Speaker: (Inaudible)
David Rein: Well I thought you weren't -- yes if all the other points were filed against this, he would still be entitled to reversal on that point alone, and re-sentence
William J. Brennan, Jr.: Well there is no sentence at all in the second count, is there?
David Rein: That's correct. There has been no sentence at all. The court deferred the imposition of the sentence until completion of the sentence.
William J. Brennan, Jr.: But there is a judgment of conviction before us on that second count?
David Rein: Yes there is a judgment of conviction and I think under the (Inaudible) case that is before Your Honors to review even though no sentencing was reversed. I think it was (Inaudible) and I think this Court cited on that. Turning to how -- my remaining time to the question of the constitutionality of the statute, the deportation order on which this proceeding is based was issued against the petitioner as a result of an administrative proceeding before the service. In the first trial, I should indicate at this stage Your Honor that this conviction which is coming up here as a result of a second trial on this indictment, the first trial was reversed by the Court of Appeals for the Seventh Circuit because the validity of that deportation order was not considered at all in the trial. In the second trial in which our present appeal was taken the trial judge reviewed the record of the deportation procedure. He made a finding on the basis of his review of the record that there was evidence to support the findings of the immigration officials and that the deportation order was valid. He ruled, however, that the validity of the order or of the facts underlined -- underlying facts justifying the order was not a jury issue and that would not be determined by the jury. We contend that the statute is unconstitutional on its face as applied. We relied principally for this argument on the dissenting opinion of Justice Jackson in the Spector case and on his reasoning there. I should note although I call it a dissent, it is not a dissent from majority views in that case because the majority in that case said with regard to the aspect of the case covered by Justice Jackson's opinion, the case did not reach the issue since it had not been briefed and argued before them and they were not going to consider it. So the view point is presented although a dissent, majority has not spoken upon the matter. It was left open specifically in Spector -- it was stated to be an open question for consideration by this Court at an appropriate time.
Speaker: (Inaudible)
David Rein: That's correct, whether the statute was valid on its face because as Justice Jackson put it, the statute in effect split up two elements of the crime, that there were two essential elements of the crime; one was the deportability of the alien and the second the willful failure to leave the country or to apply for travel documents. And that the first of these elements was submitted to an administrative proceeding, thus avoiding the constitutional guarantees for the trial of this portion of the crime. We have set out, and I want to make only very brief reference to it, the number of constitutional guarantees which would be available in a criminal trial, which is denied in an administrative proceeding on a deportation. They are briefly the right to trial by jury, the right not to be prosecuted against except by indictment, the right against double jeopardy, the right guaranteed by the Sixth Amendment to be confronted with witnesses, the right in accused failure to testify is not evidence of guilt guarantee by the Fifth Amendment, the right not to be tried by your accuser, and that your guilt must be proven beyond a reasonable doubt. Now all of these elements are not present in an administrative proceeding. The government latches on to one phrase in Justice Jackson's opinion. Mr. Jackson and at time of the Spector case had said in his opinion that the deportation order would be conclusive in the trial proceedings. The government says that therefore apparently Justice Jackson's objection was met, because here, the validity was not conclusive because the trial court made an independent review. We submit as a matter of fact, that Justice Jackson's reading of the statute is probably the correct one. There is nothing in the statute which justified what the trial court did here in making its own independent review, because the statute only refers to an outstanding deportation order. But even assuming that the statute can be so interpreted in order to save constitutionality, it does not meet the real basis of the objections made in the Spector case, because even if the matter is reviewed by the Court, we still have the problem as put by Justice Jackson, the adjudication that an alien has been guilty of conduct subjecting him to deportation is not made by procedures constitutional or judgment of crime. And even where there is review all that the judge reviews is that there is some evidence to support it, that there has not been a violation of some regulation. It does not, therefore substitute or give him the right that you would have in a criminal case of trial by jury.
William J. Brennan, Jr.: Well there is an argument that, this if so would be true only if the statute involved here was invoked by the government to secure indictment for the failure of its part and so forth?
David Rein: Yes --
William J. Brennan, Jr.: Only in respect to the --
David Rein: It's made only in respect to the statute.
William J. Brennan, Jr.: Now generally that an administrative determination of affordability --
David Rein: It's perfectly (Inaudible). As a matter of fact that's just the point made in the dissent of Justice Jackson's opinion, that all of this procedure and this lack of procedure and differences between the administrative procedure and the criminal procedure, that we have sustained that, speaking of the Court throughout its history has sustained that in deportation procedures, on the government's continued insistence that a deportation proceeding is a purely civil matter, with absolutely no criminal consequences, and that is the reason why you have sustained it and sustained the validity of that procedure to support a deportation order. But when that deportation order is made to carry consequences, as it is here, resulting in an imprisonment of five years, then that procedure falls because the deportation order is now not purely civil in its aspect, but its criminal, because of the factors being employed criminal, no tax is being made on validity audit as an order, standing by itself.
Speaker: That means does it -- it's kind of a case you would have a trial do novo before the jury as to the grounds, the original grounds of deportation.
David Rein: That's correct. That would be the only way to sustain it as constitutional.
Felix Frankfurter: Mr. Rein I don't have to tell you that I have a good deal of -- I have more than sympathies for that --
David Rein: You've joined in the opinion Your Honor.
Felix Frankfurter: Dissent of Mr. Justice Jackson, by I like to have a constitutional question thoroughly argued instead of resting on a dissenting opinion, and I'm surprised that neither you nor the government make any reference either to Union Bridge or Monongahela in 216 in which that problem was reconsidered on a rehearing and thoroughly canvassed. This business of just pulling out a dissent opinion, and I'm thinking that's all you have to do isn't very helpful towards the determination of a statute which has stood all these years and I suggest you consider both of you, Union Bridge Company in 214, and Monongahela in 216, which on principal is decisive as kind of a situation, namely that's where the Secretary of War made a declaration and there was disobedience, criminal prosecution for disobedience, and the question was whether the administrative determination was conclusive in the criminal trial.
David Rein: I can only say Your Honor that I'm delinquent in that respect, I'm not aware of the cases and I didn't want to rely on it.
Felix Frankfurter: One doesn't get cases out of the sky, one has to look for them.
David Rein: Well that in the remaining time and if the Court pleases, in the light of Justice Frankfurter's suggestion if the Court wishes, I'll be glad to examine those cases.
