Earl Warren: Number 147, Georgia, Petitioner, versus Thomas Rachel et al. Mr. McPherson.
George K. McPherson, Jr.: Mr. Chief Justice and members of the Court. The facts in this case are as follows. On August the 2nd, 1963, a grand jury of Fulton County Superior Court in Atlanta, Georgia indicted the defendant, Thomas Rachel and 19 other defendants in separate indictments for a violation of the Georgia law making it a misdemeanor to fail and refuse to leave the premises of another after having been requested to leave by the person in charge of the premises. The incident for which the defendants were indicted occurred on the 17th of June 1963 when the defendant attempting to be seated and served in Leb's Restaurant in Atlanta, Georgia, failed and refused to leave the restaurant after having been asked to do so by the manager of the restaurant. The indictment against the other 19 defendants contained identical allegations to the Rachel indictment with the exception that in some instances, the misdemeanor was alleged to have been committed on another date and at a different restaurant. On February the 17th, 1964, the defendant Rachel and the other 19 defendants filed a petition for removal in the U.S. District Court for the Northern District of Georgia under the authority of Sections 1443 (1) and (2) and 1446, Title 28 U.S.C. The petition alleged that Georgia was by a statute perpetuating customs and serving members of the Negro race in places of public accommodation on a racially discriminatory basis and on terms and conditions not imposed on white race. Also, they were being prosecuted for acts done under color of authority derived from the Constitution and laws of the United States and for refusing to do an act inconsistent therewith. On February the 18th, 1964, United States District Court Judge Boyd Sloan, remanded the cases to Fulton County Superior Court stating that the petition for removal failed to allege sufficient facts for removal of the case to the federal court system. On March 5th, 1964, the defendants filed a notice of appeal from the remand order to the Fifth Circuit Court of Appeals. And on the 12th of March, the State of Georgia filed a motion to dismiss the appeal. And the defendants filed a motion to stay the remand order pending the appeal before the Fifth Circuit. On that day, a hearing was held before a three-judge panel and a stay was granted by a two to one division of the court. On the 5th of March 1965, after hearing oral argument, the Court of Appeals by a divided three-judge panel reversed the judgment of the District Court and remanded the case to the District Court with instructions to hold a hearing and to dismiss the prosecution if it established that the removal of the defendants from the various places of public accommodation was done for racially discriminatory reasons. A timely petition was filed by the State of Georgia for rehearing en banc and this was denied on April 19th, 1965 and this Court granted certiorari on October the 11th, 1965 on three grounds with which we are concerned here. First, the Court of Appeals had no jurisdiction to consider the appeal because the notice of appeal of the remand order was filed six days beyond the 10-day time limit required by Rule 37 (a) (2) of the Federal Rules of Criminal Procedure. Secondly, that the petition for removal failed to allege sufficient facts or valid ground for removing state prosecutions to the Federal Court, and third, the Court of Appeals aired in directing the District Court to look for only one criteria on the hearing and to dismiss the state court prosecution if that single element was found. That element of course is that the arrest and removal of the defendants from the various restaurants in Atlanta, Georgia was done because of race discrimination. If it pleases the Court, I would like to limit myself only to the first consideration that being the Rule of Criminal Procedure 37 (a) (2) and leave the latter two questions to Mr. Sparks my co-counsel. It is our contention that Rule 37 (a) (2) of the Federal Rules of Criminal Procedure apply to this case and apply to all appeals from criminal prosecution either before verdict or after verdict. By Act of February 24th, 1933, as amended, this Court was given the authority to prescribe rules of practice and procedure after verdict finding of guilty by the court if the jury was waived or pleas of guilty. On May 7th, 1934 pursuant to the above Act, this Court promulgated 13 rules which they entitle “Rules of Practice and Proceedings” after plea of guilty, verdict of guilty, or finding of guilty. Rule 3 of this Rules which is the predecessor to Rule 37 (a) (2) stated that an appeal must be taken five days after entry of judgment of conviction. Now, I call to the Court's attention the language entry of judgment of conviction because I believe that by the use of this language and by the title of the 13 rules, it is clear that these 13 rules apply only to after verdict appeals. By Act of June 29th, 1940, Congress gave the court authority to prescribe rules of practice in the criminal cases prior to and including verdict, finding of guilty or not guilty by the court. This Act required that these rules should be reported to Congress before they became effective. And pursuant to this Act, this Court have promulgated Rules 1-31 and 40-60 of the Federal Rules of Criminal Procedure by order dated December 26, 1944. These rules were submitted to Congress and became effective on March 21st, 1946 as provided by Rule 59. By an order dated February the 8th, 1946, the court prescribed Rules 32-39 pursuant to the 1933 Enabling Act, allowing the court to promulgate rules after verdict and pleas of guilty. The court made these rules effective on the same date that they made Rules 1-31 and 40-60 effective. Also, by this order, the court instructed that these rules be titled the “Federal Rules of Criminal Procedure” and that all 60 rules should be consecutively numbered. I think that it is clear from this February 8, 1946 order that the Supreme Court intended that Rules 1-60 should serve as a complete set of criminal rules of procedure. This is manifested by all the rules becoming effective on the same day by the title of the Federal Rules of Criminal Procedure and also by the fact that the court had them numbered consecutively. Also, Rule 1 of the Federal Rule state the scope of these rules and that is that they are to govern the procedures in courts of the United States in all criminal procedures except as listed in Rule 54. It should also be noted that Rule 54 specifically applies the rules of criminal procedure to remove proceedings. Also, Rule 57 further outlines the purpose of the court and that it states that these rules shall govern all criminal proceedings thereafter commenced. Now, I believe that if the court had intended to separate Rules 32-39, and 1-31, and 40-60 into two separate categories, it would not have gone to the trouble of numbering the rules consecutively, entitled -- titling them as they did, and making them effective on the same day. Also, it seems to me that these rules were prepared by an advisotory committee appointed by the Supreme Court, and so, we cannot say that this is a case where the left hand did not know what the right hand was doing. The court would have been explicit in separating the two rules if they were to retain the before verdict and after verdict limitations. Now, I submit if the distinction ever existed as to the applications of Rules 32-39 to limit that only to after verdict appeals, that this has been rectified by the enactment of Title 18 of United States Code. This Act was entitled “An Act to Revise and Codify and Enacted into Positive Law Title 18 of the United States Code”. All sixty rules of criminal procedure are embodied within this title. Rule 37 (a) (2) specifically incorporated by reference in Section 37 and 32 of that Title. And I think it's clear, as I've said before, by the title of the rules, by them being numbered consecutively, and by them being enacted to take effect on the same day that the court intended that these rules would cover all criminal proceedings. And I think that the purpose of Title 18, which states that Title 18 was the culmination of several years work and that every provision has been brought down to date, and the laws have been rearranged and the language modernized and simplified, and that many provisions were combined and overlapping eliminated, I think it is clear that the revisers undoubtedly realize what the purpose of the Supreme Court and the intention of the Supreme Court was in promulgating Rules 1-60. And I think that the enactment of Title 18, which incorporates the entire set of sixty rules of Federal Criminal Procedure, is an acceptance by Congress of that court's intentions. Furthermore, I suggest to the Court that Rule 3 of the old rules which limits appeal to five days after entry of judgment of conviction and comparing it with Rule 37 (a) (2) which allows 10 days for appeal after entry of judgment or order appealed from, further manifest the intention of the court. Entry of judgment of conviction clearly purports that these rules were to apply to after verdict appeals. However, by changing the language into leading judgment of conviction to judgment or ordered appealed from, they have removed the language of limitation and I believe have opened the rules to a wider scope than what they had under old Rule 3. Furthermore, 37 (a) (2) provides that the United States has a right to appeal as authorized by statute and that that appeal must be taken within 30 days after the entry of order or judgment appealed from. Now the