William H. Rehnquist: We'll hear argument next in No. 00-5961, Melvin Tyler v. Burl Cain. Mr. Larson.
Herbert V. Larson, Jr.: Mr. Chief Justice, and may it please the Court-- In June 1993 when this Court handed down its decision in Sullivan v. Louisiana, it did something it had done in only five other instances which spanned the preceding seventy six years... it characterized an error as structural. The holding of the Sullivan decision, which reaffirmed and explained this Court's decision in Cage, is what makes Melvin Tyler's conviction unconstitutional, but it is the Court's rationale underlying the Sullivan decision that makes Sullivan retroactively available to Melvin Tyler, and that is because the rationale underlying Sullivan also satisfies the second exception to Teague's policy of nonretroactivity to cases on collateral review.
William H. Rehnquist: How about EDPA?
Herbert V. Larson, Jr.: EDPA. The statutory argument is, Your Honor, that EDPA in this case would be purely theoretical if this Court finds that Mr. Tyler's case satisfies the second Teague exception. Having found that it did so, it could then make Cage retroactive. And had it made Cage retroactive, he would then satisfy the statutory language to EDPA. I want to make clear at the outset that we are not contending that all structural errors fall within Teague's second exception; we are simply saying that this one does, and it does so because the new rule first announced in Cage requires the observance of a procedure that is implicit--
William H. Rehnquist: Just getting back to EDPA for a moment, Mr. Larson. That says that an applicant has to show the claim relies on a new rule of constitutionality made retroactive to cases on collateral review by the Supreme Court. Now, do we interpret that as meaning that some other court can say it has been made retroactive by our Court, or that we ourselves must have said it is retroactive?
Herbert V. Larson, Jr.: --You yourselves must have said that it is retroactive in a successive petition. This Court... when I say must have said, this Court must have done something to communicate that the new rule is retroactive.
William H. Rehnquist: Well, when... first you said said, and then must have done something to communicate. Is that a broader standard than just said?
Herbert V. Larson, Jr.: Well, made is the word I'm looking for, Your Honor. This Court must have done something that made the new rule retroactive.
William H. Rehnquist: But, you know, one obvious choice in this language is to say, yes, the Supreme Court has held that this rule is retroactive. Now, does your use of the term made mean go beyond the concept of a holding?
Herbert V. Larson, Jr.: Yes, it does, Your Honor.
William H. Rehnquist: How would you define made?
Herbert V. Larson, Jr.: That it would be clear that the unmistakable import of an action taken by this Court would be that the new rule that had been announced was to be applied retroactively.
William H. Rehnquist: But this Court need not have said so in haec verba, so to speak, in so many words.
Herbert V. Larson, Jr.: Precisely, Your Honor. That it need not have said so expressly. And... to return to the point, we are not contending that this applies... that all structural errors fall within Teague's second exception. It is simply that this Court made very, very clear in Sullivan that that particular structural error was based on the two matters that were central in Fulminante v. Arizona.
Stephen G. Breyer: So you think that it is the unmistakable import, to use your words, of the Court's opinion, earlier opinion in Cage, that it was meant to be retroactive.
Herbert V. Larson, Jr.: No, I would say that it was the unmistakable import, Your Honor, in the Court's opinion in Sullivan--
Stephen G. Breyer: In Sullivan.
Herbert V. Larson, Jr.: --that Cage was meant to be applied retroactively, and that unmistakable import was received by seven circuit courts of appeal that have applied Cage retroactively since Sullivan. Every lower court that has considered the new rule in Cage since this Court's holding in Sullivan has said that Sullivan compels the application of Cage on a retroactive basis. The respondent in this case and amici have advanced two principal arguments for denying Melvin Tyler relief in this case. The first would be the language of EDPA which requires that a matter relies on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court that was previously unavailable, and then finally this Court's holding in Teague v. Lane that new rules of constitutional law cannot be applied retroactively to cases on collateral review unless they fall within one of two, as the Court has described, narrow exceptions. As I said in response to Chief Justice's question, from our perspective now that we are before the Court, the first obstacle is purely theoretical. If this Court should decide that Teague requires that the new rule announced in Cage as explained by Sullivan should be applied retroactively, and it simply says in this case, which it has the power to do, and as all... as amici has conceded, that it's made retroactive and applies it to Mr. Tyler's case, and that resolves the issue. Obviously, not every case that turns on the meaning of 2244(b)(2)(A) is going to be heard by this Court, so if the Court decides that it should address the statutory question now, we would submit that the better interpretation is the one that has been offered by the Third and the Ninth Circuits in the two cases of West v. Vaughn and Flowers v. Walter... that the phrase made retroactive to cases on collateral review by the Supreme Court does not require the express ruling of this Court. We are not saying, as the Ninth Circuit has said in Flowers v. Walter, that all cases that should be retroactive under Teague are, in fact, retroactive. We are simply saying that the word made in this case should be given its simple plain meaning of caused to be the case.
William H. Rehnquist: But I think an equally simple plain meeting is to say, made retroactive would be that this Court has said they were retroactive.
Herbert V. Larson, Jr.: That would be, Your Honor, but if that were to be the case, it creates an entire host of problems. First, I think that the Court... that Congress had before it the possibility of a wide variety of language such as held by, determined to be retroactive by the Supreme Court. The first is that this... the use of the word made as not requiring an express decision by this Court avoids the unequal treatment of similarly situated petitioners. You would have a first petitioner who received the... who a lower court could say, well, yes, the Court had made that new rule retroactive, whereas a second petitioner identically situated for Teague purposes would not receive the benefit of the rule. The second is that this interpretation of made retroactive is the only one that works with the statute of limitations that EDPA has created. If... if we are to interpret the rule as requiring an express ruling from this Court that something has been made retroactive, when the statute of limitations begins to run when the new rule has been recognized, as we pointed out in our briefs, you could have a statute of limitations expiring before this Court ever ruled on whether something had been made retroactive. On the other hand, if you were to take the position of the Solicitor General that maybe the statute of limitations doesn't begin running until this Court recognizes the retroactivity for successive petitions, the statute of limitations would never begin to run. So you would have successive--
Anthony M. Kennedy: On the other hand there is a thirty day requirement in the court of appeals to determine whether or not to decide the issue, and that indicates, it seems to me, that the only thing they can do is look to see whether this Court has decided it. Because otherwise they have to decide a difficult substantive issue within thirty days. It does not seem to me that that is consistent with the statutory scheme.
Herbert V. Larson, Jr.: --Well, but that's precisely the type of decision that lower courts make every day in terms of first petitions, as was done in this case. The Fifth Circuit had determined that Sullivan had been made retroactive... Cage had been made retroactive by Sullivan, and it applied it to all first petitioners. So I don't think, Your Honor, that we're placing an additional burden on the lower court because, quite candidly, we are only talking about a very, very, very small category of new rules that would have been made retroactive. In fact, in the eleven decisions that this... in which this Court has considered new rules of law since Teague was handed down, none have been found to qualify for the second Teague exception. In fact, this would be the first new rule under the second Teague exception. So to respond more fully to your question, Your Honor, I do not think we are placing an undue burden on the lower courts, because Your Honors' interpretation of requiring an express ruling from this Court would mean that a successive habeas petitioner under a new rule was either too early or too late, but never on time.
Sandra Day O'Connor: How many jury instructions do you suppose have been given out there in the past on reasonable doubt that would fall within Cage? I would think there might be a great many and going back a great many years, wouldn't you?
Herbert V. Larson, Jr.: The... my understanding is, Justice O'Connor, is that this instruction was the standard bench book instruction for Orleans Parish for a period of time. As to the number of--
Sandra Day O'Connor: Yeah, but how about other states and other jurisdictions? There has to have been a wide variety of reasonable doubt instructions that have been given over time.
Herbert V. Larson, Jr.: --There were unquestionably a wide variety of reasonable doubt instructions, but I don't think that there would be many states, and I have not seen many cases indicated, that would meet the requirements of Cage that have all three of the elements that Cage had that would be condemned. And the best example would be this Court's decision in Victor, which followed after Sullivan, in which it said, no, these type of instructions that Cage is where we draw the line, Victor is simply not, does not form part of that--
William H. Rehnquist: Yes, but presumably the Orleans Parish bench book instructions came from somewhere. You know, I think reasonable doubt instructions probably were quite frequent all around... they had to be in any criminal case, and I think it is probably not terribly accurate to assume that in no other place than Orleans Parish was this sort of an instruction given.
Herbert V. Larson, Jr.: --Your Honor, in all the reading I have done everywhere, I have never seen an instruction as bad as the Cage instruction from any other jurisdiction. This... and in fact the instruction that was given in Melvin Tyler's case is worse than the one that was given in Cage.
Stephen G. Breyer: The... is this... we tried to look this up, and I'll tell you what I found and see if it corresponds... either of you... that there were six or seven states right after Cage that had similar instructions, then the Court decided Victor v. Nebraska, and that seemed to suggest that all but in one or two, maybe the Louisiana and New York, that the instructions were okay. We found twenty one reversals in New York on this ground, and some in Louisiana, and no others. I mean, that's just a quick check, so it would be in New York and possibly Louisiana, if that's right. I mean, you know more about it than I do and have looked into this.
Herbert V. Larson, Jr.: My understanding is that very, very few states gave this type of instructions. The ones that were giving it certainly corrected it after Cage, and the number of people that would ultimately be affected by a finding that Sullivan compels the retroactivity of Cage would be fifty to sixty people would be--
John Paul Stevens: What you're saying--
Stephen G. Breyer: --If that's all, why is it a watershed?
Herbert V. Larson, Jr.: --Beg your pardon?