William J. Brennan, Jr.: Did you discuss the Cox case?
David Rein: We discussed Cox and Yakus, yes and I would like to ask in view of Justice Frankfurter's comments and ask leave of the Court to file a brief memorandum on the significance of the cases decided by Justice Frankfurter if I may?
Felix Frankfurter: I'm not saying those are the only ones, but those that happen to be in my head, and this is a very serious question.
David Rein: I agree with you.
Felix Frankfurter: One was well aware of it when he joined in the dissent.
David Rein: The distinction made, if I may turn to question of the Yakus case, or between this case and the Yakus case, is that the Yakus case was an administrative regulatory procedure setting out standards of conduct to guide people in the future, in contrast to the nature of a deportation order which is an adjudication of guilt in a particular case against a particular individual, and it is not a general regulatory matter. As a matter of fact this is significant, I think this point should be made clear, that this statute, that is this self deportation statute does not apply to any order of the deportation, it applies only to orders of deportation based upon certain grounds, and those grounds are grounds which apparently the Congress had some guilt attached to that, because they referred to some persons, criminals. This particular alien here was ordered deported on two grounds, one his entry into this country without a visa as well as his past membership in a Communist Party. The order of deportation so far as it rests on the first ground would not be a basis for application of the statute here. So that the very conduct of deportation, this very cause underlying the deportation is part and parcel of the crime in this particular case, and it's because of that the procedure adopted here of eliminating that portion of the crime, in the consideration of the jury runs into constitutional grounds.
Speaker: What do you do with the Cox case?
David Rein: We argue that the Cox case, really in this respect can prove and prove on my brief at all, the Cox case is unlike Yakus, in the sense that it is not a general regulatory procedure. But that case we say where you have an administrative classification for draft purposes is very different from a determination that an individual is guilty of some past misconduct. You had in Cox, an application by an individual to be exempt from a rule that applies in general to all people, and the determination made there by the Selective Service boards is not a finding of guilt, but simply that a person is not entitled to an exceptional privilege, and we here say as a matter of fact, the whole procedure which is employed in the Cox statute, seem to indicate by this Court's opinion also in the Nugent case show that was a type of procedure in which this Court thought because of the exigencies of the situation that the individual was entitled to very low in the nature of due process and as I said, that also underlie the aspect of the Nugent case. I would say that Cox a very special case limited it to the fact that here is an individual who is asking for a special privilege from an obligation imposed upon all citizens in the service, is not the same that's involved in this type of case where there is finding of guilt. I would like to indicate just one other portion of argument on constitutionality dealing with the nature of the cause for deportation that that is covered in our brief, my time has expired.
Earl Warren: Mr. Bishop.
J. F. Bishop: I would like to say one word about Monongahela before I go into the argument. There is a delicate question of the extent to which we should pledge in the Court with all of the authorities that Monongahela case was back in 216 US 177, I'm not excusing and explaining if I may.
Felix Frankfurter: At what day -- the case is no longer respected.
J. F. Bishop: That is not what I am getting at, what I am saying is that there were recent cases that followed the same line, we cited the most recent ones, the ones that had been cited by for comparison by Mr. Justice Douglas in the case of Spector and of course that doesn't absolve us, but we are always confronted with a problem of making a brief of unwieldy length and I apologize for not having thrown that in.
Felix Frankfurter: This is how – I'm a believer of venial offense but the Monongahela case is case especially important because there the Court was asked in one of the most powerful briefs, in my recollection, in one of the most powerful arguments to reconsider a decision that it had taken several years before.
J. F. Bishop: I think a very --
Felix Frankfurter: Exhibit some of the considerations with which as I have indicated I sympathize or urge there and reject it. So that case seems to me of a special reason --
J. F. Bishop: I think it's of great help to the government and I also -- we have not cited Wadley Southern Railways versus Georgia 235 US 561 and -- which we think is very significant. We did not cite East (Inaudible) or accumulate all of the decisions that have been based on --
Felix Frankfurter: I have looked at your brief except the index to find out whether you cited, does the government set forth --because when it comes to the responsibility of actually declaring something unconstitutional, I for one like to get an implication, the implication of such definition. Has the government cited the statute that would be -- that would equally have to fall if this argument prevails? I should think there must be --
J. F. Bishop: We have indicated --
Felix Frankfurter: I shall think there must be.
J. F. Bishop: We have given examples --
Felix Frankfurter: Numerous statutes in which an administrative determination has made the basis of an indictment for disobedience.
J. F. Bishop: We have cited those in the footnote to our brief. As additional examples we cited of course what we conceive to be the most pertinent that is the hundreds of thousands of men that were given the draft classifications and the numerous cases of which many of them before this Court in which they have been indicted.
Felix Frankfurter: I mean merely volume of -- the number of persons affected, but the body of legislation if there be a body that presents this very serious problem namely to what extent can you administratively predetermine an element of the criminal case?
J. F. Bishop: We, as I said we have cited some examples of that in the Federal Communications Commission, Civil Aeronautics Board, we also cited even a further field without belaboring the point we cited Maki in the bankruptcy field in which there is very pertinent language by Mr. Justice Frankfurter I believe of the dangers of retrying every administrative determination by the --.
Felix Frankfurter: (Inaudible) controlling would mean than anybody else in this case?