Government has authorized a right to appeal, one, when -- on a decision or judgment setting aside or dismissing any indictment. Two, on a judgment setting aside a conviction because of insufficiency of the indictment. And three, where the defendant has not been put into jeopardy and a decision sustaining a motion in bar. Now, one and three of these situations are before verdict appeals. Only number two is an after verdict appeal. Also, 18 U.S.C. 1404 allows before verdict appeals on motions to suppress evidence in certain narcotics cases and Internal Revenue cases. In fact, I believe that we can say that it is the rule rather than the exception that if the Government has the right to appeal, it is in before verdict circumstances. Therefore, I think that by including this language in 37 (a) (2), we have again manifested the court's intention that 37 (a) (2) apply both to before verdict appeals and after verdict appeals. Now, I think it can be argued that 1404 and 3731 which gives the Government the right to appeal within themselves carry a 30-day appeal provision. However, I do not believe that this lessens the effect of 37 (a) (2). I think that 37 (a) (2) can well be viewed as being a backstop or insurance for any appellate proceedings that might be given to the Government and the fact that 30-day provision is included in 1404 and 3731 of Title 18, does not in anyway lessen the effect of 37 (a) (2). I will concede that -- well, let me state first that the Fifth Circuit in holding that the appeal was timely filed, unfortunately did not see fit to state what rule is applicable. Therefore, I believe, we have to accept one of two things. Either there is no time limit for filing an appeal in this case or the civil rules, Rule 73 (a) which would allow 30 days to file has to be accepted as being the rule that we're concerned with here. I believe that neither of this -- either of this is true, I think 73 (a) is clearly not applicable because it by its own nature states that it is limited only to a -- to the case of a civil nature. Now, we come then to the alternative that there is no time limit for filing an appeal. I don't believe that this is true. Now, the defendants or the respondents suggest that mandamus is the appropriate method of review in this case. But I do not believe that mandamus is the appropriate method here. I believe that this Court and the Court of Appeals have the right to issue mandamus relief under 1651 of Title 28 under the old section. But I don't believe that we should be concerned with whether the power exists but whether or not this case is an appropriate case for the exercise of that power. Traditionally, mandamus has been used to confine a -- inferior court to an exercise of its lawful jurisdiction, or on the other hand, to compel it to exercise that jurisdiction whether it is its duty to do so. In Bankers Life and Casualty versus Harlan, the District Court ordered a severance and transfer of a case because of improper venue. And this Court held that mandamus was not the proper method of review because the decision of the lower court on a question of law decisive of the issue was made in the exercise of that court's jurisdiction, to decide issues properly brought before it. In its decision, even if erroneous, involved no abuse of judicial power and therefore, it was not reviewable by mandamus but reviewable instead by appeal. In Roche versus Evaporated Milk, this Court held that, again, that the lawful exercise of court's jurisdiction involved no abuse of discretion or usurpation of power. And Roche further set down three points, guidelines of which the Court should use in determining whether the extraordinary remedy of mandamus lie. And those guidelines were that the trial judge act within his jurisdiction, did his act or omission, thwart or tend to thwart appellate review, and third, that mandamus could not be used as a substitute for the appellate procedures prescribed by statute. And I submit that the case that we have here is exactly in point with the Roche case and with the Bankers Life and Casualty Company and also with -- in Ex parte Roe. What Judge Sloan had done here was to do exactly what he was required to do, and that is to rule upon the removability that was before him. He was in -- since exercising his jurisdiction -- and as exercising that jurisdiction, he made the decision to remand them back to the state court. He had not usurped any of his power. He had not abused any of his discretion. As I say, he has fallen immediately within the guidelines of the Roche framework that is he has not afforded appellate review because appellate review has been provided. I believe that under 1447 (d), the remand could be properly reviewed on appeal. Also, the remand could be taken up to the state court system, and after going to the state court system, then come for a final review to this Court. So, there has been no affording of appellate review in that sense. Furthermore, the appeal procedures provided are quite adequate and I think this is well attested to by the number of cases that has been cited in the petitioner's brief that have been brought before this Court and have been decided such as Neal versus Delaware, Smith versus Mississippi -- all reached this Court via the appeals route through the state court system and ultimately for final appeal to this Court. Therefore, I suggest to you gentlemen that 37 (a) (2) is applicable to this proceeding and therefore the cases should be -- the Court of Appeals should be overruled and the remand order of Judge Sloan sustained and that -- the case was allowed to be sent back to the Fulton County District Court.
Speaker: -- (Voice Overlap) arise to both of these cases?
George K. McPherson, Jr.: I'm sorry sir.
Speaker: Does the point you're now arguing arise from the case (Inaudible)
George K. McPherson, Jr.: No, sir. It does not. Now, this arises only in the Rachel case. I might also add --
Speaker: In taking over the issue we've got here, we can also (Inaudible)
George K. McPherson, Jr.: With the exception of the 37 (a) (2) which whether or not the appeal would be finally filed, but I might add that Judge Boyd Sloan has 81 other cases that are now before him in which he is waiting to rule upon, pending the outcome of the Rachel case.
Earl Warren: We'll adjourn now.


Philip Elman: No, sir. It is not a motion for a new trial. The Government is not asking about it.
William O. Douglas: Not for but I mean in substantive view.
Philip Elman: No, we are asking for a remand for the District Court. The District Court may explore the issues raised by these allegations in a furthered hearing. The motion to suppress --
Charles E. Whittaker: (Inaudible)
Philip Elman: Well, the motion to suppress was considered by the judge without a jury. It was a pretrial issue. It didn't -- the issue is collateral, the issue of guilt or innocence is not a new trial. We are asking -- we -- the Government's essential position is that on this record, there are sufficient -- there is a sufficient cloud that's been generated by these new allegations so that it should be removed and the proper tribunal for removing this cloud is the District Court which can receive evidence and can make a full exploration of the issues. We think that so far as the question of judicial administration is concerned, there's no -- really no difference between the -- the problem in this case and that in the Mesarosh case and the Remmer case and the Subversive Activities Control Board case.
Felix Frankfurter: Can it be said that the issue which is raised by this motion was in any way on issue at the trial.
Philip Elman: Well, the --
William O. Douglas: The only issue that (Inaudible)
Philip Elman: Well, the trial -- the trial court of course was considering the question of the validity of the disclosure there involved an inquiry into the motions of the disclosure to that extent and of course (Voice Overlap) --
Felix Frankfurter: I understand that.
Philip Elman: But the trial --
Felix Frankfurter: What you're saying, as I understand the Government's motion, it says here there is such corruption in the proceeding that the Court himself respect and do regard for what courts have thought should not allow this to remain without being inquired, is that it?
Philip Elman: We are -- we are saying that the grand jury and one of the defendants have made charges that -- in -- in effect, a fraud was perpetrated on the judicial process that the integrity of the judicial process is here at stake that -- in -- and a full inquiry is called for. We -- we don't think that this Court should make it. We don't think the Court of Appeals is equipped to make it. We think that on the showing that's made, the only disposition of the case that's -- that appears to us and we -- we are not arguing this as a matter of point as an interest because from the standpoint of the Government, the findings of facts made by Judge Lindley are amply supported by the evidence on this record. And if the Court were inclined to consider the case on this record which we do not argue, we would be (Voice Overlap) --
Felix Frankfurter: Well, you can't argue that. You cannot argue that at this time.
Philip Elman: At this time, we are not. We can argue but -- but if the Court should conclude not to remand the case, we would -- we would think that the one alternative that the Court should reject would be the alternative of leading and standing in full and final effect a disposition of the case by the Court of Appeals as to which they're now serious, substantial and unresolved charges with --
Felix Frankfurter: Well, we couldn't do that --
Philip Elman: -- with the product of perjury.