Stephen G. Breyer: I mean, if they're only going to affect fifty or sixty people, why is it a watershed rule?
Herbert V. Larson, Jr.: It is a watershed rule, Your Honor, because what happened in Sullivan changed the way that we understood reasonable doubt. It changed--
Antonin Scalia: Sullivan is a watershed rule, or Cage is?
Herbert V. Larson, Jr.: --Cage is the new rule, Your Honor. It is the ruling in Sullivan explaining Cage that makes it a watershed rule.
Antonin Scalia: What makes Cage a watershed rule... but your position is that Cage is a watershed rule.
Herbert V. Larson, Jr.: Cage is the new rule, Your Honor.
Antonin Scalia: Do you know of any other watershed rule that we have announced in a per curiam, unargued opinion?
Herbert V. Larson, Jr.: No, Your Honor.
Sandra Day O'Connor: Wasn't Cage just an application of Winship?
Herbert V. Larson, Jr.: Cage--
Sandra Day O'Connor: I mean, I don't know that you can say that Cage was more than that. I would have thought Winship was the case that may have led to Cage.
Herbert V. Larson, Jr.: --Winship was the principle. Cage was the application. Winship did not address jury instructions, Cage did. For the first time in Cage, this Court said that there is a reasonable doubt instruction that we can give that is error, and when we got to Sullivan--
Speaker: But Cage was just a per curiam that I guess the Court thought was compelled by Winship.
Herbert V. Larson, Jr.: --That's correct, Your Honor, but it was Sullivan which was a unanimous opinion by this Court after full briefing on the merit, saying that a Cage error is structural that represented truly the paradigm shift. That's why it becomes the watershed rule. Sullivan tells you for the first time and makes it clear that a reasonable doubt jury instruction, unlike any other jury instruction that you can give at a trial, if it is flawed, flaws the entire process.
William H. Rehnquist: Is it Sullivan that's the watershed?
Herbert V. Larson, Jr.: Well, Cage is the new rule, Your Honor, and it is Sullivan's explanation of Cage--
William H. Rehnquist: But is--
Herbert V. Larson, Jr.: --is the watershed.
William H. Rehnquist: --If per curium Cage is just following Winship, isn't it a little hard to say that it's the new rule.
Herbert V. Larson, Jr.: Cage has been recognized as the new rule because for the first time... Winship did not address jury instructions, Your Honor, Cage did. For the first time, the new rule becomes that when a court gives a reasonable doubt jury instruction that misdefines reasonable doubt, and in effect lowers the state's burden of proof, you have violated the due process rule.
Anthony M. Kennedy: I am quite surprised that you say that Cage is not the watershed rule. I think that really has to be your... this would have been very odd for us to issue Cage and then only say in Sullivan that it's a watershed rule. That's a very strange holding. It seems to me that Cage has to be the watershed.
Herbert V. Larson, Jr.: Well, Cage would be the new rule, Your Honor, and it is Sullivan's--
Anthony M. Kennedy: Everyone, I think, would agree that it's the new rule. The question is whether it's a watershed rule.
Herbert V. Larson, Jr.: --Well, as explained by Sullivan--
Anthony M. Kennedy: A watershed rule is like Gideon v. Wainwright, I take it? Is that a paradigm?
Herbert V. Larson, Jr.: --It is a shift in the paradigm, is the best way to explain it. To use an analogy, I would say that Gideon would be the continental divide, and Cage would be the watershed. What you really have is a watershed--
Anthony M. Kennedy: No, no... well, now we've got three different terms. Gideon is a watershed rule, could we stipulate that?
Herbert V. Larson, Jr.: --Yes.
Anthony M. Kennedy: I'm tempted to say I know Gideon, and Cage is no Gideon.
Herbert V. Larson, Jr.: Cage is no Gideon... I will admit that Cage is no Gideon, but it is still watershed because it has changed our thinking about the centrality of the reasonable doubt instruction. What Sullivan teaches us because it tells us that a Cage type error is structural--
Anthony M. Kennedy: I didn't think Cage made it apparent to us for the first time that beyond a reasonable doubt is a fundamental aspect of our system. We knew that, before Cage, during Cage and after Cage.
Herbert V. Larson, Jr.: --We knew--
Anthony M. Kennedy: So what's watershed about Cage?
Herbert V. Larson, Jr.: --What is watershed about Cage as explained by Sullivan... I don't think that you can view the two in isolation. As explained by Sullivan, which identified Cage as structural error, that what is watershed about it is that when you have had a reasonable doubt jury instruction of the type given in Cage and Sullivan, you have not had a trial by jury within the meaning of the Sixth Amendment. That's not my language, that's the language of the Court. That there has been no jury verdict of guilt beyond a reasonable doubt.
Antonin Scalia: But it is the language of the Court in Sullivan.
Herbert V. Larson, Jr.: Yes, Your Honor.
Antonin Scalia: So Sullivan's the watershed case.
Herbert V. Larson, Jr.: But Sullivan builds on Cage, and you can't have, I guess, one without the other. I wish the two had come together, but what I have is Cage first announcing the new rule and then Sullivan explaining the import of the Court's decision in Cage.
John Paul Stevens: Let me ask you... the Chief Justice asked earlier, we're focusing on the word made retroactive by this Court, and your position is Sullivan made Cage retroactive.
Herbert V. Larson, Jr.: Yes, Your Honor.
John Paul Stevens: And my question is, did Sullivan... is it the Sullivan holding that made Cage retroactive, or statements in Sullivan that made it?
Herbert V. Larson, Jr.: Statements in Sullivan, Your Honor.
John Paul Stevens: So it's dicta rather than the holding.
Herbert V. Larson, Jr.: No, Your Honor, it's not dicta. It's the rationale, and the rationale was precisely following Arizona v. Fulminante. That as Arizona v. Fulminante defined structural error, it had two components. The first component was that a structural error deprives a defendant of a basic protection or right. And the second component is that that protection or right is one without which the criminal trial cannot reliably serve its purpose as a vehicle for determining guilt or innocence.
Sandra Day O'Connor: Well, do you say that every structural error is a watershed rule under Teague?
Herbert V. Larson, Jr.: No, Your Honor.
Sandra Day O'Connor: No.
David H. Souter: How do you draw the line? I was going to ask the same question. You say, well, this is a structural error that is watershed, some structural errors would not be. How do we tell?
Herbert V. Larson, Jr.: You draw the line by looking to the two Teague factors, Your Honor, and those two Teague factors are that we have to be dealing with a rule that requires the observance of a procedure that is implicit in the concept of ordered liberty, which Sullivan tells us we unquestionably are. We are dealing with the Sixth Amendment right to a trial by jury. And then there is the second problem of the Teague analysis, which is the reliability factor. And because of Cage and Sullivan, we know that when you have an erroneous reasonable doubt instruction such as the one in Cage, Sullivan and Tyler, that you have... that the likelihood of an accurate conviction has been seriously diminished.
David H. Souter: Well, except that that's not the way we explained it in Sullivan... what was at stake. We didn't say anything about accuracy or reliability, as I understand it, and as you quoted from it a moment ago. What we said was that as a matter of definition, what we mean by a jury verdict has not been observed when the jury is operating under this kind of reasonable doubt instruction. It had nothing to do, as I understand it, with what we normally mean by the reliability of a verdict, i.e., was the person really guilty or not guilty? Did he do it, did he not do it? So it seems to me that the two don't synchronize the way you're arguing.
Herbert V. Larson, Jr.: They do, Your Honor, if you go more into the structure. The reason you have been deprived of a jury verdict within the meaning of the Sixth Amendment. For that you have to go all the way back to In re Winship. And what we understand from In re Winship is that there is only one measure of reliability within a criminal trial, and that is the proof beyond a reasonable doubt standard. Presumably as you push the burden of proof to higher levels, the likelihood of an improper or erroneous conviction is lessened, and that if you require proof beyond all doubt, you would have... certainly you would not have any innocent people hopefully convicted. And so what Winship tells you is that it is that proof beyond a reasonable doubt standard that, quote, from Winship, plays a vital role in the American scheme of criminal procedure, because it is the prime instrument for reducing the risk of convictions resting on factual error.
David H. Souter: If that's the argument, then why isn't the structural nature of this error essentially irrelevant to your analysis?
Herbert V. Larson, Jr.: It is... what I am saying is that the Court has... it is not irrelevant, because the Court has already made those findings as to what a Cage or Sullivan type jury instruction means.
David H. Souter: Well, the Court... the Court has said it's structural, but in your answer to my question, you're saying the reason this structural error is, in fact, a structural error which must be made retroactive is a product of Teague. Why don't we simply go to Teague?
Herbert V. Larson, Jr.: We can, and--
David H. Souter: Okay. If we go to Teague then, what's left of the significance of Sullivan? Sullivan is significant, as I understand it, only because Sullivan indicated that the first case was structural, and yet you say you concede that the structural nature of it is not dispositive. If the structural nature is not dispositive, then how can we tell from Sullivan that, in fact, Cage must be retroactive? We can't.
Herbert V. Larson, Jr.: --What you can tell from Sullivan is that the Court has, in essence, found that these two components of the original structural error test in Fulminante are congruent with the two components of the Teague retro--
David H. Souter: If that were the case, then we wouldn't bother with a Teague analysis. We would say it satisfies Teague as a matter of law, and I don't think that is your argument, nor do I think it could be your argument.
Herbert V. Larson, Jr.: --No, that is not my argument, Your Honor. I'm simply saying that the Court, having made that type of findings and having set forth that rationale for a finding of structural error in that case... because there could have been a finding of... there can be findings of structural error that don't satisfy the Teague analysis, and obviously we wouldn't rely on them, then. We're simply relying on Sullivan because it's made the findings for us.