J. F. Bishop: No, I am stating that the examples that we did give and that is not only the administrative area, it is a terrific field and we thought that the thing had been very well decided more recently -- very well. Now this case has so many issues as to which various states of facts are pertinent that I am afraid that it will be necessary to summarize first what the government says rather than leaving to its presentation before as to what we contend and secondly to give some run down on these facts and their order. We think it's very important that when a certain interview happened, when a certain notice was served and I am going to try the rather difficult thing of at least presenting this whole picture so that we have the order because after all this is a very important request that this Court should go over a cold record and disbelieve the witnesses that the jury patently believed, get the impression that the instructions were not adequate without any view of the entirety of those instructions and without any view also on the facts that were in the case, so I am -- if I may I would like to give the chronology as quickly as possible with the, with two caveats to the court. One I expect to support everyone one of those items on the evidence point by going directly to the record later after I finish this brief summary and secondly the Court should have in mind that since there are some other questions that is the attack on the deportation proceedings, the innuendo that the government is holding out things and is entrapping him and the complaint that the judge shouldn't have sentenced this man severely, that the facts -- that other certain facts that were before the judge and were not before the jury are going to have to be told in this chronology. I want to warn the Court that when I get to discussing the evidence before the jury, then I will restrict myself to the evidence before the jury, but in this summary relating to these other questions at the outset, the facts up to the trial are in exhibits one and two that are lodged with this Court and did not go to the jury because this judge was scrupulously careful to keep from the jury, all the troublesome things that had been adduced to him in the assault on the deportation proceedings. He kept even the Board of Immigration Appeals' opinion from the jury and only allowed to be read in the facts that they had decided against petitioner and not the reasons. So in this chronology if the Court would bear with me, when I get to the evidence, I am going to be very careful of what was before the jury, that I don't want to misrepresent to the court within these earlier things. There is -- all of this went to the judge. Now petitioner was born in 1890. He came to Canada in 1910 and he became a Canadian citizen. He has been a Canadian citizen for anything that appears on the record all of the time, since that time and through the six months period that's critical in this criminal indictment and let me interrupt myself this is -- this evidence was before the jury as well as all the other cases. He has been a Canadian citizen for over 40 years. He came to the United States in 1916 and that entry was a legal entry, probably the last legal entry. He joined the Communist Party in 1922 or '23. There is a dispute about it, but there is no dispute that he was in it until 1930. The Court of Appeals below found that he had been Communist Party member after that. He went to Russia in 1932 without travel documents. He stayed there for three years in the Soviet Union. He came back in 1935 also got in without travel documents. Then in 19 -- I should say also that for 15 years he was editor of a newspaper, a Finnish language newspaper. Now, in 1949 the government began the process of trying to deport him. At that time there were two grounds, one because when he came back from Russia he came out -- came in without the proper documents. Two as a member of a subversive organization, and that was changed after the 1950 act, to the specific designation of the Communist Party membership. Now the length of time in which these proceedings were delayed I don't want the court to get an impression of any improper delay there, because it was -- the petitioner was entitled of course to pursue every remedy, but all things do come to an end that he was properly ordered deported in April 9 of 1952, that is one of the Board of Immigration Appeals finally included these deportation proceedings, after many -- after appeals to that board and the matter was completed. Then I would like to fix that date by repetition. We are now in 1952 and we are beginning that six months period in which the statute required that he do something. Now we will look at that statute, which was passed in 1950. That statute provided a penalty if the alien did not depart, if the alien did not get travel documents and three, not indicted here, but of significant contrast, if he connived to hamper the getting of documents for it, and four the completely differentiated thing, if he failed to show up when the Attorney General ordered him to show up for deportation. That's the statute and the statute of course is presented fully in our brief here and elsewhere. Well -- and the Court of Appeals below summarize in its opinion those four aspects of it, so that there is no doubt and I don't know that the petitioner has blankly stated that there is any doubt. I may explain about that statute, that it arose on legislative history, not concerning the separation of offences as has been stated to the Court, but to meet the single problem that there were hoards of aliens left in this country who just couldn't be deported and the legislative history that we have cited in our brief was the testimony before the Congress, before prior legislation which did become this legislation only with a more severe criminal penalty indeed. There was testimony that aliens whom the government could not deport by itself applying for papers, could get out when they chose to do so, the then Attorney General, now of this Court testifies as to nine specific cases in which that had happened, that is also cited in our brief and that is what is the object of this statute. So that in a sense the inquiry as to what the government did or did not do concurrently is not significant. Now, as to that statute let me state something else, we do not state, nor has there been any confusion whatsoever that the government could go ahead concurrently and as an ordinary matter, it did do so. It did not trust either the integrity or the competence of some of these aliens to get going. While this statute was specifically designed as reported from the congressional record to give an incentive to these aliens to do something themselves, nevertheless the government was not required to wait for them to do something. So that, I want to make it clear, we do not contend here that the government can't do anything or that the government doesn't do anything.
William J. Brennan, Jr.: Well what is the practice, is there any --?
J. F. Bishop: The ordinary practice as of this date --
William J. Brennan, Jr.: May I ask further before you get to that, I gather that this obligation part is only those who are deported for certain reasons, isn't it?
J. F. Bishop: That is correct and that is not challenged here. He was of the group that was designated, except there is a statutory ploy question which I will try to reach later, in which they contend that under the language of this statute, he was not of that group, I don't want --
William J. Brennan, Jr.: Well assuming he was for the purpose of my --
J. F. Bishop: Let us assume that for this and our brief is very clear on that point.
William J. Brennan, Jr.: Well for the purpose of my question, just what is that the service does in these case, where there is an obligation?
J. F. Bishop: I will answer that in two ways, one on what was before the jury, in the record and then I will go further than that, if the Court wishes. There was definite and uncontested evidence by the immigration inspector that the government ordinarily tries to get the man out even while he is making his concurrent efforts, but there was a definite denial that the government does it in all cases and for that purpose, let me explain something about this form without reaching it yet. This data form Exhibit 9, I better refer to it that way, that the inspector goes out right after the deportation order and gets, is an information form on which the government tries to act, but on the back of that form, I'm sorry this is not reprinted, it is an exhibit, on the back of that form there is a paragraph in which it is asked that the alien disclose whether he has an expired passport, birth certificate and other certificates which has been used by the government. If he disclosed that he had papers already and could get out by himself, in those cases and now I'm speaking off the record, the government does nothing, and I think that those are the cases referred to in the testimony before the jury, where this man vigorously denied, I mean the immigration testimony, vigorously denied that in all cases they do it. Very diligent counsel for petitioner asked his man Maki over and over again, the immigration inspector, doesn't this mean that the government will do something, and he repeatedly said no they will consider it, that's what this form is for; this is not an application form. It was filled out by the immigration inspector, it is not signed, it's a data form, and there is, and I'm quoting the record here, the office in charge stated that this form is sometimes taken by a hearing officer. It is not a matter of application for documents at all, and of course it's differentiated from document because it refers to the documents right within the form asking whether he has it, that there be no confusion of this form, once it's examined. Now does that answer the --
Speaker: (Inaudible)
J. F. Bishop: No, it's just -- the immigration inspector goes out after a deportation order and he tries to find out all of the data about this man. The object of course is for the government's purposes and not for his purposes, so that the government can get going on efforts, if those efforts are necessary.