Felix Frankfurter: We couldn't do what you've just asked us to do in alternative unless we modify what this Court did in regard to the petitions and the cross-petitions for certiorari.
Philip Elman: That's right. But the Court -- whether the Court should --
Felix Frankfurter: Well, I'm --
Philip Elman: -- do that and not (Voice Overlap) --
Felix Frankfurter: I'm not saying it can. All I'm saying is we have to, wouldn't it?
Philip Elman: Yes.
Felix Frankfurter: On the present, the way -- the way the petition and cross-petition was dealt with, that issue is not now open unless this Court -- assuming he doesn't do what the Government asked to be done, it would have to modify what it previously -- how it previously dealt with those petitions.
Philip Elman: Well, in view of the Court's action on -- on the petition, I have attempted to avoid liking any arguments on the merits.
Felix Frankfurter: I just want -- whether you agree or not that on -- as the -- as the disposition of the petition and cross-petition stand, we couldn't review without modifying our disposition. We couldn't review the merits of what the Court of Appeals did.
Philip Elman: I think as it now stands your -- your alternatives or either to send the fact to the District Court or the lead standing if I --
Charles E. Whittaker: This Court?
Philip Elman: -- the decision of the Court of Appeals despite the fact that these charges have been made leaving them unresolved, from our point of view, we think that there's a cloud here that has to be dissipated this -- simply as a matter of judicial administration.
Speaker: In other words, we should (Inaudible)
Philip Elman: Well, I -- I would hope that would be so, I wouldn't be altogether certain in view of the doctrine which was disparagingly referred to you yesterday as the law of the case.
Felix Frankfurter: Well, that --
Philip Elman: If the Court of -- if the Court of Appeals' decision is there and the petition in certiorari has been denied and the -- the Court of Appeals held that the motion to suppress should be granted. The Court of Appeals --
Felix Frankfurter: Unless this --
Philip Elman: -- directed a new trial. This -- the Government does not have (Voice Overlap) --
Speaker: (Inaudible)
Philip Elman: Pardon.
Speaker: (Inaudible)
Philip Elman: Well, I -- unless this Court where to make it perfectly clear that that procedure was open. I should think that the -- there might be some litigation on the question of whether the decision of the Court of Appeals was final. But as to that, let me say that we think that the situation here is very much like the situation in Mesarosh where this Court was able to determine on the basis of the showing made by the Government that there was no -- that a remand to a lower court would -- would be time consuming. This -- if the case were remanded to the Court of Appeals and assuming the question would be open, Mr. Christensen and I would be briefing and arguing the very question that is now here whether the case should be sent back to the District Court. That -- needless time would be consumed in a criminal proceeding which has already lasted since March of 1952.
Felix Frankfurter: And you could come here or the other side could come here depending on what the Court of Appeals did?
Philip Elman: It seems -- it seems to us that on the basis of what Your Honors have, there's nothing that the Court of Appeals will have because the Court of Appeals can't take any evidence as to these allegations any more than this Court can. On the basis of what you have, you've got a substantial taint on the record in the criminal case. You have allegations that the Court of Appeals was led to decide the case as it did because accredited testimony which a grand jury now says was part of a prearranged scheme to defraud the United States. Now, you didn't have that issue before Judge Nordbye to begin with. He was considering the -- the disclosure simply as whether it was sufficient or whether it's timely. The Government at that time didn't argue or present evidence to Judge Nordbye. This so-called disclosure was part of the scheme to fix the case that have involved corruption and involved bribery and involved perjury. We didn't argue that. We have no evidence at that time.
Speaker: (Inaudible)
Philip Elman: The grand jury indictment is only a charge. We -- we don't have any facts here. We have allegations of facts and the only question -- excuse me sir.
Speaker: No, go ahead --
Philip Elman: The question is whether these allegations which have been made by the grand jury as to this case should stand unresolved, should this Court -- should this Court leave -- either leave standing the disposition rate of this case that was made by Court of Appeals or should it do something else? Now, we -- these matters were submitted by the Government because it appeared to us, to raise a question as to how this Court should handle the matter whether -- on the basis of the present record, we petitioned for certiorari. We haven't in any respect abandoned our -- our position that the Court of Appeals on this record was embarking on a trial de novo that it was making findings of fact that contrary to those made by the judge who heard the evidence. That -- that is still our position but we don't -- we're not asking you to accept it at this time.
Speaker: If we granted the -- your petition for certiorari without limitation --
Philip Elman: Yes, sir.
Speaker: Then I suppose you would have been arguing or you are not to hear this case but (Inaudible) or to go back to the District Court for investigation of these charges.
Philip Elman: Yes, sir. I think --
Speaker: Made your argument reversed.
Philip Elman: I think if the -- the writ were now granted unlimited, we would also make the alternative argument to the Court. We're not suppose to follow that course but --
Speaker: You want to be heard.
Philip Elman: That we would -- we would want to be heard on the merits. It's not on the merits that the Court of Appeals should reverse.
Earl Warren: Mr. Elman, would you mind stating briefly what's your statutory foundation as for your position here?
Philip Elman: Well, we are relying on the broad provision incorporated in Section 2106 of the Judicial Code which I think is just a codification of the settled inherent power of this Court to remand the cause and direct the entry of such appropriate judgment, decree or order or require such further proceedings to be had as maybe just under the circumstances. Now, certainly this Court, there's a suggestion that there's nothing before Your Honors for review, but certainly, the petition for certiorari brought the case here for review and that -- that petition wasn't denied, it was granted but limited to the issues which are now being argued. Your Honors have a case before you that this Court has jurisdiction to this case. And the question is what disposition of the case would be just under the circumstances. Now, I -- I think it would -- the parts of the case would be exactly the same as if it were comparable in Mesarosh where certiorari had been granted. If -- if these matters had come before Your Honors after a grant of certiorari, we would be as Mr. Justice Harlan indicated in the same position, we would still not be asking this Court to review the cases -- case on the basis of this kind of a record. And I don't think there's any question of power.
Felix Frankfurter: What you're saying --
Philip Elman: The question -- the question is one of judicial management.
Felix Frankfurter: What you're saying is we didn't bring this case here in order to bring nothing here?
Philip Elman: Well, I -- I -- I'm saying --
Felix Frankfurter: What it would get down to (Voice Overlap) --
Philip Elman: I'm saying -- I'm saying that when the petition for certiorari was presented to the Court along with the motion to remand, the Court had before it, the choice of really three alternatives. The Court could have granted our petition in which case the case would have been reviewed on the basis of the present record. It could have granted the motion to remand or set the case down for argument on that motion and then -- and we were so disposed, grant the motion and send it back to the District Court. Or the third alternative that the Court would have, the alternative which -- for which -- which will be urged my Mr. Christensen speaking for all of the respondents except Mr. Huebner. That third alternative would be to deny both and leave the Court of Appeals decision where it founded despite the attacks -- well, that's not the right term, despite the -- the allegations which have been made that the foundation of that decision was infected with perjury.
Felix Frankfurter: There are two other alternative, if I may suggest.
Philip Elman: Well --
Felix Frankfurter: The one that Justice Harlan suggested in which you erase the difficulty and I think a real difficulty mainly, that if this Court dismisses this case as -- as though nothing was before it and I think a technical argument could be made on that fact in view of the way in which we dealt with the petition for which I do not wish to disclaim responsibilities as far as I have in the end as one person. But if what Justice Harlan suggested, it sent -- its dismissal is made here or the case is sent back where dismissal is made here and it is explicitly stated that it should not be the so-called law of the case that is without prejudice for the Court of Appeals to be allowed with this motion on the merits. That's another alternative.