David H. Souter: Okay, but you are relying on Sullivan not because Sullivan said it's structural, but because Sullivan has made some findings which happen to satisfy Teague criteria. That's your real argument.
Herbert V. Larson, Jr.: Precisely, Your Honor.
David H. Souter: And the structural nature of it is essentially beside the point.
Herbert V. Larson, Jr.: Precisely, Your Honor. But the reason we--
Ruth Bader Ginsburg: Mr. Larson, if that's the position you're taking, to say, if we read Cage and Sullivan and we see this is a watershed rule, practically doesn't it become less watershed? This goes back to a question Justice Breyer asked. When you then add Victor and Sandoval, and you get to the proposition that the jury doesn't have to be given any charge at all, it can be left to its own devices to define reasonable doubt.
Herbert V. Larson, Jr.: --The centrality of Cage is... what it told us for the first time is that somehow the message of what proof beyond a reasonable doubt has to be conveyed to a jury. Otherwise you have no Sixth... trial within the meaning of the Sixth Amendment.
John Paul Stevens: That's not quite right.
Ruth Bader Ginsburg: That's incorrect, Mr. Larson.
John Paul Stevens: It has to be conveyed accurately, it doesn't have to be conveyed at all. We've held you don't have to have a reasonable doubt... a definition of reasonable doubt.
Herbert V. Larson, Jr.: You don't have to define reasonable doubt, but if you do define reasonable doubt, it has to be defined accurately.
Ruth Bader Ginsburg: Then practically isn't there a great risk of distortion or misunderstanding if there is no charge at all?
Herbert V. Larson, Jr.: Oh, absolutely, Your Honor. If reasonable doubt is never defined for a jury, if the jury is not told something about reasonable doubt--
Ruth Bader Ginsburg: They're just given the words, and I thought from our latest decision that that is enough, that they do not have to be told anything more than beyond a reasonable doubt is the standard.
Herbert V. Larson, Jr.: --Proof beyond a reasonable doubt... they do not have to be told what reasonable doubt is. It's simply that if they are told what it is, that is must be defined accurately.
William H. Rehnquist: But I thought a moment ago you said that you have to say something more than just reasonable doubt, and I agree with you. Our cases have not said that. They have not said that you must define reasonable doubt in any way.
Herbert V. Larson, Jr.: You have to make clear what the burden of proof is in a criminal trial, and--
William H. Rehnquist: By saying, quote, beyond a reasonable doubt, closed quote.
Herbert V. Larson, Jr.: --That the burden is on the state to prove--
William H. Rehnquist: Yes, well, I wasn't suggesting it was on the defendant.
Herbert V. Larson, Jr.: --Unless there are further questions from the Court, I would like to reserve any remaining time for rebuttal.
William H. Rehnquist: Very well, Mr. Larson. Mr. Heuer.
Charles E. F. Heuer: Thank you Mr. Chief Justice, and may it please the Court-- There are two questions presented here. The first concerns the meaning of Section 2244, and the second concerns whether Cage fits the second Teague exception. If I may, I would like to begin with the second question presented. The... I submit that the principal issue here has less to do with Cage and Sullivan than it does with Teague's implication for a watershed rule. I think clearly Cage conveys an element of accuracy and fairness.
John Paul Stevens: Before you get started, may I just ask, do you agree that Cage was a new rule?
Charles E. F. Heuer: Yes, Your Honor. Teague gives us an example of a watershed rule in Gideon and provides a definition that a watershed rule is a rule which alters our understanding of the bedrock procedural elements necessary for a fair trial. Our principal point is that... the question is, does this definition encompass the notion that a watershed rule can redefine an existing procedural element, or does the watershed rule need to announce a new previously unarticulated procedural element? I would submit that to adopt the first definition would require the rule so redefine an existing procedural element that we have, in a sense, created a new bedrock procedural element, and it is insufficient to simply alter our understanding and illuminate an existing procedural element in some way. That the new rule must tell us a fundamentally new principle that is applicable in each and every trial that should be conducted in the future.
Ruth Bader Ginsburg: Can you give an example other than Gideon? I mean, you say this is not a watershed rule. Gideon is a watershed rule. And then there's a vast space. Is there any... is Gideon it, or are there other watershed rules?
Charles E. F. Heuer: Well, I think you need to go back in history to an extent, and a lot of our principles have not evolved in such a dramatic fashion. If you take Winship, although it made it constitutional, the notion of reasonable doubt had been you know around for, you know, as long as anyone could remember at that time.
Ruth Bader Ginsburg: Well, I think we would like to know if you have a positive example, not what isn't a watershed rule, but what is, other than Gideon?
Charles E. F. Heuer: You know, I think you look to the Bill of Rights and the defendant's opportunity to confront the witness against him, to have a public trial, a fair and impartial jury, and--
Stephen G. Breyer: But isn't the--
Antonin Scalia: --I would think all of those are not watershed rules. I mean, surely all of that has been around. I don't... I really don't understand--
Charles E. F. Heuer: --Well, in the sense that--
Antonin Scalia: --What makes it a watershed rule?
Charles E. F. Heuer: --Well, in the sense that to be a watershed rule... a watershed rule requires two components. One is that it be the fundamental foundation that... and that it... to become a watershed rule it has to announce a new principle, yet encompassed in that definition is the fact that it forms an essential bedrock procedural element. So the examples I gave you, correct, would not be watershed rules. They would--
Stephen G. Breyer: Well, why wouldn't this one be, then? Why wouldn't this one be? That is, what their argument is... I mean you might find it easier to address the specific. The specific, I take it, is that before Cage and Sullivan, people always understood that judges can make mistakes on jury instructions. They do every day of the week, and some are very important. But after Cage and Sullivan, we suddenly see that a misdescription of the reasonable doubt standard is like no other. It is so important that automatically you get a new trial no matter what. The only other thing that compares is not having a lawyer at all. So before the two cases we thought, yes, you could make a mistake in the instructions, maybe even a bad one. After the instructions, we recognized that that kind of mistake is unique among all others and like not having a lawyer. Now, that's their argument, I think, as to the significance in you're reshaping our legal thinking about a jury standard misdescription. All right? So now, on your principle, why isn't that watershed, or why isn't it watershed irrespective of your principle?
Charles E. F. Heuer: --I think the question of structural error is distinct from retroactivity. I believe Teague requires an additional component. Moreover, the structural error of a misdescription of reasonable doubt has more to do with whether or not we can get our hands on what's going on there, whether or not the effect of the error is quantitative. We simply cannot look at the verdict and conduct an analysis because we don't--
Sandra Day O'Connor: Well, now every court of appeals to have considered the question has said it has... Cage has to be applied retroactively. Isn't that right?
Charles E. F. Heuer: --Correct, Your Honor.
Sandra Day O'Connor: And they're all wrong, I guess, in your view.
Charles E. F. Heuer: That's our position, Your Honor. And I think it comes from the fundamental misunderstanding that a watershed rule must announce a new bedrock principle. It cannot simply cast new light on an existing bedrock principle. And although, you know, we have cited the same language as the various courts of appeals, that the rule alter our understanding--
John Paul Stevens: Can I just interrupt with one--
Charles E. F. Heuer: --of the bedrock procedural elements for a fair trial, then it's clear--
John Paul Stevens: --Mr. Heuer, can I just interrupt with one--
Charles E. F. Heuer: --Excuse me, Your Honor.
John Paul Stevens: --one thought. When you ask a question whether a rule is retroactive, I think you are really asking whether the rule applied at the time of the trial. And are you arguing that at the time this man was tried he did not need a better reasonable doubt instruction?
Charles E. F. Heuer: I think the retroactivity... whatever the--
John Paul Stevens: Doesn't that ask the question what was the law at the time of the trial, and you're saying--
Charles E. F. Heuer: --That he was entitled to a reasonable doubt--
John Paul Stevens: --he did not need a better instruction than he got.
Charles E. F. Heuer: --Well, Your Honor, correct. But I think that at the time of anyone's trial you can say that he was entitled to confront the witnesses against him, yet we could create a new rule which shows that a videotape conference was not the equivalent of confronting the witnesses against you.
John Paul Stevens: But if it's a new rule... if it's a new rule, he was not entitled to that instruction at the time of his trial, it seems to me.
Charles E. F. Heuer: Well, you know, this language fell within the logical compass of the reasoning in Winship, but, you know, I don't think that anything we knew before dictated or compelled the conclusion that this instruction failed to accurately delineate the standard of reasonable doubt, so this--
Sandra Day O'Connor: Can you shed any light for us on how many verdicts would be affected by our clarification, if we made it, that this must be applied retroactive? How many are there?
Charles E. F. Heuer: --I checked with the Department of Corrections, and there are 1.057 inmates in Angola currently whose trials came from Orleans Parish, and whose trials commenced approximately a year before Cage.
Stephen G. Breyer: It's been eight years since the Court decided Sullivan. You would have thought that if there are a thousand people there under the... in respect to whom the trial courts, in fact, used this wrong standard, some of them would have thought of this idea of bringing a habeas petition. I mean, are there any other habeas petitions filed?
Charles E. F. Heuer: That's all I do, Your Honor.
Stephen G. Breyer: What? All of those thousand--
Charles E. F. Heuer: There's hardly a habeas petition filed in the Eastern District of Louisiana that does not include a--
Stephen G. Breyer: --Okay. So is that... that number of a thousand is the number of habeas petitions that have been filed that include this question?
Charles E. F. Heuer: --No. That is simply the number of inmates--
Stephen G. Breyer: How many habeas petitions have been filed, to your knowledge, that include this question?
Charles E. F. Heuer: --I can't answer that, Your Honor.
