William H. Rehnquist: We'll hear argument next in No. 92-1441, Harold E. Staples v. the United States. Ms. De Angelis.
Jennifer L. De Angelis: Mr. Chief Justice, and may it please the Court: My client, Harold E. Staples, was convicted of knowing possession of a machinegun not registered to him, in violation of 26 U.S.C. section 5861(d). My client is asking this Court to reverse this conviction and remand this case for a new trial, a fair trial. The defendant respectfully contends that the first trial was not fair. It was not fair because the jury was prohibited by the jury instructions presented to consider whether or not Mr. Staples knew the sport rifle he possessed was, in fact, a machinegun. As stated by Justice Ebel in his concurring opinion, printed at page 24A of the Petition for Cert in this case, whether the appellant in this case is an innocent victim is an open question because the jury was precluded from considering his knowledge of the gun's capabilities. Principles of justice and fair play suggest that we let the jury decide whether the defendant possessed an automatic weapon. Prior to this criminal prosecution, the citizen before this Court had no prior criminal record, was engaged in no unlawful activity, certainly engaged in no unlawful activity in connection with this gun. And by all accounts--
John Paul Stevens: You say certainly he did not?
Jennifer L. De Angelis: --Certainly, he did not.
John Paul Stevens: Well, the jury thought otherwise.
Jennifer L. De Angelis: Prior to this criminal prosecution.
John Paul Stevens: Oh, I'm sorry. I misunder... I misunderstood you.
Jennifer L. De Angelis: Mr. Staples believed what he possessed... possessed what he believed to be... and the undisputed evidence, testimony of three other witnesses at trial, was that this legal semiautomatic weapon, operated only in semiautomatic mode prior to government seizure and test fire in January of 1990--
Sandra Day O'Connor: Well, now, counsel, I am somewhat concerned about--
Jennifer L. De Angelis: --Excuse me.
Sandra Day O'Connor: --the argument in your brief, and apparently one you're going to make here, that we have before us this issue of whether the defendant actually knew it was automatic. I thought the jury found that it was a machinegun, and the court of appeals did not overturn that finding.
Jennifer L. De Angelis: Justice O'Connor, I would disagree to the extent that the jury was precluded from considering whether or not the weapon was a machinegun. Because of the nature of the instruction, all the jury had to find was that the defendant possessed a device that was dangerous, and that dangerous device was likely to be subject to regulation. That's not the same as--
Sandra Day O'Connor: Well, I thought the jury had to find that it was a machinegun. They didn't have to find that your client knew of its capability.
Jennifer L. De Angelis: --They had to find it was a firearm, and technically--
Sandra Day O'Connor: And the firearm was defined in this instance, under this statute, as something that fires automatically with a single pull of the trigger.
Jennifer L. De Angelis: --That's correct, Justice O'Connor. There are--
Sandra Day O'Connor: And that was the finding and the court of appeals did not upset that. So we... we take that as a given, don't we?
Jennifer L. De Angelis: --When the trigger was pulled on this gun, the weapon fired multiple shots with a single trigger pull. If what you're saying, Justice O'Connor, is that constitutes a machinegun, then I would have to agree with your analysis of the Tenth Circuit opinion. However, how--
Anthony M. Kennedy: And if it were shown that this defendant knew of... of that capability, of that operational feature, then there wouldn't be really a case here.
Jennifer L. De Angelis: --That's correct.
Anthony M. Kennedy: All right.