Philip Elman: Yes, sir. That --
Felix Frankfurter: Another alternative is if we have granted, we could have granted the motion there, the Government's petition of certiorari. We could have granted what the Government there asked us on the merits, namely, to review the Court of Appeals held that petition and the interest of judicial decency sent this particular aspect of the case to the District Court for determination. That would have been another alternative.
Philip Elman: I think all of those alternatives are open to the Court as a matter of power, if I may answer you question, Mr. Chief Justice. I believe there's no question as the Court's power. The question is -- which will best serve the interest of justice and we think that the faster this case gets back to the District Court which -- which heard evidence in the trial lasting so -- so many weeks and had a hearing on this very motion to suppress and saw the witnesses and saw the case unfold. That Court and that Court alone is in the position to determine what disposition should -- should now be made of these matters. Now, I -- I think if the case went back to the Court of Appeals, that Court would have nothing that Your Honors don't have. And -- and we are not coming to you with facts, we're coming to you frankly with -- with allegations but they're serious allegations and they go to the very heart of the judicial process.
Hugo L. Black: May I ask you this. Suppose it -- just to find out exactly what is here. Suppose these were not -- you didn't have this particular situation. The Court of Appeals had held that he should be acquitted -- held that he should be acquitted because his testimony showed he was honest. He was satisfied. He didn't have enough conviction. And the Government would have come in and say, “Well, before that's done, before you pass on, we pass on, before you pass on the point that the record show, we have a great deal of evidence to show that he was perjurer and a liar and we therefore want the case remanded to the District Court before it passes on the -- this record to make him with this conviction, to determine whether or not this new evidence we have that he's a perjurer and a liar is correct. Could you do that?
Philip Elman: Well, I think -- I think if the case were still in the Court of Appeals, there would be no question about it. If the case were in this Court, it would be a question as to whether this Court should remand that matter to the Court of Appeals or the District Court for determination but I -- I wanted to --
Hugo L. Black: But suppose the whole record, you -- suppose you are compelled to admit and the Court decided that on the record as the case was tried, the -- the defendant was entitled, have the case vacated and dismissed. It was --
Philip Elman: Well --
Hugo L. Black: -- because of no additional evidence. Your argument was that shouldn't be done because you knew now you could get more evidence that he -- that he referred to use that and you could show that to the Court. Could you do that?
Philip Elman: Well, I want -- I want to emphasize that --
Hugo L. Black: This is a (Voice Overlap) --
Philip Elman: -- for the Court of Appeals -- the Court of Appeals in that case has entered the judgment which is before this Court for review. It's not a final judgment of acquittal. You have no question of double jeopardy as you had the other day. That's a judgment which is before the -- this Court for review. In that situation, it would seem to me that if representations are made for this Court, which are substantial enough to justify Your Honors in concluding that a fraud was perpetrated on the Court of Appeals, I should think, Your Honors will want to do something about it. I should think you would have the power at least to remand it to the Court of Appeals.
Hugo L. Black: I think I'll express myself there fully on that in a civil case and a patent case where we held and I wrote the opinion that there was an inherent power of the Court to set aside judgments obtained by fraud on the Court. The reason I'm asking you this is because according to the facts, I don't know -- I don't know why it's confronted. I don't know -- I don't say that it happens a lot. What -- this being a criminal case, I suppose, the Court was right that there wasn't enough evidence to convict the Court of Appeals. It comes up to us and the Government said “Well, we have additional evidence and it's not in the record which shows this defendant was a perjurer.” And without regard whether the record now entitled him to reverse it, we want the case remanded to have the District Court decide this new evidence as to his perjury. Would that be similar to this or what would be the distinction?
Philip Elman: Well, I think -- I think what may be troublesome in the hypothetical case you put is this. If you have an acquittal, if you got a jury acquitting --
Hugo L. Black: I'm not talking about acquittal.
Philip Elman: But -- but that's -- that's what troubles -- what seems to me to be the source of difficulty. If you got an acquittal and the jury acquits a man on the basis of perjured testimony and of course that's the end of the matter. The Government can come up later. Now, there's a big difference between a jury acquitting the defendant and the Court of Appeals on the review of a conviction entering a judgment whether it's a judgment directing a new trial or a judgment directing the case be dismissed or what. That judgment presumably would be subject to review by this Court when this Court's review attaches, the Court has full power to make a just disposition of it without impairing any constitutional right of double jeopardy or anything of the sort. Now, if -- if the Government in that hypothetical case or just to say “Well, we've got new evidence and nothing more --
Hugo L. Black: No, I didn't say that. They -- they say --
Philip Elman: I think it makes a difference what kind of new evidence there is.
Hugo L. Black: They say that we have -- with that regard -- don't look at this record -- to say immaterial to look at this record, we will assume if we have to assume here that the Court of Appeals is right of saying if there was not enough evidence to sustain the conviction on the basis of that.
Philip Elman: Well, there'd be a judgment on the merits. And you'd be deciding --
Hugo L. Black: But you -- you -- then your distinction is if you draw it. I assume that this was on a preliminary motion in regard to the evidence.
Philip Elman: Well, I -- I think in this case, you don't have the problem of acquittal, the jury. This is -- this is a pure -- a question purely for the judge sitting without the jury. Judge Nordbye can hear evidence in this case tomorrow if you were so in kind, the parties were ready without reconvening -- convening a new jury without having a new trial. The purpose of the remand here would be comparable to the purpose in the -- in the Remmer case. There was a -- there was a doubt generated by the record as to whether justice had really been done. And then this Court in the exercise of its supervisory powers was sending the case -- would be sending the case back to the lower court to find out what the facts were and do what the facts and what the law and what justice required.
Hugo L. Black: Well, there's no double jeopardy there with reference to the Government. I doubt if the measure of the case, if the other case by the defendant were granted this privilege could be held as authority for our action here. Now, maybe there's something else can but that's what I'm trying to focus your attention on. Let's suppose that we looked over this record, we reach the conclusion that it just wasn't enough to convict him. And the -- the Government said, “Well, even though there wasn't enough to convict him, I don't want you to order the case dismissed because we have more evidence here.” It seems to me that's about the question you have here.
Philip Elman: If I may -- if I may comment on that, I'd like to -- I don't think that is this case because in this case, it isn't a question of the insufficiency of the Government's evidence. It is the Government which prevailed in the trial court on this issue where the -- where the --
Hugo L. Black: But it hasn't prevailed in the Court of Appeals. The Court of Appeals (Voice Overlap) --
Philip Elman: And that it's not because (Voice Overlap) --
Hugo L. Black: And under my -- under my set of assumptions, it couldn't prevail here on the record as it now is. Let's assume that the record as it now is to be examined by this Court and we reach the conclusion that the Court of Appeals' judgment should be affirmed with reference to that as being turned loose -- they're being turned loose. Then you said, “But we have evidence that there was fraud committed by these people on the Court.” Would that justify in -- or that reason alone sending the case back to the District Court?
Philip Elman: But this isn't the case, Mr. Justice Black, where the Court of Appeals found that we didn't have enough evidence. This is a case where the -- where the Court of Appeals found that the defendants had evidence and that that evidence should be accepted as true and --
Hugo L. Black: Well, is there any difference in that so far as the --
Philip Elman: Yes because --
Hugo L. Black: -- double jeopardy question is concerned.
Philip Elman: Well, I -- I don't think the double jeopardy question arises unless you've got a jury equivalent. And from our point of view, the case being here, this -- this Court in the exercise of it -- of its powers could -- could make the disposition that we suggest, but I -- I don't think that anyone has urged that would violate. Double jeopardy would be subjecting a man to a second trial twice for the same offense anymore than the Court of Appeals disposition in this case sending it back to the District Court for a second trial by the constitutional rights of double jeopardy.