William J. Brennan, Jr.: Well all this -- of what you've now said, I think adds up for me to this, that what the government does is not going to help him, but rather to be sure that he is out, to effect the congressional intent that he shall be got out of the country within the time limit, either on his own or because the government gives him a push, is that right?
J. F. Bishop: That seems so clear to me and I shall --
William J. Brennan, Jr.: Well, it may seem clear to you, but does it make clear --
J. F. Bishop: That is why -- that is clearly my understanding of it and that --
William J. Brennan, Jr.: Yes, but is that made clear to the deportee?
J. F. Bishop: The deportee is not advised by the immigration service, the immigration service could submit documents if it chose to do so, and request him to sign it under the fourth paragraph of this statute assuredly, but under the first two aspects of this statute, that is his own duty to depart, his own to duty to get going with the documents, the government may or may not assist him, but it does not undertake to advise him and I might state going back to the actual record of this case --
William J. Brennan, Jr.: Well now you said may assist him.
J. F. Bishop: It may assist him assuredly, if he should ask for it, I'm sure it would, but -- and let me point to two things in this record. There is affirmative clear evidence. The officer in charge definitely testified that he presented a Canadian passport, to this man, and that was after the six months period, so that there is no question of expiry. He was still a citizen through this whole six months as far as this record discloses, and he presented no evidence whatsoever that he had been -- had lost his Canadian citizenship until afterwards, and as the records says, a long time after.
Speaker: Well what significance does the Canadian passport have until Finland turned him down?
J. F. Bishop: It would have this. That after six months if he couldn't get into Finland by himself, the statute provides that then Attorney General shall deport him to where it can be gotten. He doesn't a clean bill of health to sit down and do nothing and make the government wait in that.
Speaker: But he has a right, has he not to exert his efforts toward the country of his birth rather than to some other country which is a secondary option.
J. F. Bishop: He does, he does, but I am stating this as evidence of what this particular petitioner was about in the matter of competence and clever heel dragging. The six months went by there is no slightest evidence that he did anything about Finland. And his only excuse which the jury frankly did not buy was that he that he was waiting for the government to do something in spite of the statute, in spite of the notice which I'll get to and in spite of his clear duty. He said that he got the impression from this man who was just set up to get information that now he can sit down and do nothing that's his picture.
Speaker: (Inaudible)
J. F. Bishop: I am tempted to deal with it rather emotionally I will just subside and say this, that I will request the Court in reading this form of notice by the government to read it as it's put in the footnote of the government's brief in its entirety and without italicizing. The jury took this form of notice into the jury room with it. And when it is read without prior emphasis, I think that the jury was well entitled not to rely on just one paragraph of it but recognize that form for what it was, a form that stated a variety of contingencies and what is more particularly, the last paragraph which could not have related to the government. In other words the first paragraph advised him, the government was going to try to act. He needed, he was properly warned of that. Then it stated the statute which showed the four different activities, his own duty to depart, his own duty to get documents, his own duty not to connive to hamper and his own duty, and then his duty not to refuse the documents if the Attorney General should present to it. And then comes the last paragraph of all which if we were italicizing, I would italicize, here is what it says. “Therefore you will recognize the importance of making every effort in good faith.” Let me stop there, if they have been talking about government efforts, they wouldn't have said in good faith, they were talking to him then. “To obtain passport or other travel documents so that you may affect your departure pursuant to the said order of deportation within the time prescribed by the quotation above from the Internal Security Act.” Now of course I know the argument on that and that is that he was a poor ignorant man that couldn't be expected to deduce all of those from this notice. But the answer to it is that this man didn't do anything without checking with his attorney, he had long experience in picking everything possible available to his case. What's that?
Speaker: (Inaudible)
J. F. Bishop: Very much so.
Speaker: (Inaudible)
J. F. Bishop: Yes, yes that is, that is affirmative letter indeed and I am getting ahead of my story a little bit, but let me just say as to this formal notice. When it was read without the italics that have been inserted by a jury which is perhaps better able, the judge what it means to a layman than I as a lawyer or then the trial judge did, that jury happily could have seen whether anyone would be confused by it and I want to add one more thing and then I will get on with the chronology of it.
Earl Warren: Why do you object, why do object to italicizing this, don't you do the same thing in your briefs?
J. F. Bishop: Well in argument --
Earl Warren: In a lot of ways --
J. F. Bishop: In argument yes, in argument yes. Not in the statement of facts. The entire thing is put here. In other words in any denotable --
Earl Warren: I didn't quite understand you when you said you were tempted to treat this thing emotionally, what did you mean by that?
J. F. Bishop: Well I mean that that I feel that that bringing a form of this kind with italicizing in the statement of facts is liable to get a person off on the wrong start in the argument or if it were treated as a summary and then reporting it, well then, then I would say the first time you read that, you can read it in its entirety. But if it's the first time in the statement facts, it confronts you, you are bound to look more at that italicized portion than the exhibit which is reproduced. That is all, I have to say that is all.
Earl Warren: It is all the emotion you have in it?
J. F. Bishop: It is, and I -- I have no intent to say that there was anything intentional because as it was stated in the brief of course that it was italicized, but this is was a statement of facts. All I am arguing is that when the court looks at this, when it is asked to set aside this jury's finding on the whole record that it do so on the document that was before the jury and without prior warning, without prior standing out of this one thing out of a long list, that's all to that moment.
Earl Warren: Mr. Bishop may I just pursue one important step further, don't you believe that if you are deportee or this time that the form was presented to you in circumstance of this kind that you might emphasis a paragraph of this kind where it says arrangements to effect your deportation pursuant to such order, the one that they are talking about here, are being made and when completed you will be notified when and where to present yourself with the petition. Don't you think that might strike a deportee as a rather foreseeable and rather expressing the intent of the government to do something? What would it mean if it didn't mean that?
J. F. Bishop: If -- first of all I can't pose that -- you are asking of course what it would mean to me? The first thing I would do, would be to go to a lawyer and he'd tell me very quickly and I would rely on that, because he would know what that statute is for.
Speaker: (Inaudible)
J. F. Bishop: What's that --
Speaker: (Inaudible)
J. F. Bishop: The second thing that I would do would be to at least enquire and the third thing I question whether my judgment on that is as good as the jury that have had that form before it and was told, and I have countered this in the record 17 times it appears in the record that was before, that was read to this jury that he thought that it meant something else.