Jennifer L. De Angelis: There are approximately 70 million law abiding gun owners in this country who Congress has consistently sought to protect. The protection of hunters and sportsmen is codified in section 101 of the Gun Control Act, cited in our brief at page 39. Of the 70 million law abiding gun owners, a large percentage of them own semiautomatic guns purchased lawfully, just like Mr. Staples, at a public gun show authorized by 18 U.S.C. 923, subsection (j). In the record, and throughout the case law, there are cited numerous instances where truly innocent possessors of semiautomatic rifles may be convicted of knowing possession of a machinegun. For example, at trial of this case, Judge Cook expressly, repeatedly showed concern about people who may be out duck hunting and their sport rifle may double by accident, without any prior indication that it had such capability, and that doubling would result in conviction under the strict liability interpretation of 26 U.S.C. section 5861 (d). Under these circumstances, Judge Cook said, it violates our system of fair play, but he assumed that people wouldn't be prosecuted. Perhaps the best example is cited by Judge Ebel in the concurring opinion printed at page 24A... excuse me, 23A of the Petition for Cert. Consider, for example, a situation in which a person who knows nothing about guns inherits a rifle from a relative. Unbeknownst to the recipient, the gun is defective, occasionally discharges two rounds of ammunition, and after a single pull of the trigger, or perhaps it's been converted by a prior owner to an automatic weapon. Because he has no use for the rifle, the recipient stores it with other unnecessary possessions in the basement or attic, without ever having used it or examined it. Under the strict liability theory, he would be prosecuted and sentenced. The penalties which accompany conviction for violation of 6 U.S.C. 2561(d) are harsh: 10 years imprisonment, $10,000 fine, or both. For--
Ruth Bader Ginsburg: When you talk about fair play, counsel, you're not suggesting that if this statute, in fact, said all you have to know is that you have a gun and the gun, in fact, has to be of a certain type... that that's what this statute said, that's fair play?
Jennifer L. De Angelis: --Justice Ginsburg, I'm not sure I'm understanding your question.
Ruth Bader Ginsburg: I was thinking what you said... you're interpreting a statute and you say... said that the statute requires that the defendant know he possessed a machinegun. Suppose... so... and you're... as you read the statute, that's what it says.
Jennifer L. De Angelis: That's correct.
Ruth Bader Ginsburg: If the statute, in fact, said defendant must know he has a gun, the gun must be a machinegun, period, that that would be fair play, that you wouldn't... you're not raising a constitutional point.
Jennifer L. De Angelis: No. And also I would direct... Justice Ginsburg, as you well know, in the U.S. v. Harris decision decided by the D.C. Circuit which you authored, there is no constitutional requirement--
Ruth Bader Ginsburg: I don't believe I authored that decision.
Jennifer L. De Angelis: --Oh, I'm sorry.
Ruth Bader Ginsburg: I think it was Judge Silberman, was it not?
Jennifer L. De Angelis: Right, you're correct. I stand corrected.
Ruth Bader Ginsburg: And I believe that Justice Thomas concurred in that.
Jennifer L. De Angelis: That's correct. As well, that there is no constitutional requirement to apply a scienter element into the criminal offenses. However, what the courts have done in recent history is they have used tools of statutory construction, and the rule of lenity, to find that--
Ruth Bader Ginsburg: If there's an ambiguity.
Jennifer L. De Angelis: --If there... that's correct. If there is an ambiguous statute, then principles of fundamental criminal law mandate that the Government prove mens rea. Support for the application of rule of lenity stated that... in this case particularly, and the Harris decision, that if Congress, against the background of widespread lawful gun ownership, wished to criminalize the mere possession of an unregistered possess... machine... excuse me, firearm, often indistinguishable from other nonprohibitive types, it would have clearly stated to that effect.
Antonin Scalia: Well, do they say that in our drug laws? I mean, you know, possession of heroin and so forth? Do they say knowing that it... knowing that it is heroin? Do those statutes say that?
Jennifer L. De Angelis: No. Those are, for the most part... and I must tell you I'm not familiar with every single one of the controlled substances statutes, but they would... most of them do require strict liability. However, the difference between a controlled narcotic or sulfuric acid or other substances of that nature, is it doesn't have the support of the Constitution. There is a Second... Second Amendment right to bear arms, and for that reason Congress has chosen time and time again to protect that right and distinguish what firearms need to be registered intact and what firearms may be legally owned and possessed.
Ruth Bader Ginsburg: But doesn't Congress say what drugs are unlawful?
Jennifer L. De Angelis: Yes, certainly they do. They... they're regulated.
Ruth Bader Ginsburg: So why isn't this case more like the drug case, particularly the Balint case, than it is like the Food Stamps case. Because a gun is a dangerous instrument. Nothing dangerous about a Food Stamp.