Hugo L. Black: Maybe -- maybe that is not double jeopardy but the problem I have in my mind is just wholly a problem --
Philip Elman: It's a real (Voice Overlap) --
Hugo L. Black: I do not know. But the problem I have in my mind is that if you didn't have these question and we found that what the Court of Appeals did, would it be our duty in your judgment to send the case back on new trial or to reverse and order it dismissed, which -- which would be the proper order?
Philip Elman: Well, I don't -- I can't concede that in this particular case any appellate court would -- would direct dismissal of the -- of the indictments. The only issue here is whether certain evidence should be suppressed for use at the trial. There was no question at all that the evidence presented at the trial would sufficiently support the conviction --
Hugo L. Black: Without this evidence?
Philip Elman: No, I -- I would not argue that without this evidence, the conviction would be sufficient because I -- I just don't know how much evidence would remain. But I do concede that if the Court of Appeals is right in its premise that this motion to suppress should have been granted then the proper disposition was a new trial and not a dismissal of the indictment. Mr. Chief Justice, I would like just a second to answer further Mr. Justice Whittaker's questions as to --
Earl Warren: You may.
Philip Elman: -- as to the (Voice Overlap) --
Earl Warren: You may.
Philip Elman: -- as to this fabricated figures and the destruction of records. When -- your question was first asked as to whether the records that were destroyed related to both the black-market payments and the receipt, I answered that they did. I -- perhaps, this led you later on by retracting that answer. I --I now stand on my original answer. We had checked the records. The records were destroyed by the defendants related to both what they got and what they -- unless they paid out. And the record references are on pages 11, 16, and 17 of our brief.
Speaker: (Inaudible)
Philip Elman: I misled you.
Speaker: (Inaudible)
Philip Elman: We -- we have thought it was immaterial.
Earl Warren: Mr. Christensen.
George B. Christensen: May it please the Court. I don't want to waste very much of my valuable time on preliminary matters but I would like to pick up what Mr. Elman left off. Number one, when this disclosure was made, every single item of gross income was disclosed. You will find in you records these photostatic reproductions that show every single item of alleged gross income that has ever been called into question. Number two, with respect to the so-called destroyed records, a thing that was greatly amplified by Judge Nordbye, it was not records, it was one record and as best it is described, it was a little foolscap piece of paper that had on it some notations covering a portion of the time in which over-ceiling payments were received and over-ceiling payouts were made. Precisely, what its contents were, no one knows except those who made it and they did not explain it in any great detail. It could not in any event have been material. Now, that's enough for that. And remember always that this disclosure was made in the year 1948 when the Treasury maintain and said in so many words not by oral testimony alone but by the published regulations of the Commissioner of Internal Revenue that we will allow no credit or your so-called over-ceiling payouts for raw material. And I don't care what the perjury lawyers now say about how agents had to investigate how this money was spent. The published regulations prohibited every agent of the Treasury from 1948 until after this indictment in 1942 from allowing a taxpayer one dime of credit for anything spent on the black-market no matter if he came in with gold engraved receipts to show who he paid it to and what he paid it for. And the Court of Appeals was imminently correct and it used the only term that could possibly use when it said that the Treasury disavowed this disclosure simply because it was trying to get these taxpayers to turn informer on the recipients of their payments who of course might have proved to be tax violators.
Charles E. Whittaker: Mr. Chris --
George B. Christensen: Now, that's all there was to it.
Charles E. Whittaker: May I ask you?
George B. Christensen: Yes.
Charles E. Whittaker: Is that matter in issue here?
George B. Christensen: No, it is not. I say these are preliminary matters but they came up and they apparently had been troubling some members of the Court and I wish to lay them at rest. Now, as to the disclosure policy which is not precisely an issue as the argument has developed, I think Mr. Elman has embroidered that considerably by his reference to the statement saying he had to have good faith, he had to make a full disclosure and do this, but I'm not going to rely upon memory. But here is what the Secretary of the Treasury said about it. The simple statement -- this was his announcement, the simple statement “I have filed false tax returns and one who make the Government whole, constitute a complete disclosure.” Now, later on, you've got to go in and get the tax straightened out. The Treasury always has the right to make its own investigation. Once you took them off, there was something wrong. Measured by that test, the simple statement “I have filed false tax returns and want to make the Government whole would constitute of complete disclosure”. There can be no doubt when these people went in and said they have filed false tax returns and offered and had been offering from that date of this to pay their taxes. There can't be any doubt they made a good disclosure.
Felix Frankfurter: I suppose I ought not to take your time on irrelevancy. But is it the same to say we've made false disclosures period and making disclosures which themselves are false. There's a difference, isn't there?
George B. Christensen: Well, they are different but that's not the case before it.
Felix Frankfurter: All right.
George B. Christensen: That's not the case (Voice Overlap) --
Felix Frankfurter: Suppose you and I agree that this isn't before us at all (Voice Overlap) --
George B. Christensen: Theoretically, that would be true.
Felix Frankfurter: Is that all these people said they came in and said Mr. Treasury --
George B. Christensen: No.
Felix Frankfurter: -- we filed -- we made false disclosures period.
George B. Christensen: No, they --
Felix Frankfurter: And for the rest, we just tell you that you --
George B. Christensen: No, they didn't --
Felix Frankfurter: -- you can follow that saying.
George B. Christensen: They did a lot to more than that Judge --
Felix Frankfurter: Very well.
George B. Christensen: This is the most complete disclosure that I think you will find recorded in all the disclosure cases on the books.
Felix Frankfurter: Well, I'm suggesting is taking even your statement and your quotation from the then Secretary of the Treasury. It's one thing for delinquent taxpayer to say, (Inaudible) I have not filed an honest return and go ahead and send your people in.” And another thing, to give figures which partly are false and partly suppressed the truth. That's the very different thing, isn't it?
George B. Christensen: Yes, but that's again not this case.
Felix Frankfurter: Well, I don't know what the case is and I'm not going to pay any attention to that problem.
George B. Christensen: Well, all right. We can lay that -- that particular problem aside then I think. Now, the -- it's a very disconcerting thing to be admitted to the bar, the Court one day and the next day stand up and look at the Courts acquiring the base and say it has no jurisdiction. But that is the position that I find myself in. The order that was entered here, denied certiorari, you have nothing for you -- before you for a review. You have a naked motion.
William J. Brennan, Jr.: Why do you say denied? That's not the point (Inaudible)
George B. Christensen: Well, that is not the form Justice Brennan, but when you read that order you -- I can't see that in substance it's anything but a denial when you say we are granting certiorari but limiting the issue to a matter that isn't covered by the petition for certiorari. Now, that is --
William J. Brennan, Jr.: Not even by extension you think?
George B. Christensen: Well, I don't know how -- how you can do that. You -- you -- to inform your order is a granting of the Government's petition for certiorari.
William J. Brennan, Jr.: Well, except that the questions on the Government's petition included, the question is whether the Court of Appeals there and misapplying the so-called voluntarily disclosure policy of the Treasury Department with the circumstances of this case. Now, in fact does not the motion concerned itself with allegations which it go to the question of whether the Court of Appeals did or didn't misapply the so-called voluntary disclosure policy?
George B. Christensen: No, I would think not. It doesn't go to a pleasant thing that the Court of Appeals did the motion to remand as amended says, “This is the prayer. This I take it is what basically is before the Court.” We submit that the interest of justice would be served by remanding this case to the district or a further hearing to amplify the record by enabling the parties to present new additional evidence on the timeliness of the alleged disclosure. After such hearing, the District Court would make such further findings and orders if any of the facts the law may require.
William J. Brennan, Jr.: Well, that is the concern though --
George B. Christensen: Now, that -- that does not go. It's true the case involved the disclosure in the Court of Appeals. But as I read the prayer of that motion, I do not see how I can fairly be said that they are attacking anything that the Court of Appeals did. They are saying, “We want another goal with this people.”