Stephen G. Breyer: Do you come across in your personal experience more than one?
Charles E. F. Heuer: Oh, yes.
Stephen G. Breyer: Yes?
Charles E. F. Heuer: Clearly over a hundred... you know, in the hundreds, since Cage was announced. I could say that any given year I answer thirty to forty myself as a member of an office of seven or eight attorneys, including the case here.
Ruth Bader Ginsburg: Counsel, based on your argument was the Fifth Circuit wrong in allowing the district court to consider this successive petition?
Charles E. F. Heuer: Yes, Your Honor. I don't believe that Sullivan constitutes a prima facie showing that Cage was made retroactive by this Court. Sullivan concerns a different issue other than retroactivity, and that, you know... I just don't see... you can make a prima facie showing that this Court has ever made Cage retroactive, even though the standard is simply prima facie. I think that goes more to the prima facie and this also goes to whether or not the particular individual actually had an instruction that resembled Cage--
Ruth Bader Ginsburg: Well, I am asking the question because of the short time frame that the court of appeals has to determine whether it's going to allow a successive petition. The district court got the question, as it did here, would have more space. But you're saying that the court of appeals within the short time that it has, should have cut this off at the pass?
Charles E. F. Heuer: --Yes, Your Honor. And it goes to, you know, there's a fundamental difference between what... how you consider made retroactive, and whether or not a decision such as Sullivan can stand as a determination that this Court has explicitly held or ruled that a particular new rule should be applied retroactively.
Anthony M. Kennedy: Let's assume that we have never said whether or not Cage is retroactive... let's assume that. On a successive habeas petition, how could we ever make that determination substantively?
Charles E. F. Heuer: Well, I believe--
Anthony M. Kennedy: The only thing that the court of appeals can answer, according to you I take it, is whether or not we have said that, and if the court of appeals is right that we've never said that, isn't that the end of the matter? Can we ever reach the question on a successive petition? We're talking on the merits.
Charles E. F. Heuer: --Well, I believe... I believe that Congress believed that the finality concerns were so critical in terms of second and successive habeas petitioners that it would leave that judgment to this Court, and presumably that would occur at the time of a first habeas petitioner.
Anthony M. Kennedy: So we have to wait for a first habeas petition or a direct review to say this?
Charles E. F. Heuer: Correct.
Stephen G. Breyer: What do you think of unmistakable imports? Sorry, were you finished? Were you finished in your answer to Justice Kennedy?
Charles E. F. Heuer: Yes, Your Honor.
Stephen G. Breyer: Unmistakable import is their idea, that sometimes this Court might not say, and it is retroactive on collateral review. Rather it is the unmistakable import of the opinion that it isn't. Is that good enough for you?
Charles E. F. Heuer: Your Honor, I believe the fair reading of the statute makes the inclusion of this Court superfluous under that rationale.
Stephen G. Breyer: But can you answer just yes or no, I'm not sure whether you... I said, is that good enough for you?
Charles E. F. Heuer: No, it's not, Your Honor.
Stephen G. Breyer: Because?
Charles E. F. Heuer: Because I believe the only fair natural reading of the statute is that Congress put such a... had such great concern over second and successive habeas petitions that they have given this Court the additional responsibility of announcing the retroactivity of a rule before a second or successive habeas petitioner can come back to court and challenge his conviction.
Stephen G. Breyer: And you put up with the anomaly that that creates?
Charles E. F. Heuer: Yes, Your Honor.
Stephen G. Breyer: Even if, for example, there were such cases just obvious... like flag burning, the Court says flag burning is... you can't punish that, or you can't punish writing an editorial in a newspaper criticizing the government. Or, you know... and so there is a certain conduct that now they cannot punish. It's absolutely clear that it's in that category. This Court has now made certain conduct unpunishable under the criminal law, and that's the kind of thing that Teague says is retroactive, and even where it's absolutely plain that it is the reason, it still, in your opinion, is not retroactive unless the Court adds the words and it is retroactive.
Charles E. F. Heuer: Your Honor, in cases... the first exception cases clearly present a more difficult argument than the second exception. Nevertheless, I believe that the Congress believed that cases that fall under the second exception are never so clear as to not require a statement from this Court.
David H. Souter: But you would accept dicta. In other words, you say we can make it within the meaning of EDPA, even though we say it in dictum? Because that's what we would be doing. We would have to do it to decide the case in which we make the statement so that our further statement, and by the way, this is going to be retroactive would be dictum so far as that case is concerned, and that would satisfy the concept of made in EDPA?
Charles E. F. Heuer: Yes, Your Honor. I believe that that would satisfy the congressional concerns regarding the retroactive application.
David H. Souter: Well, if we... if EDPA does not require a holding, in other words, for example, an appeal from a first habeas in which there's no question that the issue can get up and in which case our declaration would be a holding. If no holding is required, if dictum is satisfactory, why shouldn't a straightforward application, if there is such a thing of Teague, be equally satisfactory? I could understand the line if you were saying it's got to be a holding of the Court, but if it hasn't got to be a holding of the Court, why is Teague less worthy than dictum?
Charles E. F. Heuer: Well, my principal argument would be this case itself... that the courts have seized on the conclusion that Sullivan, without deciding any retroactivity concerns, because it found the error structural, made it retroactive.
John Paul Stevens: Aren't you saying in response to Justice Souter that we should read the word made to mean said?
Charles E. F. Heuer: Yes.
John Paul Stevens: But they didn't say it said.
Ruth Bader Ginsburg: One of the problems with--
Antonin Scalia: --Unless you believe that what we say has effect. I don't know, some people believe that.
Ruth Bader Ginsburg: But is it appropriate for this Court to say, now we've got this case before us, and we decide this case. There's going to be another case down the road which would present the question of retroactivity. So we are going to say in this case, which doesn't present the question because it's here on direct review, that in that other case is not before us. Courts don't operate that way. They decide the cases before them.
Charles E. F. Heuer: And in the case of second successive habeas petitioners, you know, they may have to wait until this Court has had an opportunity to address a first habeas that raises that issue. They may have a legitimate claim to file but because they are second or successive habeas petitioners as opposed to a first habeas petitioner who, upon announcement of the rule, can go into Federal court and say, look, I think this ought to apply to me even though I was tried before the decision was held, and the second successive petitioner, he might have to sit and wait until that speculative argument has been--
Antonin Scalia: Well, it's more than sitting and waiting. He won't be able to get the benefit of the retroactivity is what you're saying, and what you're saying is, serve him right, he should have raised it in his first habeas. You're saying that that's one of the results of EDPA.
Charles E. F. Heuer: --Right.
William H. Rehnquist: And the Congress was not particularly sympathetic to second habeas petitioners in EDPA.
Charles E. F. Heuer: Exactly, Your Honor. The finality concerns for second and successive petitioners is so strong that they created a separate gateway for them to enter in order to present claims of this nature on a second petition. Thank you, Your Honor. I have nothing further.
William H. Rehnquist: Thank you, Mr. Heuer. Mr. Feldman, we will hear from you.
James A. Feldman: Mr. Chief Justice, and may it please the Court-- Petitioner may not base his petition in this case on Cage, because the rule of that case has not been and should not be made retroactive by this Court.
Anthony M. Kennedy: In answer to the question Justice Breyer asked your colleague, where primary conduct is held to be not punishable as a matter of law, is that also subject to the same retroactivity principles we're talking about, or is there a different rule? If the first rule of Teague is involved, i.e., conduct which cannot be punishable?
James A. Feldman: I don't think there is. I think the fairest reading of the statute is that it has to be made... the specific rule relied upon by the second petitioner has to be made retroactive by the Supreme Court, not by some other court--
Anthony M. Kennedy: Even if it's beyond the power of the law to punish? I mean, isn't that somehow automatically retroactive?
James A. Feldman: --Well, I think the fairest reading is what I said. I do think you could distinguish some if the Court... I think the fairest reading is what I said, but you could distinguish some cases in which... like the Eichmann case, for example, perhaps.
Anthony M. Kennedy: Which case?
James A. Feldman: The Eichmann case, the flag burning case, in which... you could distinguish some cases under the first Teague exception in which the application of that exception is just absolutely crystal clear, but I don't think all first exception cases are even close to that, and I don't think that any second exception cases would be like that. So although you could say an absolutely clear first Teague exception case could satisfy the made retroactive standard, I actually think the better rule is what Congress provided, which is that it be this Court and not some other court that's vested with the responsibility of finally and conclusively deciding that the certain new rule is valid, and it should be made retroactive.
Stephen G. Breyer: But that's fair because then if it's this Court... I mean, it's this Court and not some other court that writes an opinion, the unmistakable import of which is that it is retroactive on collateral review. That would satisfy you, though you think... if I'm right, that satisfies you, but I'm guessing.
James A. Feldman: No, that wouldn't. I think the fairest reading of the statute is Congress made a considered decision that there have been difficulties in the lower courts with understanding what is retroactive and what is not retroactive, and that you could never be sure, finally and conclusively, that a particular rule was retroactive until this Court had said that it was. And that someone who is on second and successive habeas, who has had direct review and first habeas already, that person is in jail validly and pursuant to his conviction, and if this Court gets around to saying that, then the person may be--
Stephen G. Breyer: You mean... no, I'm sorry-- --I just want to be... in other words, unmistakable import isn't good enough, you have to say it in those words.
James A. Feldman: --I think so. Yes, I think that that's what Congress provided, and I think they provided it for a good reason. As I said in response to Justice Kennedy, if the Court wanted to distinguish unmistakable import cases, I would think those would only arise under the first Teague exception, and I also think that not all cases under the first Teague exception would qualify or be even close. I mean, petitioner in this case... I think in their brief they have about five examples. I would agree with one or maybe two of them, but not with the other three, and I think there would be a lot to argue about.