Jennifer L. De Angelis: I would agree with you, Justice Ginsburg. There's nothing dangerous, necessarily about a gin... about a Food Stamp. However, what you have before you is a... is a weapon that is legal, that has legal uses and legal possession. Food Stamps also have legal uses and legal possession, and you stand the risk of criminalizing innocent behavior, innocent possessors, by not implying knowledge requirements--
Ruth Bader Ginsburg: And don't... don't some drugs have lawful uses too?
Jennifer L. De Angelis: --Certainly, prescription drugs, or... if that's what the Justice is referring to. However--
Ruth Bader Ginsburg: Well, one could even lawfully possess marijuana in connection with treatment of certain forms of cancer, is that not so?
Jennifer L. De Angelis: --That is... that is correct. However, the distinction here... again, those exceptions have been noted. For example, we know that this Court's rendered decisions... I haven't reviewed them recently... dealing with spiritual uses for marijuana, or other narcotics, to allow that freedom to exist, just as there is a freedom here to bear arms, and a right to bear arms, and legal uses for a sport rifle.
John Paul Stevens: I don't quite understand what the Second Amendment has to do with the case. Would you explain that again?
Jennifer L. De Angelis: Only in that it allowed Congress... it supports a constitutional basis to allow Congress... which Congress has relied on, let me rephrase that. It provides a constitutional basis which Congress has relied on to protect legitimate, law abiding uses for sport rifles and target practice, or hunting or duck hunting, or whatever the use may be. There is a right to bear arms. It's not something that's--
John Paul Stevens: The militia is.
Jennifer L. De Angelis: --Exactly, that's correct.
John Paul Stevens: It is. But is this part of somebody's militia, this machinegun?
Jennifer L. De Angelis: No. What we have before this Court is just a citizen.
John Paul Stevens: Well, we mentioned earlier about the lawful uses of articles of this kind. What is the primary lawful use of a machinegun?
Jennifer L. De Angelis: There are approximately, my understanding would be, about 140,000 registered machineguns. I understand they are used in competitions--
John Paul Stevens: I know. But I'm just asking you. I just don't happen to know. What is the primary lawful use? Why would one not think, getting a machinegun, that there might be a reason to check as to whether there's any reason to have it registered and so forth? Why is it... is it so commonly used, like an automobile or something like that? Isn't that the kind of article that would put you on notice that if you want to use it in... that you ought to check and be sure the use is lawful?
Jennifer L. De Angelis: --Well, Your Honor, I don't stand before this Court to be a firearms expert, but I do believe that there are competitions involving machineguns, and there are other... are other uses for them. Those of which were lawfully registered prior to the ban of 1986, I don't know what--
Antonin Scalia: Is your point machineguns or is your point semiautomatic rifles?
Jennifer L. De Angelis: --This case--
Antonin Scalia: Which, due to some defect, may turn into machineguns, which is what you... what you say is the situation here.
Jennifer L. De Angelis: --That's correct, Justice Scalia.
Antonin Scalia: And there are many more than 140,000 semiautomatic rifles.
Jennifer L. De Angelis: That's right, there--
Antonin Scalia: Many hunters use semiautomatics all the time. It just means you don't have to reload each time you fire one round.
Jennifer L. De Angelis: --That's right. And that is exactly what this case is about. The semiautomatic weapon in this case is a sport rifle. There are--
Antonin Scalia: I suppose that a pistol... would a pistol that had that defect become... would an automatic pistol that had that defect become a machinegun?
Jennifer L. De Angelis: --You mean a semiautomatic pistol?
Antonin Scalia: A semiautomatic pistol?
Jennifer L. De Angelis: It's my understanding that any semiautomatic pistol, sport rifle, shotgun, has the capability--
Antonin Scalia: If it fires more than one round with a pull, it doesn't matter how long the barrel is, it becomes a machinegun.
Jennifer L. De Angelis: --If it fires more than one shot with a single pull of the trigger, it becomes a machinegun under the strict liability theory. That was the... that's the concern in most of the courts that have implied a knowledge requirement in the 26 5861(d). And this case is... involves a semiautomatic sport rifle, as any semiautomatic gun can be converted into an automatic or can, by malfunction, as did this gun, perform with... produce multiple shots with a single pull.
Antonin Scalia: Well, that's not quite accurate. This didn't... this wasn't really a semiautomatic weapon. It was an automatic weapon that had been rendered semiautomatic, and that because of a defect became automatic again.