Earl Warren: Yes but my instruction --
J. F. Bishop: The jury --
Earl Warren: -- might not -- that instruction that counsel was talking about have something to do with that where the court told him or whether he believed that the government was going to do anything or not that he was still guilty if he didn't, if he didn't take the steps?
J. F. Bishop: I don't believe that in the whole context of the instructions anything of that kind was said. I am going to review those instructions at great length at this time, but I can't pull one word on the instructions when the world ‘willfully' is hammered at the jury as often as it was here. I think that there was no doubt possible for this jury that a number of times it was emphasized in the evidence in petitioners' own words that he had been confused that this jury couldn't size up the man they had before them, very well indeed and better than I could on the whole record, because I didn't see the witness that told about this man. Now this notice of course comes in a chronology and I think I better get back to the order in which that notice appeared so that we'll have that as it appeared also before the jury in evidence. In other words I had gotten to the point where the deportation proceedings had finally resulted in an order of deportation and then the next thing that happened was not being noticed. The next thing that happened was the investigator came out to get data. Now petitioner, enough has been said about what petitioner says he got as an impression, I can only recommend that the court go very carefully to the testimony of this man Maki and also to the testimony of the officer in charge at Duluth, both of whom stated very specifically what -- what this man was to do. He was out there to get information. He was not out there to instruct the deportee as to his duties. He was not out there the least of all with any authority to waive what the Congress have enacted to, where the Congress had said it's your duty -- for him to go out and say well it's your duty until the -- after the government has done something. That wasn't in the statute, that wasn't in the notice. Now the testimony of Maki is very clear and I expect to get to that too if I can just get on to the dates. April 9 was the date of deportation, April 21 this man Maki came to get the information for this sheet and went his way. Petitioner didn't sign anything. He according to Maki, according to the only live testimony before this jury, Maki said nothing of the kind, he got his information and left, he remembered the interview very well. Then on the 30th of April this form notice came out and petitioner was advised of whatever that form meant, but the form as I've stated is in the exhibits left before the jury. It's not something that was in the side proceedings at all. Now, nothing was done by petitioner. There was no inquiry made by petitioner as to what it could mean or as to why the government was so long about speaking to him again about it if he had truly thought the government was getting him some papers, I don't think he would have quite weighed it that happened here, at least that's an item that the jury could well evaluate, especially when all he had to do was pick up the phone and ask about the matter, and --
Earl Warren: Who would he ask?
J. F. Bishop: What's that?
Earl Warren: Who would he ask?
J. F. Bishop: The officer in charge at Duluth.
Earl Warren: The immigration officer?
J. F. Bishop: Yes.
Earl Warren: This man who testified?
J. F. Bishop: No, he would call up the office to find out what was happening. In fact there is affirmative testimony after the six months were over, and the matter began to get a little bit hot and he was being investigated as to why he hadn't done anything then he admitted that he had wondered a little bit about it himself. Well, so much for that six months period, and I think a great deal of light is cast upon what he was thinking about and what he was trying to do by the events immediately after that six months period. Under the law, if he hasn't left in six months, has not been deported by the government in six months, it comes under supervision as this Court knows from other cases. He was called in on October, in October and here we have the testimony of a man Bolton, who was an immigration inspector, who gave him his order of supervision and at that time it was affirmatively brought to his attention the matter of his own efforts to get travel documents and there was a specific clause put in to his supervision order to report his evidence.
Earl Warren: When was that?
J. F. Bishop: That was October 27th, right at the end of this period. Now, if the jury was to believe his protestations of innocence, they could not have lasted beyond that time, and yet he did nothing, from that time on for another quarter of a year. In February, Bolton went out to check up with him and that is when this statement came and then come these excuses, and among other things he was asked was, what he thought that clause was about, as to why he hadn't reported any efforts to get documents, and at that time, he didn't give the -- ask for that one, he didn't state that he had relied on that interview anymore, then he said he must have missed that, and that's in the record too, that went before the jury. So that what the -- what you have is the picture of a man and this is the government's view of it and we submit the jury's view of it, that was dragging his heals as long as he could, and then when he couldn't succeed any longer still did nothing. And here is the critical thing, after that six months period expired, the officer in charge was presented him with a Canadian -- presented a Canadian passport to him, and there is testimony before the jury of the additional documents that would have been required for getting into Canada and you may judge as the jury could judge from that testimony, whether there would have been a deal for him to get into Canada. He did nothing then either. As far as this record is concerned, he was planning to stay as long as he could and that was it. Now I have given a chronology here and I had said that I was going to back it up and now I want to go to the record of what was before this jury, and I think that the proper place to start, I am now exclusively in what was before this jury.
Earl Warren: Mr. Bishop could I interrupt you just once more to ask you how would a man in Duluth go about getting this passport or getting this visa to go back to Finland?
J. F. Bishop: Oh, that is in the record too. That question was posed to, it was asked and the immigration inspector was asked about the processes, while he didn't claim to know that this particular petitioner would have had to do, he would go to the consul or whoever or the lawyer with whom he was in touch in New York, go to the consulate, get the papers and fill them out and try to get in. Now --
Earl Warren: Now wait a minute.
J. F. Bishop: Yes.
Earl Warren: A man living in Duluth, would be obliged to go to New York.
J. F. Bishop: I don't think so. I don't see that, that follows. I don't know whether there is a Finnish consulate in Duluth or a superior, where there are a great number of Finns, but in any event his attorney could have handled it for him or he could have written. There is no great mystery about applying to the consulate to which you are -- if you really sincerely want to go, you ask and get the documents and you fill them out.
Earl Warren: Well apparently there is some mystery so far as the immigration inspector was concerned he didn't how to do it.
J. F. Bishop: I don't think that is true, I said that he --
Earl Warren: I thought you just told us that --
J. F. Bishop: No. He didn't want to commit himself. He didn't state that he had seen any evidence of this man doing anything at the time, but he point to a certificate of identity and the normal documents.
Hugo L. Black: Did he try to get it?
J. F. Bishop: Who?
Hugo L. Black: The immigration authority.
J. F. Bishop: That is not on the record, and the reason it is not on the record is because the question of whether the government could get it is just what this statute was designed to obviate.