Speaker: Mr. Christensen, supposing this Court has granted the writ of certiorari without limitation and then as an instance to grant and read the Government's motion to remand, you have no question if Court could remand there?
George B. Christensen: Oh yes, we do.
Speaker: You have questions about that?
George B. Christensen: You're dealing here with a criminal case.
Speaker: As a matter of jurisdiction? I'm talking about jurisdiction.
George B. Christensen: Well, I perhaps -- I don't want to bet any words with you. Let -- let me answer it this way.Ever since United States versus Sanges, in the entire history of this Court, insofar as I know Anglo-Saxon jurisprudence. In a criminal case, the sovereign gets one goal at a citizen.
Speaker: Wait a minute. You're not answering my question. My question is addressed to power to consider the Government's motion which is the point you're making.
George B. Christensen: Well, that's about -- I've said, I perhaps didn't follow you. No, I don't think --
Speaker: There (Voice Overlap) wouldn't be any question there as to the power to consider whether we should grant it or not. It's another question.
George B. Christensen: Well, no more than you -- than there is a question of your power to consider -- to consider it now. But I don't think there is any authority for once the -- there is no criminal appeal provided the United States for a new trial on the ground of newly discovered evidence. Sanges says you can't have a second go at a citizen. You held unanimously last June in Carroll versus the United States that the powers of the sovereign to seek a new trial were very limited there.
Felix Frankfurter: That is a statutory decision.
George B. Christensen: Yes. And you -- you construed the statute very narrowly in the light of the common law history.
Felix Frankfurter: But this appeal -- this is a criminal appeal.
George B. Christensen: Yes.
Felix Frankfurter: And in your reply, in your response to the Government motion, you didn't remotely suggest you wouldn't, you're too good a lawyer but the Government cannot appeal from the adverse decision of the Court of Appeals. That happens all the time.
George B. Christensen: Yes.
Felix Frankfurter: And all the case coming from your jurisdiction, the famous Johnson case.
George B. Christensen: That's correct. Now --
Felix Frankfurter: Now, the Government does has one goal. That is an illegal way of stating out (Voice Overlap) situation, is it?
George B. Christensen: I am not speaking in legal parts.
Felix Frankfurter: But that's why we're here. We're talking lawyers. (Voice Overlap) --
George B. Christensen: What you have here and we have said it repeatedly in our briefs, is a motion for a new trail whether it is presented to this Court, the Court of Appeals or to the District Court. The essence of what the Government is asking you is precisely what Mr. Justice Black put his finger on a while ago. It's a new trial.
Felix Frankfurter: You have to establish that proposition. That is an axiomatic thing but this is a motion for new trial. I think it isn't remotely a motion for a new trial.
George B. Christensen: Well, I think -- I think --
Felix Frankfurter: So, you don't -- it is an axiomatic proposition that this motion is a motion by the Government for new trial after acquittal, is it? Is that an axiomatic proposition?
George B. Christensen: I think it virtually is under --
Felix Frankfurter: All right.
George B. Christensen: -- broad definition (Voice Overlap). Now, they say it's not. They say we would merely want to put in more evidence. But anytime you ask a court which has decided a combined issue of fact and law to change that determination after decision has been made, you say “I have new evidence I wish to give to you” which is what they are saying. You are asking for a new trial and a new determination.
Felix Frankfurter: They're asking that the Court of Appeals made a decision on a pre-trial motion which determination of that pre-trial motion, they say, “I do not know.” I couldn't possibly know is infected with perjury.
George B. Christensen: That's right.
Felix Frankfurter: That's what they are saying --
George B. Christensen: That's right.
Felix Frankfurter: -- which to me is a very different thing from a motion for a new trial. I couldn't think of anything more of it.
George B. Christensen: Well, I don't think there is any substantial legal difference between -- saying that record is bad because there was perjury or that record is bad because we now got new evidence.
Felix Frankfurter: We're not saying that the witness is at the trial which brought in a verdict committed perjury. That is what this motion is.
George B. Christensen: Yes. But they're saying witnesses at the -- whether the issue be determined by a jury or by a court. It doesn't seem to me to make any legal difference. They are saying the witnesses that Judge Nordbye relied on committed perjury. That's what they claim.
William J. Brennan, Jr.: Well, except -- except to Mr. Christensen. Actually, this is what happened. The conviction was based upon evidence which the Government was allowed to offer, after the defendant sought to prevent the Government from using it because it was supposed to have been within the disclosure policy. Is that it?
George B. Christensen: Correct.
William J. Brennan, Jr.: And now what the Court of Appeals has said was, “No. On this record, we think that the Government was and that Judge Nordbye should have held that the Government was stopped from using that evidence”.
George B. Christensen: Right.
William J. Brennan, Jr.: And now the Government come forward and has said, “But the witnesses upon holding the Government rely to show that we were not stopped.” Where in fact in a criminal fraudulent conspiracy with the defendants to give a version which is the version upon which the Court of Appeals relied whereas in fact we can establish that that's not the true version at all. And therefore, Judge Nordbye whether right on what was then before it, we can now show what's right in fact after we've had an opportunity to prove the facts which we now allege. Isn't that it?
George B. Christensen: I think that's a fair summation of it.
William J. Brennan, Jr.: Well, now, is that -- is that the old classical idea of newly discovered evidence. Is that a very different thing?
George B. Christensen: Well, I don't see that there is any difference with this horrible cry of perjury.
William J. Brennan, Jr.: But the evidence doesn't go to guilt or innocence of these defendants. It only goes to the question whether the Government shall be allowed to use the evidence upon which they in fact did secure from a jury or verdict of guilt.
George B. Christensen: Yes, that's -- that is true. But I don't think you can never arrive at the point where you're going to have a civilized system of jurisprudence. You can break a trial up and say that a subsidiary question that determines the admissibility of evidence will go at that two or three times, but on a question going to the precise occurrence or nonoccurrence of the crime that the sovereign can have only one goal at it.
William J. Brennan, Jr.: Well, how do you differ it from Mesarosh except that perhaps it's the other side of the coin in Mesarosh?
George B. Christensen: Well --
William J. Brennan, Jr.: The Government came in and said that we secure this conviction and we're now satisfied that the evidence which the jury heard was perjured evidence. And the Government doesn't want to stand by a conviction obtained in that way. Now, here the Government says and the fact these defendants have secured a reversal on admittedly sufficient evidence so far as -- I don't understand there was any claim made in the Court of Appeals that the evidence which sustained the conviction was insufficient with respect.
George B. Christensen: Oh, yes. The Court never -- the Court never --
William J. Brennan, Jr.: They never passed on that.
George B. Christensen: They never passed on that. They passed only on this issue. We have maintained that they should have passed on and they should have (Voice Overlap) --
William J. Brennan, Jr.: Well, now to get back to my question however. In fact all the Government saying here is we relied on certain witnesses, Busby and Sauber to establish that we should not be stopped. It now develops that the defendants here secure the reversal of their conviction because Sauber and Busby in conspiracy with Cain and others, gave a story which was not in fact true and we want to show that that's the case. But why isn't that Mesarosh?
George B. Christensen: Quite a different thing it seems to me Mr. Justice Brennan, to take a confession of error to a law enforcing officer. And he comes in and say “Here I have made a mistake. I think I have unjustly convicted this citizen.” And do what you did in Mesarosh regardless of how you do it whether it'd be done directly here or whether it'd be sent back to the trial court. It's very a laudable thing and is -- in keeping with the spirit of our law. It's quite another thing to allow a prosecutor to come in and say, “Now, I figured out some things and they say we didn't appreciate all our evidence and I want to have another goal with this -- at this fellow.” And an adversary of proceeding, I understand that to be except where statute provides for an appeal to the sovereign that once they defend that (Voice Overlap) --
William J. Brennan, Jr.: -- we didn't appreciate it. But didn't they say -- are they saying we don't -- we didn't appreciate our evidence at that time on -- we want a chance to practice it?