Jennifer L. De Angelis: I--
Antonin Scalia: Wasn't this weapon an automatic weapon as originally designed, and it had been modified to prevent the automatic feature of it from operating?
Jennifer L. De Angelis: --If you're referring to the stop on the switch--
Antonin Scalia: Exactly.
Jennifer L. De Angelis: --The... when this... the testimony at trial has been consistently, from the seller all the way through, of this AR-15 sport rifle, as of when my client purchased it at the gun show, it was manufactured with M-16 internal parts. The selector switch on the outside had a three position lever that allows it to go from safe to semi to auto, and there was a stop on that to prevent it from semi to auto. The Court should know... and it is printed in the transcript and in the briefs... that there are AR-15 sport rifles out there, and other semiautomatic guns out there, that have no stop at all, nothing to prevent the user from turning the lever from the semi to the auto. However, the turning of that lever--
David H. Souter: In which case you wouldn't be making this argument, if your client had bought one of those.
Jennifer L. De Angelis: --Well, with one exception. And that is even if you turn the lever, that in and of itself, in this gun, will not allow the gun to produce multiple shots. You have to have the malfunction--
David H. Souter: No I realize that. But if your client had bought one of the guns in which there was a third position and all the client had to do was to put the device in the third position, you wouldn't be making the same argument that you're making here.
Jennifer L. De Angelis: --You are correct, primarily because at trial--
Anthony M. Kennedy: Well, I suppose I didn't understand your answer to Justice Scalia's question. In the form that this came from the manufacturer, and if it was operating properly, without any defect, would... it would be semiautomatic only, is that correct?
Jennifer L. De Angelis: --That's correct.
Anthony M. Kennedy: So it was not manufactured as a machinegun within the meaning of the act.
Jennifer L. De Angelis: That's correct. It was not designed--
Anthony M. Kennedy: Only if there's a defect does it become... does it acquire that characteristic.
Jennifer L. De Angelis: --That's correct. It's not designed to shoot multiple shots with a single pull of the trigger. And interestingly enough, the testimony at trial from the expert, Mr. Fagg, in this case, was that this is not a weapon, for example, that you would want to sell to the military and represent was an M-16. It's not a weapon, by the Government's expert's own concession, that would reliably fire multiple shots with a single pull of the trigger. Interestingly enough, on page 16 of the Government's brief they make the following statement: "In cases in which the offense involves regulation of an item that would not ordinarily be considered a hazard to the community, a rigorously knowledge element may be implied. " The rationale that all parties agree for the implication of a knowledge requirement is that any other result would risk criminalizing a broad range of innocent conduct, just as we were discussing earlier in the Liparota decision. Certainly, I would not represent to this Court that guns are always safe. But Congress has repeatedly and deliberately chosen only to register and tax those guns which are considered to be highly dangerous and offensive firearms. The Government says that Congress wants to prevent the conversion of semiautomatic weapons to automatic weapons. The petitioner does not disagree necessarily with that statement. However, that assumes some knowledge or purposeful act on the part of a person, just as in the Mittleider decision rendered by the Tenth Circuit. Defendant Mittleider sold his semiautomatic with a conversion kit to a undercover officer. The conversion kit for this AR-15 is called an auto-sear. It's a very small part whose only function is to allow the gun to fire automatically more than one shot with a single pull of the trigger. Conversion of the gun cannot be accomplished reliably or purposefully without the auto-sear. Because the criminal offenses requiring no mens rea have a generally disfavored status, petitioner respectfully requests this Court to apply the rule of lenity in this case. Throughout their brief, the Government alludes to gangsters and criminals in connection with gun possession. The petitioner is not a criminal, other than this conviction, and has no prior criminal record, nor does he advocate widespread use of machineguns. Petitioner does advocate fairness, however, in prosecution, and strongly believes that this honorable Court and the Congress and the Constitution promote justice and fair play by providing citizens with notice of what conduct is unlawful and to prove that the defendant had knowledge of his unlawful conduct. To allow 26 section 5861(d) to be a strict liability crime invites random prosecution. The only support for this prosecution is an ambiguous statute that omits a critical element of fundamental and criminal jurisprudence, and that is the defendant's mens rea. I would like to reserve the rest of my time for rebuttal. Thank you very much.