Hugo L. Black: Well, was there was an effort made to get in the record?
J. F. Bishop: Do you want me to go off the record? I mean --
Hugo L. Black: Was there an effort made shown by the record to prove what the government did in connection with trying to get this man (Inaudible)?
J. F. Bishop: There is nothing in the record about what the government did, the complaint here is totally of what the petitioner (Inaudible)
Hugo L. Black: Was there any effort made to get any evidence to show what it is?
J. F. Bishop: I know of none, the petitioner didn't put in any testimony. He asked for the government records --
Hugo L. Black: As to what?
J. F. Bishop: -- as to what the government did and that's what I've used as being impertinent to this enquiry, because the whole step --
Hugo L. Black: Would it be impertinent to the enquiry if the government trial couldn't get it, how could a jury find that he could have done it?
J. F. Bishop: In this way. If you had proof that the government applied to Soviet Russia to take him back.
Earl Warren: He didn't want to go to Russia, did he?
J. F. Bishop: Well I'm giving an example, I'll get to that.
Earl Warren: Why not take (Inaudible) he did want to go?
J. F. Bishop: I would say the same thing, if the government sent papers to Finland and couldn't get action on them, that is no proof that he could not have, and I'll go to the record on that. The record shows in Exhibit 9 that this man had a sister who was married to a District Judge in Finland, I don't think it needs much savoir faire to know that he might have done a lot better job on it than the government if he had been so disposed.
Hugo L. Black: I imagine a lot of District Judges in the United States couldn't get them. [Laughter]
J. F. Bishop: I don't say that he could get them, but I say that the effort of the government, the success or failure of the government is not -- it gives no idea.
Hugo L. Black: So this man is convicted of willful failing to depart.
J. F. Bishop: But he was not restricted to Finland.
Hugo L. Black: I suppose that by some evidence -- I suppose that would require some evidence to show he could depart and didn't do it.
J. F. Bishop: That is supplied by the alternative that was given.
Hugo L. Black: Where?
J. F. Bishop: Canada, he was a Canadian citizen, in fact there is a very serious doubt which the jury could legitimately find from the record as to whether he wasn't indulging in the trick of naming Finland because that would be tough, whereas Canada was what he was a citizen of could of walked across the border with just numbers on him.
Hugo L. Black: Was he convicted for willfully refusing to go to Finland or willfully refusing to go to Canada?
J. F. Bishop: He was convicted for wilfully doing nothing.
Hugo L. Black: Well what he convicted for willfully doing nothing about going to going to Canada or Finland?
J. F. Bishop: There was no such distinction. He was convicted of a fact that he did not leave, and that he applied for new documents. That was (Inaudible), not that the government didn't -- that the government presented anything, it's admitted the government didn't get him out.
Hugo L. Black: I presume that the government if it has to give a bill of particulars would have been required to say whether he has failed -- refused to go to Finland or Canada, which did he refuse, which was he convicted of?
J. F. Bishop: He had asked for that bill of particulars; it would have shown only first on the affirmative testimony in the record that he was still around at the end of the six months.
Hugo L. Black: He was still here and that hasn't gone and therefore (Inaudible)
J. F. Bishop: No, that isn't all. Well, his duty was not restricted to going to the place where he chose, especially when he chose a country of which he hadn't been a citizen for 40 years and --
Charles E. Whittaker: (Inaudible)
J. F. Bishop: He had a right to make the election in the first instance, but if he applied to Finland --
Charles E. Whittaker: (Inaudible)
J. F. Bishop: It persists only to the time where he gets busy, files travel documents and is told no.
Charles E. Whittaker: (Inaudible)
J. F. Bishop: That's right.
Charles E. Whittaker: And he (Inaudible)
J. F. Bishop: Right, yes.
Charles E. Whittaker: (Inaudible)
J. F. Bishop: I don't believe so, if it --
Charles E. Whittaker: (Inaudible)
J. F. Bishop: If you had a case in which he was turned down –
Charles E. Whittaker: (Inaudible)
J. F. Bishop: I don't concur that there is an absolute right to play around for six months if you know you can't go to Finland; you have to get busy, find your papers --
Charles E. Whittaker: (Inaudible)
J. F. Bishop: I would say that the government makes its prima facie case by showing that he didn't go and that the evidence afterward showed us a great disposition not to go, and a failure on his part then to go forward with the evidence, to show what he did do. The government cannot negate that he applied to Finland or that he applied to anyone of a half a dozen other countries, the countries that he could have gone to. He was allowed to go to any country he wanted and he was also allowed the choice, but he was not allowed a choice to sit around and do nothing and then say prove (Inaudible)
William J. Brennan, Jr.: (Inaudible)
J. F. Bishop: He did.
William J. Brennan, Jr.: (Inaudible)
J. F. Bishop: No, any time that he could have disclosed another country under the regulations, the officer in charge could have permitted him to get out, he was not -- that was not binding him. His duty was to get out and the statutory duty is not couched in limiting him to making one effort. He gets the first choice and that is only the springboard for allowing the Attorney General to make a choice.
William J. Brennan, Jr.: (Inaudible)
J. F. Bishop: What's that?
William J. Brennan, Jr.: (Inaudible)
J. F. Bishop: If he proves that he made some efforts he does. If he does not, why we can't speculate after it's shown that he is still here, that he did anything. That is evidence that is so clearly within his own power to produce if he were actually in good faith that the government by having taken the laboring off, putting in evidence that he wasn't there, putting in evidence showing a clear disposition to drag his heels even when he could go after the six months, that I don't believe that the government has to disprove every possible explanation he could have made. He was still here at the end of the six months. He was doing nothing. He didn't say he was doing anything. He admits that he did nothing because he says the reasons he did nothing was he had an impression that he could nothing. This is not --
Hugo L. Black: The statute would require would it not, that the government proves beyond a reasonable doubt that he failed go to go to Finland or Canada or both, when he could have done so in order to convict him of a crime.
J. F. Bishop: Right, now how does it go about proving?
Hugo L. Black: And you claim that they have proven beyond a reasonable doubt, that he could have gone to Finland or Canada and didn't do so.
J. F. Bishop: Right and here is the way it's proved. The government first put in testimony that he was still here, no question about his failure to depart. There is no quarrel about that. Two, it put in the testimony in which he had admitted he did nothing. There is no question about that. He admitted he did nothing. The only excuse --
Hugo L. Black: I pick you third element that he could have gone had he tried.