Stephen G. Breyer: I take it that the only conclusive determination by this Court could be a determination on a first habeas.
James A. Feldman: I think on a first habeas in a case like this whereas a kind of, whereas a kind of--
David H. Souter: When the defendant takes an appeal on the second.
James A. Feldman: --On an original petition--
David H. Souter: But in terms of what? The gatekeeper should allow through... the gatekeeper on your theory, I take it, shouldn't allow anything through until there had been a conclusive determination. And I take it on your view that requires a holding so that the only holding that you could look to would be a holding, if the system works right, would be a holding on first habeas.
James A. Feldman: --Yeah, I would go maybe just an inch beyond holding, which is either a holding or a statement that's not dicta. That is, a statement that's necessary to the conclusion in the case.
Speaker: Right.
David H. Souter: I'm not sure that I understand the distinction.
James A. Feldman: I'm not sure that could not be the holding.
David H. Souter: What's the distinction?
James A. Feldman: Well, it can be part of the reasoning in the case but if it was the necessary reasoning. It is very hard for me to--
David H. Souter: But in any case you wouldn't be satisfied with dicta from a case on direct review, or a statement from a case on direct review?
James A. Feldman: --No, I... I just don't think that we can fairly say that it's this Court that's made the specific new rule that the habeas petitioner is relying on, that it's this Court that's made it retroactive when it's just a statement in an opinion which the lower courts have to pay attention to, but those statements don't themselves have legal force and effect like the holding of a case or perhaps a statement that was necessary to the reasoning and therefore not dicta.
Stephen G. Breyer: Then you'll run into a statute of limitations problem, because the statute of limitations seems to say that it has to... you have a year after the right of cert was initially recognized by the Supreme Court, and so you're going to have to do within the year... it's going to have to come up on habeas to the Supreme Court in an instance, let's say, where it's absolutely clear from the reasoning that it is meant to apply retroactively, so you'll never... I mean, it'll put this Court in an impossible situation, wouldn't it?
James A. Feldman: I don't think it would. First of all, I think the statute of limitations provision hasn't been construed, as far as I know, that particular provision of it, by any lower court, and the meaning of whether it would run from the date of the original decision or the date that this Court had made the decision retroactive I think is not entirely clear, so I don't think it would necessarily be a problem. But I also do think that Congress intended that the gateway for second and successive habeas petitioners should be extremely narrow, and they assigned, Congress assigned, the courts of appeals the responsibility within a thirty day period of deciding... usually they're based just on the petition, not on any response from the other party, from the warden... based just on the petition a determination of whether it satisfies the Teague exception or not. If they can look at the decisions of this Court, that part of it won't be hard to do. They might have difficulty figuring out just what the claim is, but they won't have difficulty figuring out whether it's retroactive.
Ruth Bader Ginsburg: What about the Gideon example? Well, that's a clear case where it would be... the Court would have made it retroactive, but the Court didn't say that expressly in Gideon.
James A. Feldman: In our... that's correct, and this statute, of course, didn't apply then, but a second or successive habeas petitioner would have had to wait until there was a decision of this Court that finally and... what Congress had in mind was that it be finally and conclusively decided, both the validity of the rule the petitioner is relying on and its retroactivity, before they're going to get into Court. Congress did not intend that people should be able to bring second or successive habeases so that they can establish whether it's retroactive or not. And as shown in this case... the petitioner in this case claims that it was totally clear after Sullivan that the rule in Cage should be made retroactive, but I think we've at least made substantial arguments it's not, and it's going to be... there are going to be issues raised in these cases, and I think the Congress wanted this Court--
John Paul Stevens: Mr. Feldman, the petitioner argues in the alternative that Sullivan made it retroactive, or that we could now in this case make it retroactive. What do you say about the second argument?
James A. Feldman: --I think that the Court could, but I don't think that the Court should, make it retroactive. I think the key distinction--
John Paul Stevens: But you agree we could.
James A. Feldman: --Yes. I think the key distinction that the Court should keep in mind is between the refinement and the application of rules that are bedrock which I think is what Cage did, and I think a comparison the Cage decision with the decision in Victor v. Nebraska shows that that was a refinement of just precisely what the reasonable doubt instruction means--
John Paul Stevens: But you do agree that Cage is a new rule?
James A. Feldman: --Yes, I do.
Anthony M. Kennedy: But how can we reach the substantive retroactivity question here if we assume that we've never said it before... that's the end, the court of appeals was right to dismiss. So how can we reverse the court of appeals?
James A. Feldman: I think the Court could do it because the question would really come down to whether the word made retroactive had a temporal component, that is, it had to have been done at the time he filed the petition, or whether it could be done some time later in the litigation. And it's our view that it doesn't necessarily have that temporal component. If you thought that it did have that temporal component, then you would stop after the first question.
David H. Souter: No, but... maybe I don't understand your answer. I mean, the only determination that the gatekeepers were supposed to make was the determination as to whether the case should go forward and that determined... that turns on the retroactivity of the decision.
James A. Feldman: That's correct.
David H. Souter: So if the decision was not retroactive before it gets here, the gatekeeper should have said, no, we should reverse them on that, and we should reach no other issue. And if we reach another issue, we're in dictum.
James A. Feldman: I don't think that that's correct, because it's true that that's what they should have done, but the consequences of them not doing that are that there are two questions that are presented to this Court in this case, and the Court in other cases... again, the Court could just reach a--
David H. Souter: But in your view, you are saying that--
Anthony M. Kennedy: --No, but if the court of appeals was correct.
James A. Feldman: --No, I think the court of appeals was clearly incorrect because this Court had not made Cage retroactive and, in our view, should not make Cage retroactive.
David H. Souter: So you're saying they were wrong, but we're going to forget that because we are now going to say something which we had not said, which had we said it earlier, would have made them right. That's the reason.
James A. Feldman: That is sometimes what happens, for example, when this Court overrules its own decision in a past case, where the lower court did not have the authority to do that but might have nonetheless--
William H. Rehnquist: But isn't this discussion a perfectly good reason to say, we should analyze it the way it was before the court of appeals and not do anything to alter that situation in the present case?
James A. Feldman: --Well, that would be also... the Court could... the Court could do that. I think the Court has discretion as to... I was only saying that I thought the Court could reach the other question if it chose to. With respect to the retroactivity of Cage, the point of the rule in Teague was that good faith reasonable explications of rules of constitutional law... even bedrock rules and very important rules of constitutional law should be validated and should not form the basis for later habeas review.
William H. Rehnquist: Thank you, Mr. Feldman.
James A. Feldman: Thank you.
William H. Rehnquist: Mr. Larson, you have three minutes remaining.
Herbert V. Larson, Jr.: To respond to Justice O'Connor's question regarding the number of people who might be affected, the number one thousand I would submit is very inaccurate. This instruction was not given in all criminal cases in Orleans Parish. It would also be subject to the statute of limitations under EDPA. Following Sullivan, people had to file Cage claims saying I had a Cage instruction. And so the number of people... and this is based purely on an estimate from inmate counsel at the Louisiana State Prison... there might be fifty or sixty people still in prison who had gotten a Cage instruction and, even then, since we are only dealing with the retroactivity issue, they would still have to surmount all of the very formidable procedural obstacles that otherwise apply in habeas cases. The reason that Mr. Tyler did not raise this in his first petition to Federal court is because it wasn't available to him. His first petition was in 1988, Cage was handed down in 1990. Sullivan didn't come along until 1993, and as soon as Sullivan came along, Mr. Tyler timely filed his habeas petition.
William H. Rehnquist: How long a term was your client serving?
Herbert V. Larson, Jr.: He's serving a life sentence, Your Honor.
William H. Rehnquist: A life sentence?
Herbert V. Larson, Jr.: Life sentence. And in terms of the unmistakable import of this Court's decision in Sullivan, seven circuit courts of appeal had considered this question, one of them en banc. Not one judge in any of those courts has ever suggested that Sullivan did not compel a finding that Cage was to be applied retroactively. In terms of whether there is some ground between Gideon and Cage in terms of watershed rules, I would suggest that in Justice Harlen's concurring opinion in Mackey, he made it clear that that category, that second category, does have cases, and that cases will arise in that second category. It's not an empty box as one of the amici suggested in their brief, it is a box into which we put rules, new rules of law, that are fundamental. And what is fundamental about Sullivan is that it tells us that if a jury is given a yardstick that is two feet long, that's not sufficient. It has to be accurate because that is the central point of any jury trial, criminal jury trial. There are some decisions that are... some errors that are so fundamental that a conviction obtained with that type of process should never be final. That's what Justice Harlen recognized in his entire retroactivity doctrine. If we obtained a jury verdict by flipping a coin--
William H. Rehnquist: Thank you, Mr. Larson. The case is submitted.


Earl Warren: Number 66, Kalman J. Berenyi, petitioner versus District Director, Immigration and Naturalization Service. Mr. Rifkind, you may continue your argument.
Robert S. Rifkind: Mr. Chief Justice, may it please the Court. I'd like to begin if I may by trying to answer two questions, which I did an inadequate job with yesterday. Mr. Justice Fortas asked, first of all concerning the review provided like it within the service and within the Justice Department of hearing examiner determinations in these matters. Limiting myself to naturalization proceedings, I understand that there is a procedure for review within the immigration service. In this case for example, the hearing examiner's determination was reviewed in that District Office and then by a Regional Commissioner. There is no provision for -- and more general review outside the service except as to peculiar or particular rulings of law which might come from the Office of Legal Counsel. I did point out that Section 335 (d) of the Act provide that in all events even if disapproved by a superiors, the hearing examiner's report was go to the District Judge. On the other hand, it is not binding on the District Judge in any sense and as the District Judge here said, he disregarded both the findings and these -- and the conclusions of law completely.