William H. Rehnquist: You may proceed, Mr. Feldman.
James A. Feldman: Mr. Chief Justice and may it please the Court: It's our position that the jury was properly instructed in this case, and that petitioner's conviction, accordingly, should be affirmed. The jury was instructed that in order to convict petitioner, it had to find that he possessed a machinegun and that he knew he possessed a dangerous device of a type as would alert one to the likelihood of regulation. It's our position that that is sufficient for a conviction under section 5861(d) and that the court properly rejected petitioner's proposed instruction that would have required the jury to find that he knew that the weapon he possessed had all of the characteristics, including the ability to fire automatically, that subject it to regulation under the National Firearms Act.
Sandra Day O'Connor: Mr. Feldman, now, just to clarify for us, you agree that this weapon was manufactured as a semiautomatic?
James A. Feldman: Yes. There's a military--
Sandra Day O'Connor: And as manufactured, it would not fall within the definition of a machinegun?
James A. Feldman: --At least... yes, yes. There's a military weapon which is an M-16. It's a selective fire weapon that has a switch that you can turn to automatic, semiautomatic, or, I think, safety. This--
Sandra Day O'Connor: Now, if... if the modifications of a weapon were... were strictly internal so there was nothing on the exterior that would alert a possessor about the change, and if you had a defendant who simply didn't know that the weapon had been modified internally when it was purchased, that person would be liable under your theory, I guess.
James A. Feldman: --That's correct. That's correct. Of course, that... that... there have been courts which have distinguished between cases where the modification was entirely external... was entirely internal, and where there was some external modification.
Sandra Day O'Connor: Yes, I just want to--
James A. Feldman: But in our view--
Sandra Day O'Connor: --I want to understand how far your theory goes, and it would go so far as to hold someone who was absolutely unaware of the modification liable.
James A. Feldman: --Yes, that's correct. Just as... that's correct. The Congress' intent when it enacted the National Firearms Act... well, when Congress enacted the National Firearms Act in 1934, it made it a crime to possess a machinegun that's not registered in the national registration records. It modeled the statute... it specifically stated that it modeled the statute on the Harrison Narcotics Act of 1914. This Court had... which imposed a similar registration/recordkeeping requirement on opiates and cocaine. In the United States against Bailant in 1922, this Court held that that statute does not require the Government to prove that the defendant has the kind of knowledge that petitioner argues must be proven in this case. That in... that under... under Bailant, under the national... under the Harrison Narcotics Act, it's not necessary to show that the defendant knows that the drugs he possessed had the characteristics of opium or opiates or cocaine.
Antonin Scalia: Mr. Feldman, I don't understand your argument. This statute says that it's to be interpreted like the Narcotic Act?
James A. Feldman: No, it doesn't say that. If you look at the provision... if you set it... if you set the original 1934 statute alongside the Narcotics Act, the similarities are striking. The penalty provision is identical. A lot of the language is the same. But I think equally important, the Attorney General Cummings who drafted... who had a role in drafting the statute, stated that he modeled it on the Harrison Narcotics Act, and the committee reports stated we have modeled this on the Harrison Narcotics Act.
Antonin Scalia: But narcotics are different from... from a semiautomatic rifle, which are very common.
James A. Feldman: That's true. Narcotics are different, but--
Antonin Scalia: Narcotics may not be different from a machinegun that looks like a machinegun.
James A. Feldman: --Well--
Antonin Scalia: It's something when, you know, you're presented with it, you say, gee, this is a machinegun, what's this doing around here. Or if you're presented with narcotics, the same thing, you ought to notice right away. But when you... when you're... when you say a semiautomatic rifle, hunters use them throughout the country. It's no big deal.
James A. Feldman: --That's true, and... but I think the same thing would have been true of drugs at the time they enacted the Harrison Narcotics Act. In other words, the Court didn't say that what... the burden of the Court's decision in Bailant was that if you possess drugs and you didn't know that those drugs were opium or... opiates or cocaine, you could still be prosecuted under the act. And the reason that the Court reached that conclusion, and the reason that Congress intended that, and the reason that they didn't put a mens rea provision in the statute here, is that those... that drugs, as a general category of items, like firearms, can pose a very severe threat to the community. That was the premise on which the Firearms Act and the Narcotics Act were enacted-- And if you are in possession of those... that sort of item that can pose such a threat to the community, it's up... Congress wanted it to be up to you to investigate what the nature of the item is that you had, and what the legal requirements that you had to comply with in order to possess it. That conclusion is particularly apt because this was a registration and recordkeeping provision.