George B. Christensen: Yes, that's what they're --
William J. Brennan, Jr.: Are -- are they saying that or are they saying --
George B. Christensen: No, hypothetically.
William J. Brennan, Jr.: That we were -- well, I know, but (Voice Overlap) the substance whatever language they use, aren't they saying that in actual fact Busby and Sauber with Cain and the others worked this thing up to do the Government in on its insistence that it had the right to use it?
George B. Christensen: That's correct and I say this.
William J. Brennan, Jr.: Isn't that it?
George B. Christensen: If that be the fact, now, let's get down to a matter of policy. If that be the fact, if you assume on that, the Government is not without remedy, the Court is not without remedy, you don't start out the old case all over again. Clark versus the United States says that perjury does not lose the quality of contempt simply because it is perjury and you can indict these people for perjury and while we are talking about this tainted record. The fact is that that grand jury that you've heard so much about sat in Chicago from some date in April 1946 until two days after this Court entered its order on February 25 and then out came this great big voluminous indictment. Now, the coincidence of those dates is rather remarkable. This indictment was prepared somebody sitting down at a typewriter and writing it out between the time word was flashed to Chicago that the Supreme Court had as we say in effect denied certiorari and the 27th when it was released to the newspapers and sent out to these people. And that indictment does not charge these people with perjury. What Mr. Elman read to you were allegations of overt acts in this so-called conspiracy count. There is no direct charge of perjury against anyone of these people with respect to a single item of evidence relative to this disclosure. The perjury counts that are in that indictment, be they good or bad, relates solely to evidence that was given on the trial as to the merits and in effect what they are. They had the Government's chief witness was a man by the name of Lubben who has developed quite a reputation for perjury. You've heard about him in one of your earlier arguments. I believe Justice Brennan you insisted that the man ought to get disbarred up in your state because he's been mixed up with this fellow.
William J. Brennan, Jr.: He was disbarred.
George B. Christensen: And you got -- he's suspended I think. You voted for disbarment and the Court suspended him for five years or something. But in any event, the perjury in here is every time Lubben said one thing on the merits and our people who theretofore were citizens of unblemished reputations and the other, this new indictment says our people were guilty of perjury. Now, that's neither here nor there but that indictment was showed on the back of the story while this part was meditating what to do with the certiorari applications. And then it came out and when you read the indictment although they use the words perjury and bribery and all this in it. They are in the means of allegations or they are in the overt act allegations. There is nobody indicted for perjury here. Sauber is not indicted for giving perjured testimony on this suppression hearing. Busby isn't indicted. Cain isn't indicted. None of the witnesses who testified on this suppression hearing are indicted for perjury.
Felix Frankfurter: Mr. --
George B. Christensen: Now, that's the practical situation.
Felix Frankfurter: May I ask you this question? Suppose as Judge Nordbye's decision in favor of the Government and an appeal by you from his decision, seeking to reverse it. And before the case came on before the Court of Appeals of the Seventh Circuit, the Government move that Court on the following basis. It says, “We have not decided here that Judge Nordbye will be sustained by this Court. But it has come to our notice, circumstances which envelop the verdict which the Government has obtained with fraud which only reinforces the verdict which the Government has obtained.” You think the Court of Appeals would have no jurisdiction to grant that motion?
George B. Christensen: I do.
Felix Frankfurter: You do.
George B. Christensen: I think that when you have a criminal case, Your Honor --
Felix Frankfurter: But -- but he has lost, he has the criminal -- what do you call the criminal, the defendant has lost.
George B. Christensen: Yes.
Felix Frankfurter: The Government has a verdict.
George B. Christensen: Yes.
Felix Frankfurter: It isn't as taking anything away from him. It is things of the Court. We have additional matters which are relevant to reinforce a verdict against the defendant. And you say they have no power to grant such a motion.
George B. Christensen: I think so. I think --
Felix Frankfurter: That's double jeopardy, is it?
George B. Christensen: No. It goes beyond double jeopardy.
Felix Frankfurter: It's more than double jeopardy. It's triple jeopardy.
George B. Christensen: Well, I think that -- that a criminal case in all its brackets is tried on the theory that all the incidents of a trial take place up to judgement. Once that judgment be it of conviction or acquittal that that record is closed and ended and neither the trial court nor a court of review may open up that record and splice something new onto it to bolster up or support the result already achieved.
Felix Frankfurter: The defendant could, couldn't he?
George B. Christensen: I would think not.
Felix Frankfurter: You think not.
George B. Christensen: He would have to go back. He gets a new trial. Your rules provide him a new trial. He doesn't add additional evidence to support or the defendant wouldn't be appealing or going pretty fast in these questions. You may be getting me a little beyond my (Voice Overlap) --
Felix Frankfurter: Well, he was -- he was appealing in this case.
George B. Christensen: But here, the defendants were -- were convicted and appealed. Now, I don't think it makes any difference in the criminal case which way it goes. The trial is a unit. The mere fact that this was a pretrial suppression hearing, it seems to us, makes no difference. It is an integral part of the trial. The prosecutor proceeds at his peril and must put in his case. When it is in, it is complete and you don't let him go back either of the trial court or a Court of Appeal and add something on there and say, “No, this proves I was right all along.”
Felix Frankfurter: But you must have some legal grounds, double jeopardy I can understand. But overwriting the interest of a partisan unless it offends double jeopardy is the protection of the Court against being use for corrupt purposes which has nothing to do with the interest of the party, unless the vindication of the integrity of the Court makes some inroad on a constitutional principle.
George B. Christensen: Well, I think -- I think that the constitutional principle, the due process of law that has been recognized for centuries that a criminal trial can't be broken up and that it must be tried at one time is of equal importance to the purity of the courts. Now, the Court need not go on to them. The perjury has been committed. If perjury has been committed here and the Court had been defiled, this grand jury could have indicted Sauber and Busby and these people. There isn't any problem here about justice going on to then if that had happened or conceivably, it hasn't occurred currently to these gentlemen, but I would see no problem or whatsoever if this was true of the trial court proceeding upon the grounds of contempt. But once you depart from the principle, you try that criminal case and there it is. The Government has only such appeal as it's provided by statute. It has no right to a new trial to put on new evidence or they just discovered perjury or not. If there was perjury, indict for perjury and convict them if you can.
Speaker: That dealt with the defendants too?
George B. Christensen: No, the defendants by statute and by common law are given many rights from criminal cases and rightly so that the sovereign never has. The rule provides that a defendant may have a new trial. This -- this supports criminal rules and the laws of all the states. Now, the Government's right of appeal in criminal case is circumscribed by statute and circumscribed of course quite rigorously. And if there's a vital -- a vital difference and that it seem to me --
Felix Frankfurter: I agree with you on that.
George B. Christensen: It seems to me that -- that we are dealing here with a very serious principle. Once -- once you permit this sort of thing because there is the widest variation of fact testimony in criminal cases.
Felix Frankfurter: Just where do I find recognition of that principle? Just where do I find the principle that you stated that the Government is -- that the Court is barred from cleansing its own record regardless of what the party's to the enterprise want or do not want provided no constitutional principle is infringed. Where do I find the principle which seems to you common law and everything else?
George B. Christensen: I think you find that in United States versus Sanges.
Felix Frankfurter: Well, I know the United States versus Sanges for the whole of my professional life and all that says is that although there wasn't a determination on the merits, the Government is not allowed on appeal (Inaudible) unless the -- unless the statute gives an appeal. That's all that it says. That (Inaudible) indictment which goes against the Government, you can't appeal although it doesn't touch double jeopardy as a matter of construction just as this Court have said as matter of construction, will construe criminal statutes leniently. But where is the principle that when there is alleged and we must assume this is capable of proof that the judicial process had been sort that -- that this Court is powerless to deal with it. Where is that principle?