Speaker: If the Government's position is sustained in this case, is this man said -- the deportation?
Robert S. Rifkind: I think not Your Honor. It seems to me that only two conceivable grounds for deportation. One is that he was at some time a member of the Communist Party. The other is that he gave false testimonies. As to the former, it seems to me clear that the Government's own evidence showed that his membership was not of the meaningful variety that would serve as a basis for deportation and probably wasn't even of this sort of the voluntary variety that would serve as a basis for exclusion. As to the misrepresentation, he would of course have the benefit of Section 241 (f) which forgives that sort of thing, you have that before you in the Erika case. So I think there is no basis for deportation here.
Speaker: Is he foreclosed from another application for natural -- for citizenship?
Robert S. Rifkind: Certainly not. Indeed, he is now entitled to apply as the spouse of an American citizen since his wife was admitted to citizenship. The period involved there is a three-year period after her admission. They need only show good moral character for that three-year period and his time in that regard would be up in about 15 months from now. So it's a very short-term proposition. One other thing I might mention also bearing on this general problem of review within the Justice Department and the Immigration Service is that about a hundred thousand persons are naturalized each year, at least that was the figure in the last report of the attorney general for 60 -- 1965. Of those petitions were withdrawn and some 1800 cases and there was a litigated question and some 150 questions -- cases. So that there's quite a substantial problem as far as reviewing the details of each cases in administrative manner. I also think that those figures tend to stress the importance of the system of self-disclosure of self-reporting that the Immigration Law depends on. It's rather like the Internal Revenue Law in many senses. It is largely the initial application that the petitioner files in which he answers a variety of questions which were designed by regulations, the Attorney General was authorized to issue --
Abe Fortas: Mr. Rifkind, this man as denied naturalization as I understand that because he's supposed to have made false statement with respect to membership in the Communist Party. Is that right?
Robert S. Rifkind: That's right sir.
Abe Fortas: Now, on this record, the first and second as a matter of general principle, what constitutes membership in the Communist Party for this purpose? I think that may be the issue here.
Robert S. Rifkind: Well, petitioner had certainly urged that -- your decisions in Rowoldt and in the Gastelum cases concerning a meaningful association -- meaningfulness of association I should say are controlling here.
Abe Fortas: And you've just told us that their -- was not meaningful association in this case in that sense --
Robert S. Rifkind: I think that's right.
Abe Fortas: -- so that if that's the standard then you have no case.
Robert S. Rifkind: If that is the standard, I think we should (Voice Overlap).
Abe Fortas: Now what are the alternatives on -- what does a Government relied up here defending this order?
Robert S. Rifkind: I think that what we're saying is that the degree of his membership, the intensity of his fidelity or his loyalty to that cause is quite decide the point here.
Abe Fortas: No, I'm not asking you that. I'm asking you, what is membership in the Communist Party? As I see this record, nobody said that he had -- that he saw the inscribed role of the Communist Party with this fellow's name on it.
Robert S. Rifkind: That is true.
Abe Fortas: Now, what he is -- membership in the Communist Party? Suppose a fellow gets up at a study group for this purpose. Supposed a fellow gets up at a study group or in a classroom and says that the doctrines of Marx and Lennin are the last word and whatever, (Inaudible) whoever happens to be in command and says is a -- the religion from now on. Is that kind of thing make him a Communist or what just -- what is it that the Government says. Say, at first is a -- in this record, and second is a matter of theory shows that this man lied.
Robert S. Rifkind: Well, I think there are two things. One is -- in this particular case, he said he was a member of the Communist Party.
Abe Fortas: You mean there is testimony to that effect?
Robert S. Rifkind: There is testimony in the record that he said to other people in Hungary that he was a member of the Communist Party.
Abe Fortas: And you would consider that that is adequate. That is to say a person's own statement is sufficient to make a subsequent declaration that he was not a member of Communist Party make that perjury or a false statement rather.
Robert S. Rifkind: I think that in lessons -- there are some substantial doubt cast on that sort of admission.
Abe Fortas: Well, he tried the cast down on it here by saying, “What to my mind is the most impressive thing in this record.” Now, it says that he was on a regiment that his testimony is to be believed that as a doctor that support the Communist at the time of the Hungarian uprising and then the second and to me most important that he left the country I think “fled” is the word used in the record after the Communist crushed the uprising.
Robert S. Rifkind: Right. And I -- it seems to me also, just to add to that in a way and to try and refine what our position is, it is not contended by any means that he was a believer in any of the principles of the Party. I think that --
Abe Fortas: No contentment.
Robert S. Rifkind: I think we could not because as Dr.Halasz testified against him kept saying, “I think he was a member on paper. I don't think he was a believer. I don't think he was a member in his heart, but I think he was a member of the Party.”
Abe Fortas: But what you say -- what makes you say that he lied because he was a member of the Party and you say he was a member of the Party because in Hungary -- according to the testimony of a witness, he said he is a member of the Party. He said he was a member of the Party. And in addition, there's testimony that he did those things principally attend meetings which were open only to members of the Party which nonmembers would not be free to do.
Speaker: You've got a finding (Inaudible)
Abe Fortas: But the question --
Speaker: -- the man said that he was a member of the Communist Party and that he is an instructor in Marxism (Inaudible) -- membership with being indoctrinated with the principles of the Party. Now, is that finding of statute seperately (Inaudible) doesn't satisfy your (Inaudible)
Robert S. Rifkind: Well I supposed that under proper -- under -- I don't want to resist you. But -- that on this coercive circumstances, I could be an instructor and practically anything I could bone up on and still not have my heart in it. Our position is as I see it and I think it emerges with some strength --
Speaker: That doesn't say anything about belief and subversions of subversive aspects of the (Inaudible) -- whether he is a member, (Inaudible)
Robert S. Rifkind: That's true.
Speaker: In a meaningful sense (Inaudible)
Robert S. Rifkind: Well, perhaps we do satisfy the Rowoldt test but my -- I think it's important for the administration of this law for me to suggest that we needn't satisfy the Rowoldt test. Because in Rowoldt after all and in the Gastelum case, you were construing statutory language of Section 241 of the Act, you were trying to determine what sort of membership Congress had intended should bear certain consequences. Here, we're not concerned with statutory language, we're concerned with a search for information whereas the -- concerned with an examiner's questions. Questions which I have no doubt the examiner had a right to put and ought to have put under the circumstances of qualifications for citizenship. It was information that the petitioner was obliged to supply. And therefore, I don't think you have to go into the question of what Congress intended in using the word membership. After all, petitioner was asked some seven times over a period of several years, whether under any circumstances at any place he had in any way been affiliated with or a member of, directly or indirectly -- any Communist Party. And he said, “No.” He didn't say, “No, but,” or “No, except,” or “Yes, except.” He didn't say, “Yes, but I wasn't an active member,” or “Yes, but I was not a nominal member.” He said, “No.” And I think -- although he was advised by counsel at that time and he was told that there was evidence the contrary for him to now come and say, if he does and I admit it but arguendo in the hypothetical for him to now come and say, “Yes, I was a member but I was not a meaningful member or an active member.” Is -- it seems to me to admit that he's been engaging in a deception all these years.
Abe Fortas: Well, what -- he says that arguendo, doesn't he?
Robert S. Rifkind: Arguendo then on the pieces of --
Abe Fortas: Yes, but you can't say that he says in arguendo and he's not taking a -- change his position, each one or the other.
Robert S. Rifkind: Insofar as his alternate argument is -- well, even if I was a member of the Communist Party, I wasn't a meaningful member. I don't think that squares with the sort of answers he's been given to searching questions over a period of years. We certainly agree or we agree arguendo at least with the petitioner that if his naturalization had been barred under Section 313 because of his Party membership, that the Rowoldt test and the Gastelum test of meaningfulness might be appropriate. But it wasn't denied for that reason. It couldn't have been denied for that reason if the District Judge found. It was denied purely because he was found that he wasn't telling the truth. And it is the truthfulness of his testimony or the untruthfulness of his testimony that is critical here, not the meaningfulness of his membership.
Speaker: You say (Inaudible)
Robert S. Rifkind: That's right.
Speaker: (Inaudible)
Robert S. Rifkind: Well, as far as I know he did go to a lawyer and he did have counsel, and I don't know. Perhaps he feared or perhaps he knew that the facts were other than those that the District Judge finally came down on. That is perhaps he had been a member within the last ten years. And feared that we would prove more than -- we succeeded in proving or perhaps his membership -- he feared would be have shown to be more active. I don't think we have to show that he -- that the -- I don't think we have to show that it was immaterial -- that there was a bar to his naturalization in his membership in order to show that he testified falsely in concealing that matter and this Court has said that on many occasions. The trial courts have too before 101 was -- Section 101 was passed, this Court said in Federal Communications at WOKO. It's the fact of concealment that is more significant that the facts concealed. It's the willingness to deceive a government agency that in this case bears on good moral character.
Earl Warren: Mr. Rifkind, was he asked in detail about his participation in the seminars that are under discussion?
Robert S. Rifkind: Yes, he was.
Earl Warren: Well, what was he'd -- what were his answers?
Robert S. Rifkind: They varied from time to time. And I don't mean to say there was a substantial contradictional or there was some minor contradictions. He said he participated in -- in general, in group discussion that all students were required to participate in. That is that the study of Lenninism became a required subject at the university under communist rule and that he engaged in that sort of discussion. But he denied participation in the sorts of discussions that either Dr. Halasz or Dr. Kury placed in it.