David H. Souter: Well, it was, except that in the narcotics example, I suppose it's true to say that Congress did not draw a line between... sort of down the middle in the class of dangerous narcotics and say, well, we'll... we'll prohibit or regulate some and leave others free. But that, in effect, is what has happened in the gun situation. I mean, after all, the Brady bill didn't pass until last week. I mean, there's just been a long history of refusal to regulate the major class of guns in this country, so that when you are faced with something that, so far as externals are concerned, looks perfectly well like a gun which is unregulated and which has been the subject of repeated decisions not to regulate, you're not in the same situation that you're in with the narcotics.
James A. Feldman: I guess I'd respectfully disagree with that. In 1934 when Congress... what Congress did want to regulate was machineguns. It wanted to know how many machineguns there were, who had them, who had control of them, where they were located, in order to enforce that. Just as with the Narcotics Act where there were many other drugs that were not regulated aside from opiates and cocaine, by the act, in both cases I think the situation was exactly parallel. There were many things which Congress didn't want to directly regulate, but these are items that are dangerous, that pose... can pose threats, serious threats to the general welfare, and they didn't want, in the case of machineguns, machineguns to be kicking around in somebody's attic where they can surface at some later date and wreak havoc on the community.
David H. Souter: Well, I'm still... I guess maybe I'm going to move aside a little bit from the... from attacking the historical analogy, and just go to the merits of applying the interpretive rule here. Given the fact that the... that the overwhelming number of guns in this country, all of which are dangerous to some degree, are not regulated, I have difficulty in seeing the ease of applying this rule that one simply is on notice that there may be regulation by virtue of the fact that one has a weapon which, by definition, is dangerous.
James A. Feldman: Well--
David H. Souter: So just on the analytical point, I think you've got a hurdle to jump here.
James A. Feldman: --I think... well, I guess I do think the historical point is important. But I think, analytically, the vast majority of those guns that are unregulated are not machineguns, couldn't fire automatically, and wouldn't be supposed to be machineguns by anybody. It's not a serious burden that's put on people. But I think that if you do... the Court's decisions in Bailant, in Dotterweich, in the more recent Freed, and in International Minerals, I think that they do set a line that when you're dealing... although... that when you're dealing with extraordinarily hazardous items and especially where there's a registration/recordkeeping scheme where Congress wanted to know the locations of those items and who had them, that the people who have those extraordinarily dangerous items, it's up to them to find out what it is precisely that they own. It's--
David H. Souter: Well, does the... does the argument, then, in this case, come down to the fact that if you're dealing with a machinegun, that's fair to say, something which is manufactured as a machinegun, sold as a machinegun, anyone sort of buying it could reasonably be assumed... or possessing it, could reasonably be assumed to know that it was a machinegun, but that the argument doesn't wash in the case of a gun which, at least to external appearances, is not a machinegun.
James A. Feldman: --Well, there have... as I said, there have been courts that have taken that view. And that view, I suppose, would be an intermediate view, where there had no external indicia that could alert one to the fact that it was a machinegun. But frankly I don't--
David H. Souter: To this act, that it falls within this very dangerous category of regulated weapons.
James A. Feldman: --I--
David H. Souter: In other words, we've got a category of dangerous weapons which are not regulated. Presumably, there's nothing about the possession of a singleshot 22 that ought to put the owner on... to an obligation of calling the Government to see whether they regulate singleshot 22's. When the person possesses or buys a machinegun pure and simple, yes, you get a pretty strong argument that it's fair to put that obligation on him. Then we have the middle category of guns which maybe can be converted, and which in most cases are not. And is it... is it appropriate to put the obligation on the possessor or the buyer of those weapons to see whether something, in fact, has... has been modified about them that puts them into the especially dangerous regulable category? And that's the issue we've got.