J. F. Bishop: To where?
Hugo L. Black: To either anywhere.
J. F. Bishop: Canada, it did prove that, it had testament.
Hugo L. Black: You then rely on the Canadian instead of the Finland.
J. F. Bishop: That was after the six month period, he chose his disposition. But you're speaking now -
Hugo L. Black: Where is your evidence that he could have gone to Finland had he tried?
J. F. Bishop: The government only has to prove on this second count we are discussing that he did not apply for the documents. He admitted that, that's in the evidence. He did not make any application anywhere.
Hugo L. Black: What was he convicted of?
J. F. Bishop: Both, failure to get documents.
Hugo L. Black: Failing, refusing to go when he could have gone.
J. F. Bishop: That's right.
Hugo L. Black: Where is your evidence that he could have gone to Finland?
J. F. Bishop: I don't believe that the government has to prove that. It has made its prima facie case.
Hugo L. Black: You mean you convict a man, give him ten years in a penitentiary --
J. F. Bishop: Five.
Hugo L. Black: -- for refusing to go to a place without proving beyond a reasonable doubt that he could have gone there?
J. F. Bishop: There is no way that the government can prove that because he has to apply for documents himself, to make that proof possible. The government cannot prove that he can't go here and he can't go there if he doesn't even take the first step.
Hugo L. Black: You could have very easily proved if you were making the effort to get it and you could have shown that he could go to Finland. You could have had a lot of (Inaudible) he could go.
J. F. Bishop: That's the -- that he supposes --
Hugo L. Black: That crime you convicted him of there is refusal to go, failure, willful failure and refusal to go which has to embrace that, the fact that he could have gone.
J. F. Bishop: But the proof of that.
Hugo L. Black: That's right.
J. F. Bishop: Is amply made out --
Hugo L. Black: Is it on the government or the defendant?
J. F. Bishop: What's that?
Hugo L. Black: Is it on the government, it is the government's burden to prove that he is guilty or his burden to prove that he is innocent?
J. F. Bishop: The government has the burden of going forward with the evidence, but after it has gone forward with the evidence of showing that he didn't do a thing, the government is no position to prove that if he had done something, in this sort of a case that they would have been successful, because there are so many efforts that are diligent he thought he can employ, that was why this statute was passed.
Hugo L. Black: I can understand your argument with reference to a charge of a crime that a man had to file the papers, he didn't apply, but I do not understand your argument as made in connection with the criminal charge that he could have gone, he willfully failed and refused to go to a country, I do not understand how you say that the government is free from the burden of proving that he could have gone there. How could he have wilfully failed to do so?
J. F. Bishop: In this respect, the government proves he is still here. It's common knowledge and I think that this much can be conceded that some people can get in to various countries. He is not restricted to Finland, he is not restrict to Finland. If the fact is that Finland would not take him, he could explore that fact if you just sat tight and done nothing. We're not quarreling here about how much he has to do, or what it would have disclosed, this is a case where he just did nothing at all, and his whole reliance is that he thought he didn't have to do anything at all now. Now the government has shown that he was still here. His -- there is the fact that was before the jury that he was able to get in and out of Russia on his own, that he was able to get in and out of Canada on his own. Now wait a second let me retract that. That business of the fact that he had gotten in and out of Canada on his own without difficulty is in Exhibit 1 here which was before the judge, not before the jury, but he had shown great facility in that respect and the fact and with those facts before the jury.
Earl Warren: He got in without papers, didn't he?
J. F. Bishop: What's that?
Earl Warren: He didn't use papers at that time, did he?
J. F. Bishop: On the Russian --
Earl Warren: To get him around to Canada. I thought the government didn't know how he came in, he came in surreptitiously, didn't he?
J. F. Bishop: I'm speaking of the Soviet -- after his three years in the Soviet Union he came in, and without papers. To Canada, he went to Canada and it's not -- and Exhibit 1 doesn't indicate the means that he went in and out, but he did do that, but I don't want to bid, I don't want to go at it in that respect, but what I do want to show here is that the failure to prove that Finland would take him is not conclusive, because the government did show that even if Finland had not taken him, he could have gotten into Canada and the government cannot disprove that he couldn't have gotten into Russia or any one of 1,000 places. The government cannot just prove that if he had gotten going, that he wouldn't have been as successful as thousands of other people are successful. The government did prove to the jury that this man had no disposition to anything and then if he had failed in Finland he could have gotten into Canada, that's affirmative and that's there.
Felix Frankfurter: Mr. Bishop you till now hoped to me that I wouldn't have to read the record, I'm not so sure after listening to this 9in colloquy and so I would like to ask you one or two questions. As I understand you, your position is that the conviction can rest on count two, is that right?
J. F. Bishop: Are you saying that the conviction on count one can rest on count two?
Felix Frankfurter: I'm asking you whether the sentence can be sustained if count two is sustained (Inaudible)
J. F. Bishop: The sentence was on count one, the failure to apply, correct? Is this the -- is this directed to your question? The sentence was on count one --
Felix Frankfurter: You mean the judge specifically sentenced on count one?
Earl Warren: Yes.
J. F. Bishop: Yes and the sentence was deferred on count two failure to get documents.
Felix Frankfurter: Yes but the jury brought in a verdict on both counts.
J. F. Bishop: It did that, it found him guilty on both counts.
Felix Frankfurter: Now, if the record sustains count two then there is raised the question that Justice Harlan put to you earlier, the problem of resentence, is that right?
J. F. Bishop: Well that was --
Felix Frankfurter: (Inaudible) is that right?
J. F. Bishop: That is a problem.
Felix Frankfurter: That is a problem even for you.
J. F. Bishop: I'm not prepared to answer that, but if the statement is that the --
Felix Frankfurter: What I want to know, what I want to know is --
J. F. Bishop: It has taken five years.
Felix Frankfurter: What I want to know on this record is there is a sentence now or is there a sentence that would legally be imposed, which would sustain a conviction of a count two?
J. F. Bishop: Yes sir.
Felix Frankfurter: Yes. So directing myself to count two, I want to ask these questions.