William O. Douglas: But he's -- the people who testified against him professional witnesses?
Robert S. Rifkind: Not to my knowledge. Both of them I should say where naturalized citizens at the time that all this took place.
William O. Douglas: I mean, they still could be professional witnesses.
Robert S. Rifkind: They could be, I don't -- I have no reason to suppose that they have.
William O. Douglas: That the only government payroll or --
Robert S. Rifkind: I've seen nothing in either the record here or any place else to suggest that. One had been a communist admittedly and the other had not.
William O. Douglas: Reason I ask is as you know, we had been -- from the federal courts quite a few cases involving these professional witnesses who turned out to be perjurers.
Robert S. Rifkind: I -- all I can say is I have looked beyond this record to the administrative record, I've seen nothing to suggest that. To go back to the clearly erroneous argument in the minute remaining, I tried to show yesterday that there was a sharp conflict of testimony but the judge was faced with the task of weighing the evidence one way or the other, an inescapable task, I submit it was. This Court has said that at trial court's choice between two permissible views of the weight of the evidence cannot be clearly erroneous. I think that's through a fortiori when the burden of persuasion is conceitedly on the petitioner. He had to resolve a long line of decisions in this Court, indeed the Act say, he had to resolve doubts that he may have had against the petitioner. I also think it's important that particularly with witnesses who's -- were relative newcomers to the English language that the trial judge had a very superior opportunity to see all the witnesses in this case. We're dealing with a very cold record and I think the mandate of Rule 52 of the deference due to the opportunity of the trial judge to assess the credibility of the witnesses is particularly important where credibility is the ultimate issue in this case. And finally --
Earl Warren: Mr. Rifkind do you -- even though he does have the obligation of proving that he has good moral character when he is accused by a witness such as Dr. Kury or whatever his name was, of being as a communist, does he had the duty of proving the negative of that?
Robert S. Rifkind: Well I understood the petitioner to say yesterday and I certainly agree with him that the ultimate issue of course is good moral character.
Earl Warren: Good moral character, yes.
Robert S. Rifkind: In this -- this -- the question immediately under that is whether he's been telling the truth, we as bearing on good moral character. The Government -- he made out a prima facie case of truthfulness and good moral character and submitting his petition through affidavits. The Government then supplied some evidence when forward with the evidence calling that into question. It was then his burden as I understand it, to still show that he was of truthful character, good moral character. And he had to overcome the evidence that the Government presented and persuade the court that he wasn't back a truthful witness.
Earl Warren: But does it go to the extent of requiring him to prove that -- disprove the testimony of Dr. Kury?
Robert S. Rifkind: I think it does in this case or to -- yes, I think it does.
Earl Warren: Burden is on him to prove that he was not a communist?
Robert S. Rifkind: That's right. And that would be true under any of the provisions of Section 101. It also provides that a person who's been a habitual drunkard cannot be found to be a person of good moral character. As far as I can understand it, the Government supply some evidence raising a question as to whether a person is a -- or tending to show that a person is a habitual drunkard. He would have a burden of showing that he wasn't. Because the ultimate issue is good moral character and on that issue, there's no question, he must establish his case.
Earl Warren: Leaves a man on the -- in a rather delicate situation doesn't it where someone comes in and says, 16 years before at a meeting where the witness can identify, no other person who attended the meeting except him that he admitted at that time, being almost a boy at the time too that he was a communist.
Robert S. Rifkind: I agree. I agree it's hard. I -- all I can say is that I think it's difficult to --
Earl Warren: And in a foreign country too where he can't bring any witnesses or anything of that kind, pretty heavy burden on a man, isn't it?
Robert S. Rifkind: It is a heavy burden, proving that you're attached to the principles of the constitution maybe difficult. I mean, I don't know how one would really go about doing that but it's required, proving that one as well disposed to the happiness of the United States maybe difficult. I don't know how --
Earl Warren: But if somebody is -- somebody said, “I don't believe this man is attached to the principles of the constitution with that -- they cast of burden on him to disprove that and affirmatively established that he was.”
Robert S. Rifkind: I think that if the Government brought forward evidence to -- supplied evidence to seriously call that into question, that is right. At least so, all the cases I've read suggest, and as long as we are going to have a very strict rule, a very limited rule for denaturalization. That is as long as our doubts are going to be resolved very strictly against the Government and only in various extraordinary cases you're going to allow denaturalization, which I think is the -- clearly, healthy situation. It seems to me that the traditional view and the statutory view the doubts are to be resolved against the petitioner on the naturalization side is a desirable logical relationship. I agree it's difficult. I would only whined up by saying as this Board has said, acquisition of American citizenship is a solemn affair. Full and truthful response to all relevant questions required by naturalization procedures of course to be exacted and temporizing with the truth must be vigorously discouraged.
Abe Fortas: Mr. Rifkind, the Government presented two witnesses here. Their testimonies summarized at the Government's brief. One of them was Dr. Kury, the other is Dr. Halasz. Does the Government rely on the testimony of Dr.Halasz?
Robert S. Rifkind: Yes, sir.
Abe Fortas: Despite the substance of that testimony as set out on pages 68 of your own briefing?
Robert S. Rifkind: I think that's right.
Abe Fortas: What is there in Dr. Halasz's testimony that supports this finding at all?
Robert S. Rifkind: I think the real -- the essence of the impression that a reasonable trier of fact could draw from Dr. Halasz in which I do is that granted and admitting quite readily that he didn't see the petitioner take the party membership oath that there is such or (Inaudible), didn't see his Party card. He nevertheless saw him under circumstance --
Abe Fortas: No, no, not -- I think we don't have it a little straighter than that it would be -- if I may ask your indulgence because your own brief says that Dr. Halasz had been assigned to check that those attending a meeting were carrying their private cards.
Robert S. Rifkind: That's right.
Abe Fortas: But he had never seen a membership card for petitioner. From having seen petitioner at meetings, Dr. Halasz had thought that petitioner was a Party member. And as I read your summary, that's the only thing that's in here from Dr. Halasz. Then he goes on the say that he did not in fact know where the petitioner was a member or whether he was a nonmember who had been invited to attend. And he says, he didn't -- they did not believed -- he stated, Halasz stated, that he did not believe petitioner was a Communist that hardly even if he was a member, petitioner had and I am quoting from your brief. Petitioner had occasionally helped Dr. Halasz with his medical studies in the course of which petitioner had made statements against the Party and the regime. But you're telling me that you're relying not only that the Government of the United States, that relying not only on the testimony of Dr. Kury but also on the testimony of Dr. Halasz which I assumed is correctly summarized in your brief.
Robert S. Rifkind: That's right. I think frankly that all of the things that you've just read from tend to support the credibility of that witness, tends to support the thesis that that petitioner was a member of the Party as a matter of opportunistic convenience without any other form of attachment. But that those around him and those who knew him believed him to be -- from the reasonable surrounding circumstances in fact a member of the Party.


George B. Matthews: May it please the Court. With reference to a question which Mr. Justice Stewart asked regarding the consent waiver in this case, there is no consent in so many words, however, we submit that whereas in this case following the falling of the libel not only was a personal appearance entered, but a claim was filed for the vessel and the letter of undertaking was given that the motion is tantamount to a consent since it will carry with it the appearances. Secondly, I might further mention that in the General Electric case decided by Mr. Justice Whittaker, he remarked that in his opinion, there was little question with that, a motion constituted a waiver of venue -- a motion to transfer constitute a consent to transfer our waiver.
Potter Stewart: Do you think it could be argued that the substitution of a bond or of an undertaking such as is in this case converts an in rem action to an in personam action?
George B. Matthews: No, sir. I don't think that could be argued. However, I don't know what the difference is or maybe it's a distinction without a difference except in one case that occurs to me. For example, in the Public Vessels Act, there is no provision for in rem seizure of public vessels. However, a libelant may elect to proceed according to principles in rem. As I say, what that amounts to with one exception, frankly, I don't know. The exception being the case of compulsory pilotage where the courts upheld that an owner is not liable in personam for the negligence of a state required or compulsory pilotage but that a vessel is. Now, that is the only distinction that occurs to me between an in rem and an in personam action or liability, if you want.
Potter Stewart: Beyond that, you think it's just a matter of labels?
George B. Matthews: Correct.
Potter Stewart: Falling out of libel instead of a complaint or some --
George B. Matthews: Beyond the point of jurisdiction and security and except for the compulsory pilotage case, yes. Now, in this Court --
Felix Frankfurter: (Inaudible)
George B. Matthews: Sir?
Felix Frankfurter: (Inaudible)
George B. Matthews: Unless there is an expressed statute such as in the carriage of goods by sea, there is no limitation, Mr. Justice Frankfurter. There's a doctrine of laches.
Felix Frankfurter: (Inaudible)
George B. Matthews: No, sir. There are --
Felix Frankfurter: (Inaudible)
George B. Matthews: I -- I'm -- I don't envision a case at the moment.
Felix Frankfurter: (Inaudible)
George B. Matthews: I -- I don't quite see it. I know of no case.
Charles E. Whittaker: Mr. Matthews, could you tell us of what -- what would this judgment if the plaintiff is successful per se? Would it just award dollars to be made on execution? What would the judge -- terms of the judgment be?
George B. Matthews: The judgment would be against Federal Barge Lines certainly in the in personam action and --
Charles E. Whittaker: No, in this action and defend like that.
George B. Matthews: The in personam -- there are two actions here, Mr. Justice Whittaker.
Charles E. Whittaker: I'm talking about the one in Louisiana.
George B. Matthews: There are two actions, two --
Charles E. Whittaker: In Louisiana?