James A. Feldman: --Right. And I think it is appropriate. I think it's appropriate both because Congress... I think, primarily, for the reasons I've already said, but because when Congress enacted the statute, they didn't include a mens rea component here. They did model it on the Harrison Narcotics Act. And in other areas where you're dealing with--
David H. Souter: Well, they may have... they may have done that on the assumption that we were going to apply this rule, which we're having difficulty applying, or at least I'm having difficulty applying. Congress many have said, well... you know, in fact Congress frequently does this... you know, the courts will work it out, they'll figure out what to do here. So I'm not sure that you can infer much from Congress' failure to act positively here.
James A. Feldman: --I guess, well... I think, actually, the way I would put it would be that the burden is on... would... the burden would be on petitioners to show that even though Congress didn't include... it's not their failure to act positively. They did act positively. They enacted a criminal statute that provides that it is unlawful to possess a machinegun that's not registered in the national firearms registration records.
David H. Souter: Well, while keeping... while keeping their silence on mens rea.
James A. Feldman: Right. Well... well, without... without indicating a mens rea. And in doing that... as I said, it followed exactly the Harrison Narcotics Act. And in the line... it's... the decisions that have applied the principle that we're talking about aren't limited to the Bailant case. In the Dotterweich case you were talking about misbranded or adulterated drugs. Now, there's a wide variety of unmisbranded or nonadulterated drugs that are around.
David H. Souter: But I... I think... I guess what's... I guess what's bothering me is that I don't see in the drug situation an analogy to this fact about the gun situation: In the gun situation, there has been a continuing political contest for further back than I can tell, about the appropriateness of regulating guns. And Congress, by and large, has taken a very narrow view of what should be regulated. And it seems to me that that is a fact which makes it difficult to apply, sort of, your tough version of the rule. And I don't see any analogy there in the drug situation.
James A. Feldman: Well, I mean, I guess I'd make two points in response to that. First, Congress has, though, decided it wanted to regulate machineguns. And I'm not suggesting that Congress wanted to regulate other types of guns. All it wanted was to know that if you had a machinegun and if you knew... that if people who had machineguns had to have them registered and it wanted to know where they were, that doesn't suggest that it's trying to regulate other types of guns, it's just suggesting that they wanted to make the regulation of machineguns an effective regulation that would ensure that they got registered. The second point I'd make is that throughout the years since the Gun Control Act of 1968, when Congress has extensively... in 1968 they recodified the National Firearms Act. In 1986 they amended it, as well as the Gun Control Act, which are the title 18 provisions. Throughout those years, and up until very recently, the courts were unanimous or almost unanimous that our position in this case was right, and that all you had to know was to know that it was a weapon in the general sense, in the general sense. There was no need for Congress for act--
Ruth Bader Ginsburg: Is there any circuit other than... any circuit other than the D.C. Circuit that has gone for the defendant in?
James A. Feldman: --The D.... as we read the cases, the only... the D.C. Circuit is the only... is the one that created the conflict in the circuits on the issue in this case. There are three circuits, the Ninth Circuit, the Sixth Circuit, and the Fifth... I think the Fifth Circuit, that have held... have appeared to us, at least, to distinguish between guns that... where the modification is entirely internal and entire... and guns where there's some external modification, as there was in this case.
Ruth Bader Ginsburg: Couldn't one rank this gun, based on the defendant's expert testimony, that this was a defect, and so bracket the defective gun with the internal modification, rather than the external modification?
James A. Feldman: Well, I suppose... one could accept that. I think the jury squarely rejected petitioner's evidence that the gun was defective. There was nothing defective about the gun. Perhaps if it had an additional part, it could have operated more reliably. But there was extensive evidence that the gun had been taken out... evidence... ammunition of various... several different types had been put in the gun, and it had fired automatically with a single pull of the trigger.
Anthony M. Kennedy: Well, of course-- --Mr. Feldman-- --Under your position, even if it's defective, there's liability?
James A. Feldman: I don't... no, I don't think so. I think if the gun, in fact... if the gun was... I suppose it might... might matter what you mean by defective. If the gun occasion... once or twice fired multiple rounds and... but was... I think a jury reasonably could find and a defendant reasonably could argue to a jury that this just wasn't a machinegun, it was an occasional defect.