George B. Christensen: Well, I -- I don't say that -- and I said this Court has -- has ample powers to deal with but not in the original criminal case, not by letting him supply evidence into the original criminal case.
Felix Frankfurter: You say supplies. I say to leave a corrupt judgement standing on the books of the courts, standing on the books of this Court if we'd say we have no jurisdiction.
George B. Christensen: That -- if you assume those facts, that would be the fact and you then have to make your choice. Is it safer for society to run that risk or is it -- or to turn it into the hands of every prosecutor where there's a difference in testimony or it discovers new evidence to say perjury and start it all over again.
Felix Frankfurter: I'm not -- please don't -- I must convey to myself. I am not remotely suggesting that what the Government claims could be sustained on the proof.
George B. Christensen: That's right.
Felix Frankfurter: But I say for purposes of a jurisdiction, one must assume it.
George B. Christensen: Well, I would -- I would still suggest, Mr. Justice Frankfurter there is no -- I cannot point any more than my distinguished opponent has been able to appoint to any case that is ever passed upon this precise issue. I don't know that. Certainly the Government doesn't say it. And certainly, I can't dispute when you say that U.S. versus Sanges does not in term specify.
Felix Frankfurter: Well, in -- in essence -- in meaning --
George B. Christensen: The essence and means, I -- I read that as expressing precisely what I'm talking about. I think that is the philosophy of it and should be the philosophy of our whole system of Government. Now, that concludes our -- our time. I thank you for --
Earl Warren: You may -- you may have a few minutes more if you --
George B. Christensen: I think we have -- have --
Earl Warren: Have you?
George B. Christensen: -- towards the issues and (Voice Overlap) --
Hugo L. Black: I'd like to ask you one question --
George B. Christensen: Yes, sir.
Hugo L. Black: -- since the Chief has given you the time. I may say that I wish you had not talk so much about jurisdiction, as I see the point, it's not the point -- it's not the point of jurisdiction. What you are saying, as I understand it and I want to see if I (Inaudible), you say that the when the Government was on a criminal case, it must put on all its evidence that it covers.
George B. Christensen: Yes, sir.
Hugo L. Black: And if it does not, we'll take now first a verdict -- a verdict of guilt (Inaudible) that instance if the Government can't change it.
George B. Christensen: That's right.
Hugo L. Black: You say that rule apply where the evidence off -- the evidence offered which goes to the jury in considering which goes before the Court in connection with the motions such as the motion to suppress because of unreasonable searches and seizures and so forth. And it's the duty of the Government to present its evidence and even if there is a conviction that the Government is bound by that record with reference to that name if it hasn't put on all its evidence.
George B. Christensen: Yes, sir.
Hugo L. Black: And that under -- the -- the jeopardy you say has ended when that record is examined by the appellate court on the record that you said. Now, I'm -- I'm not saying your point is good or bad. It seems to me that issue --
George B. Christensen: That's what -- that's what we're saying.
Hugo L. Black: And that you are saying that since the Government should not be permitted after a conviction has -- after an acquittal has been -- conviction has been obtained. And the defendant desires to have that conviction examined in the appellate court on the record, the Government should not be permit -- permitted to add to that record evidence which it did not see fit or could because it didn't have anything else. That it did not offer in the original trial. And therefore, to permit that, would violate the rule of -- of double jeopardy in the -- the jury, the man was entitled to have the jury that tried him first to act on that with the absence of some emergency like a hung jury or cyclone or storm or something that knocks the Court down. And that your -- your claim that the rule with reference to the Government's duty to offer evidence is just as binding on to double jeopardy and when it examines a motion before the Court as though it was offered to the jury itself.
Speaker: Oh, yes.
Hugo L. Black: I -- I do not see myself in a point of jurisdiction. Maybe you do.
George B. Christensen: Well I -- when I was asking a question -- answer a question Mr. Justice Harlan. I think I was talking across purposes in using the language of jurisdiction. I -- we rest upon that the basic concept that you just put to us now if --
Hugo L. Black: Have you had any cases -- have you had any cases? Have you looked up to see if there are any cases? I assume that there wouldn't be -- I don't know. But I don't doubt as there'd be much dispute that the Government -- of the Government's view is to put on all its evidence in a case of the defendant's right to have that evidence, that record to his conviction, adjudged by the evidence standing before the jury. It seems to me that your dispute comes in connection with the motion by the Government here to remand in order to get everything in connection with the subsidiary motion made in the case.
George B. Christensen: Your Honor let me answer that this way. Our research may have been insufficient but we looked and searched and I am sure that the Mr. Solicitor General did and no one has come up with a case. There's a point on these facts and I think -- I think it is solid grain in the whole system of criminal jurisprudence, precisely what you're talking about no one has ever carried this kind of a point into a court the last resort where it's been reported.
Hugo L. Black: It seems to me that the issue you have --
George B. Christensen: Now, there maybe something at some state courts somewhere that we have missed.
Hugo L. Black: It seems to me that the issue that which you have say or you have raised is consistent with Mr. Justice Frankfurter's question with which I'm agreeable, in which he said, “You can't defy the Court of jurisdiction and protect itself from fraud in the absence of some constitutional barrier to setting aside a judgment.”
George B. Christensen: Well, I would answer that the same way I did that the right of a court to protect itself from a verdict or a judgment obtained by fraud of course must be protected. But the right to criminal process in accordance with our established processes, as a due process of law and not in violation of the double jeopardy provision is equally sacred and where the two come in conflict. If they do here, you still don't have much of a real problem in the administration of justice because the Court can be protected at any time and very adequately by an indictment for perjury and indictment for obstruction of justice in the precise question --
William J. Brennan, Jr.: Mr. --
George B. Christensen: -- by contempt actions. There are any numbers of means. The courts need (Voice Overlap) --
Hugo L. Black: As far as I'm concerned you can leave out the last one.
William J. Brennan, Jr.: Mr. Christensen before you sit down I'm not sure if it's an appropriate question. Don't feel that you should answer if you think you should not. As things presently stand, there's to be a new trial in this case.
George B. Christensen: That's correct.
William J. Brennan, Jr.: That was the disposition of the Court of Appeal.
George B. Christensen: That is correct.
William J. Brennan, Jr.: Do you carry the proposition which you have just been discussing with Mr. Justice Black so far as to say that on this new trial, if we should sustain your position on this motion that the Government would be stopped from using this new evidence in the new trial against these defendants before a new jury?
George B. Christensen: I don't think I can answer your question precisely as you put it for this reason. Well, I will tell you why. The mandate of the Court of Appeals is, I will not quote it precisely, but in substance it says, “The case is remanded with directions to grant the motion to suppress and retry the case.” Now, insofar as any of this new evidence goes to the question of suppression, I take it that that mandate would prevent use of that evidence for that purpose. If they have other evidence bearing on collateral features --
William J. Brennan, Jr.: Well, supposed Mr. Huebner for example would have testified now, now that he's gone over to the Government's side. He didn't testify on the motion to suppress?
George B. Christensen: No, he did not. He did not testify.
William J. Brennan, Jr.: You suppose the Government is to be denied under the proposition that you've been supporting? Do you (Voice Overlap) --
George B. Christensen: Well, I suppose that under the literal language of that mandate that even if Huebner was permitted to testify, any district judge would have to say I don't care what he testifies. The Court of Appeals has told me to grant the motion to suppress and I've got to grant it. Well, that is the literal -- because of that strong warning of that mandate. I don't see how a District Court could do anything else other than that. Thank you.