George B. Matthews: Two -- there are two actions. Yes, sir. One action but two, not a cross proceeding.
Charles E. Whittaker: Was that the first claim?
George B. Matthews: No, sir. There is an in personam action against Federal Barge Lines seeking a recovery against that individual respondent. Joined to that is a proceeding, it's all one proceeding actually. I'm maybe using words loosely. But, as part of that action, there is a prayer for a recovery in rem against the Barge FBL-585. Those two recoveries sought are part of one action, so that if there is a finding of fault on the respondent's part and/or on the part of the barge, there would be a decree in favor of Continental and against Federal on account of the -- or rather in response to the in personam prayer. There would also be a decree against the barge and her stipulators or her surety if you want in response to the in rem part of the action. However, since the lien on the Barge would have been discharged by the giving of the bond, the decree would be satisfied by the barge's stipulators or surety.
Charles E. Whittaker: But the decree would run against the Barge.
George B. Matthews: Or her stipulators, yes.
Charles E. Whittaker: Or, or or/and?
George B. Matthews: Or. I'd -- I don't -- I -- I would -- I don't know that there'll be any great difference, I would assume. In any event, it would be satisfied by the stipulators.
Charles E. Whittaker: It makes a difference to my mind and my processes of thinking is to whether or not that barge is going to be held in this decree.
George B. Matthews: I'll say this to you. It's somewhat inconsistent to me. That is the way decrees are drawn, but that to my mind, conflicts with the jurisprudence which is certainly are well established that the giving of a bond releases any lien for account of which the bond is given.
Felix Frankfurter: (Inaudible)
George B. Matthews: I think that's a loose phrasing of his because --
Felix Frankfurter: (Inaudible)
George B. Matthews: Sir?
Felix Frankfurter: (Inaudible)
George B. Matthews: Look, the Court will note the statement in -- in our question presented on page 2 of our brief, we post it as follows, whether a District Court may on motion of the respondent transfer an admiralty suit brought -- brought both in personam and in rem --
Felix Frankfurter: (Inaudible)
George B. Matthews: -- to another district wherein the in personam respondent was suable from -- but from which the risk had been removed prior to the falling of -- of the libel.
Felix Frankfurter: (Inaudible)
George B. Matthews: No, sir, with the respondent. I'm reading from the question -- we contraverted there, the petitioner's question presented is the Brown pretty far on page 2.
Felix Frankfurter: (Inaudible)
George B. Matthews: The -- the -- yes, sir, as well as the lower court's per curiam.
Felix Frankfurter: (Inaudible)
George B. Matthews: How do you mean, sir?
Felix Frankfurter: (Inaudible)
George B. Matthews: Yes.
Speaker: (Inaudible)
George B. Matthews: You mean that there was -- that there were two --
Speaker: Both in personam.
George B. Matthews: Oh, yes.
Felix Frankfurter: (Inaudible)
George B. Matthews: One further the point I like to mention which I think is quite important and that is that in this case, we are not confounded with any statutory venue requirements. There are none here. Venue in an in personam action is wherever the respondent can be caught to -- so to put it, or whether wherever his property can be attached by a writ of foreign attachment. That maybe in anyone of a number of places, for instance, a New York respondent may have property in Louisiana which we could seized, perform the basis of -- of personal jurisdiction at least to the extent of property. Venue in an in personam action is basically where the vessel is or where the owner or claimant should it be a charge we will agree to appear for the vessel.
Felix Frankfurter: What's the basis for (Inaudible)
George B. Matthews: Yes, sir, I think it is. And that's one difference between this case and the two preceding cases, one basic difference I think.
Hugo L. Black: (Inaudible)
George B. Matthews: The in personam respondent, Mr. Justice Black, was suable in Memphis so that had the in rem action not be enjoined to the in personam action. There would be -- we would not be here today because there would be an ultimate forum under any theory of this statute.
Hugo L. Black: (Inaudible)
George B. Matthews: Because it maintained an office there.
Hugo L. Black: (Inaudible)
George B. Matthews: And the in rem --
Hugo L. Black: (Inaudible)
George B. Matthews: If that be -- if that would be the correct theory.
Hugo L. Black: (Inaudible)
George B. Matthews: Correct. Thank you, Your Honors.
Eberhard P. Deutsch: Just a -- a few more words. May it please the Court. Whether a question -- with regard to the question as to the nature of the proceeding and the fact that it is not in personam so far as it's postured before this Court is concerned. I direct your attention to pages 16 and 17 of the transcript, so that we will understand this so-called letter of undertaking. It -- it is simply a substitute for a so-called stipulation which an admiralty is a name for a shorty bond. And at the bottom of the page, you will see it is the intent of this undertaking that the rights of the libel and then claimant respondent in this proceeding shall be in full, purposes shall be taken to be precisely the same as they would have been had the vessel in fact been taken into custody by the marshall under said in rem process and released for the filing of claim and release bond. We, as claimant reserving in behalf of the vessel all other objections and defenses otherwise available, except those which might be predicated upon the fact that the vessel was not actually seen. In other words, the cases in rem proceeding, its character has not been changed by the giving of this letter of undertaking which says, “We'll pay any judgment you get against the Barge.” And the judgment or decree in admiralty is for dollars against the vessel requires her condemnation and sale to satisfy the judgment and that condemnation and sale of course does not take place if someone comes in and voluntarily pays the amount due which is the normal course especially when bonds are posted.
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: Well, I think you -- I think you can put the statement that way but it is only the in rem part of the proceeding which has come here as Judge Brown said. That was the only question decided below with regard to this phase of the case. It's all one proceeding.
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: Well --
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: It's all one, yes.
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: You can't very well split it and say we have two actions and we'll transfer the in personam and keep the in rem so that as a matter of course, it -- you couldn't transfer the in personam without the in rem because its just one -- one libel.
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: Oh, no, they are all in one proceeding which is the normal practice. The cases have so held that it is permissible to do it. But they are -- you could file a libel in personam in one district and the libel in rem in another and the two cases would go on neither subject to dismissal.
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: Well, of course, that's a very difficult question. I suppose that the Court of Appeals and certainly all of us, and there's never -- we've never really raised the -- that question. I have assumed that the in rem action takes the precedence because it is the one that could not be moved to one side. It must remain where it was brought.
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: There isn't the slightest question that if this were an in personam action alone, there was a second available forum. There isn't any question about that.
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: New Orleans, sir.
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: Well, I don't think you can split the action that's two parts. No, sir.
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: As you would -- but we didn't have them here. We haven't. We -- they are not separate here. They are all one.
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: I said that if this Court were to hold that, that would be the result but I don't think it's a correct -- I think the in rem action has its situs and must remain there and that brings up, Mr. Justice Whittaker's --
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: Surely.
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: There's no question about --
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: No question about that. It is our position that this action may not be transferred onto that stat --
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: Yes, sir. But I -- I don't think the rules are different in admiralty case, sua sponte, you have to, an admiralty case in rem. I had -- in this case to be joined in a single action with a one in personam, but setting that aside for a moment, the 1404 (a) as it relates to admiralty actions in personam in my humble opinion be treated just like any other civil action.
Hugo L. Black: (Inaudible)
Eberhard P. Deutsch: It's a point I was just coming to, Mr. Justice Whittaker as to battle a local action. In my humble opinion, 1404 (a) can have no effect whatever on a local action. You can't bring an action to foreclose land anywhere except where the land is.
Potter Stewart: Well, that's because only one District Court has jurisdiction --
Eberhard P. Deutsch: Right.
Potter Stewart: -- over the subject matter.
Eberhard P. Deutsch: Right.
Potter Stewart: Quite a part from --
Eberhard P. Deutsch: That is correct --
Potter Stewart: -- venue or jurist -- or a personam.
Eberhard P. Deutsch: Now, in this case, you have a race which is movable.
Potter Stewart: Yes.
Eberhard P. Deutsch: And you can bring the action wherever that race happens to be at the time. In the land, it can only happen to be in one place, but the principle is the same in my opinion.
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: That's right.
Potter Stewart: Question put in your petition for certiorari is confided in rem.
Eberhard P. Deutsch: That's right.
Earl Warren: (Inaudible)
Eberhard P. Deutsch: I don't think --
Earl Warren: (Inaudible)
Eberhard P. Deutsch: I think we must, yes. I think that is correct, the latter statement, yes. Now, very briefly, if I may be allowed a couple of moments more. This question about an in rem action and it's applying only in compulsory pilotage cases and so on, it's a very real thing. A solvent owner is liable in an in rem action only insofar as the value of that vessel is concerned and no more and that is very important matter. In a salvage case for instance, the owner isn't liable at all unless he has made an agreement. The vessel alone is liable. He may defend and try to get the salvage reduced if he has that much of an interest. In the case of the bareboat charter, when the vessel is in collision, the owner is never liable. He said no part in the land and so on. There are a number of such cases. It isn't just one thing. Finally, with regard to a question which was asked yesterday by Mr. Justice Harlan that occurred to me about Judge Learned Hand having expressed himself on this subject, the case is Foster-milburn v. Knight in 181 F.2d, he did express himself as saying that the role that there can -- that there must be two forums applies under 1404 (a).
Speaker: (Inaudible)
Eberhard P. Deutsch: He has quoted it from Justice Jackson's opinion.
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: I don't think it is but in the Torres --
Felix Frankfurter: (Inaudible)
Eberhard P. Deutsch: In the Torres case which is cited -- the Anthony versus Kaufman case, Judge Frank does say that. The Torres case however, talks of the vessel having been available in the transferee district as well. And then Judge Medina goes on and says, “Anyway, they've waived it here.” Now, to that extent, it is a doctrine. Thank you.