J. F. Bishop: Yes sir.
Felix Frankfurter: If I read this whole record and I haven't read it at all, will I find that the issue under count two was the issue, not what could have been the issue, what might have been made the issue by a bill of particular or evidence or anything else, what was before the jury, what was contested, was sought to be proved, now as resistance, well I understand there was no evidence for the defendant, if the case had gone to the jury involved making, failure to make a timely application, in good faith of travel or other documents necessary to his departure from the United States and I'm going to add it was stupendous, was that the issue before that jury? Because if that was the issue before the jury then we can't tell whether they might have found it was sustainable as to Canada. And if that wasn't the issue, but if the issue was at large namely did he take no step whatever during six months to get a travel document somewhere either his choice or the Attorney General's designation, which it was within his power to obtain not foreclosed either because Finland announced they wouldn't give any visas of some other country, then we've got a different problem. Now can you answer that, what was the -- what was the issue with reference to which the court made the general charge to the jury? It doesn't have – well this to me, a good abstract charge at large if in fact the only evidence before the jury was whether or not he could get a piece of paper that would take him to Finland.
J. F. Bishop: The issue before the jury was this --
Felix Frankfurter: On count two --
J. F. Bishop: On count two.
Felix Frankfurter: Sustainable issue.
J. F. Bishop: That the statute embodied a blanket command that he apply for the travel documents, and also within a reasonable time, time length etc. It did not specify and I don't think the statute indicates in any respect that he was restricted to any country or to the country that he designated --
Felix Frankfurter: The statute isn't the important thing if the statute was cut down to narrower limits in the proceedings before the jury, for the jury when it retires, retires to deliberate regarding the matter that was before it and not matter that wasn't before it.
J. F. Bishop: Right, the jury retired to deliberate on the question as to whether he in good faith made timely application for documents, it had before it his own statement that he didn't do a thing.
Felix Frankfurter: Well now that the jury was there before the jury -- in some form or other, in a legal form that he wasn't restricted to applying for travel to Finland.
J. F. Bishop: I think that that was clearly before the jury in the affirmative testimony of the officer in charge that if they're presenting the Canada affidavit. I think it was also before the jury in this form 9, which disclosed that he had been a Canadian citizen for 40 years. It was before the jury in the testimony of the immigration officer as to what nominal documents you need in addition as a Canadian Citizen to go from the Superior, Wisconsin to Canada.
Felix Frankfurter: I'm not challenging any of these things, I'm trying to find out, I must say I'm considerably confused from what has taken place back and forth. Now when they went for the jury -- when they retire, was there before them a reasonable basis for considering, A) whether he had a choice not restricted to Finland B) There's – that nothing to show that he didn't have the opportunity to get a piece of paper for some country get out of this country.
J. F. Bishop: The answer is yes to both for those alternatives, yes. That was before the jury --
Felix Frankfurter: And not merely what you call prima facie. It must be whatever the tag, the Latin tag maybe, are there enough from which the jury could have found beyond a reasonable doubt that this person having a duty under the laws instructed by the court to get a piece of paper to get out, no matter what think of the whole business, to get a piece of paper to get out somewhere, there was no restriction upon him to get a piece of paper that would take him somewhere out of the confines of the United States.
J. F. Bishop: I think that was clearly before the jury. That was clearly before the jury and the -- and he didn't even -- and that sort of thing was not raised at the trial. What was before the jury was his excuse that he was an innocent man. That was the – that was the only problem before that jury and they just didn't believe him. They believed the testimony that was before them. I have – I didn't get a chance to get to that record, I think that perhaps the best – the instructions I can only ask that the entirety of the instructions be read with a repetitious and careful separation of these two offenses in several readings and with the repeated emphasis on willfulness and in the light of the fact that this jury had a hammered into it, as I said, 17 times that the petitioner didn't say he tried to do anything but he just thought, he didn't have to and that was the issue and the instructions were very clearly as to that issue so forth, I do wanted to --
William J. Brennan, Jr.: (Inaudible)
J. F. Bishop: Well it seem to me it was more than 4, 5 pages. I want to say this that on willfulness in spite of the fact that there had been some discussion with the judge before the instructions were framed and there had been some, even some quarreling about that one might say the –
William J. Brennan, Jr.: (Inaudible)
J. F. Bishop: Pardon?
William J. Brennan, Jr.: (Inaudible)
J. F. Bishop: That is right and there was no exception taken to that. In fact very diligent counsel accepted to everything and you'll find this in the record right up to the word ‘willfulness,' so that we must presume that to the counsel who was present at that hearing that that instruction did the job and posed fairly enough before the jury the question as to whether this man actually believed he could do nothing or whether was just dragging his heels and figuring on crying about it later. I think that this record as it is read will prove very definitely that the government proved that everything that it can prove and that it, that it made its case beyond a reasonable doubt. These matters in defense, and these speculations that he couldn't have gotten into Finland or into other countries are speculations that he frankly didn't back up by himself going forward with the evidence and showing that he filed some papers in Finland and was turned down. That didn't happen.
Charles E. Whittaker: (Inaudible)
J. F. Bishop: Assuredly this statute is not a trap. If he had gone in good faith anywhere and been turned down, he would not have been willful.
Charles E. Whittaker: (Inaudible)
J. F. Bishop: Correct.
Charles E. Whittaker: (Inaudible)
J. F. Bishop: Yes it was intended and he presented -- the only thing that he did present at the trial, an affirmative defense. He did not present the affirmative defense that he couldn't have gotten them if he had tried, he said he didn't do anything at all because he had gotten the impression from this limited officer that came to get questions answered that he didn't have to do anything. Well the statute said he did notice, we did and the jury had that notice too and the government cannot go and disprove all the defenses that might be contradictory. The government proved its case, and the jury believed it. Now we are supposed to go on a whole record and speculate that if he had gone, if he had really made energetic efforts to get into Finland, he couldn't have done it, well there is no proof of that. And the government did prove that he did nothing and the government in a case of this kind cannot undertake to disapprove every possible defense. The government has gone form over the evidence. It has the ultimate burden --
Charles E. Whittaker: (Inaudible)
J. F. Bishop: That is the question of fact, may I answer --
Earl Warren: Yes of course.
J. F. Bishop: That is question of fact which was put before the jury and it would not rest alone on the letter but on all of the facts which disclosed that this man was a very cynical man, who relied on his attorney and who could have enquired about this letter and who did nothing even when he had a chance to do it.