Anthony M. Kennedy: Well, isn't it a question of law as to what is a machinegun and what isn't?
James A. Feldman: Right. And it's--
Anthony M. Kennedy: Well, is it your position that a defective firearm that fires multiple rounds is or is not a machinegun?
James A. Feldman: --If it... if it fire... if it fires multiple rounds. I mean, I... let me refer to the language of the definition. A machinegun is defined as any weapon--
Anthony M. Kennedy: Can you tell me where you're reading from, please?
James A. Feldman: --Actually, it's excerpted on page 4 of our brief.
Anthony M. Kennedy: Thank you.
James A. Feldman: Any weapon which shoots, is designed to shoot, or can be readily restored to shoot automatically more than one shot without manual reloading. I think when it says would shoot... which shoots, or is designed to shoot, or can be readily restored to shoot, I think you could take the term "shoot" there not to mean that it did it once by virtue of some defect--
Anthony M. Kennedy: So the Government's position is that unless--
James A. Feldman: --That type of... this is a capability that this weapon has.
Anthony M. Kennedy: --So the Government's position is that there's a machinegun involved if it shoots most of the time or some of the time as fully automatic?
James A. Feldman: I hesitate to depart too far, because I think it has to have the general capability of shooting more than once with a single pull of the trigger. I suppose that--
Anthony M. Kennedy: If the statute is ambiguous, isn't that an argument for requiring specific knowledge of its characteristics, as opposed to strict liability?
James A. Feldman: --I don't... in the... in the... I guess I don't see the ambiguity. I mean, I think there are going to be... there are going to be close cases--
Anthony M. Kennedy: Well, it seems to me we've just stumbled onto one.
James A. Feldman: --I don't... actually, I don't think it's an ambiguity. I think it's a question of the application of a lot of fact. The question is does this gun have the capability of shooting automatically. That question could arise even if you took petitioner's view of the case. Under any view of the case, you could have a question of whether the gun itself was or was not an automatic weapon. The question is whether it has the general capability of shooting automatically. That's a question that can be argued to the jury, but that's a question--
Ruth Bader Ginsburg: And the Government has the burden of proof on that, I take it.
James A. Feldman: --That's right.
Ruth Bader Ginsburg: And the jury must be instructed as to that.
James A. Feldman: That's right. And that's a question on which there was conflicting evidence in this case, but there was extensive evidence that this gun would fire, as a matter of course, if you put in... if you held the trigger down and put in ordinarily commercially available ammunition, it would fire automatically. And the jury credited that evidence and it didn't credit the defendant's evidence.
David H. Souter: Well, was the jury instructed on the... on a defensive defect here? I didn't think it was.
James A. Feldman: I don't recall... I actually don't recall the specific--
David H. Souter: Well, you said a moment ago that the jury rejected the theory that, in fact, this was a merely defective gun, and I didn't... I didn't understand that that issue was put to the jury.
James A. Feldman: --The--
David H. Souter: In fact, I don't... as I understood the instructions, the jury wouldn't have had any occasion even to take that issue up.
James A. Feldman: --The jury was instructed that... was instructed, I think, in terms of the definition of machinegun that I read to you, as I recall.
David H. Souter: Yes.
James A. Feldman: So it was instructed on what a machinegun is.
David H. Souter: And under that definition, as I understand the instructions, if the jury found that on one occasion one pull of the trigger shot more than one round, that that... that would qualify as a machinegun.
James A. Feldman: Well, I don't think--
David H. Souter: And the jury was not instructed, as I understand it, that in... in the generality of cases this particular gun had to function in that way. And as I understand it, it was not instructed that if it did so as a result of a defect, that it was not a machinegun. Am I wrong about the instructions?
James A. Feldman: --Again, I don't recall. I don't... it wasn't... the latter instruction I don't think was given. I don't recall specifically.
David H. Souter: Well, then we can't... we can't say that the jury rejected the theory of defect in this case.
James A. Feldman: I think what you can say is that the jury concluded that the gun was an automatic gun, as defined by... an automatic gun as defined by the statute. And also I really have to say--
David H. Souter: Well, I agree with you, but that's not... that's not the point. The point is did it reject a theory of defective weapon such that if it had found it was merely defective, that would have been defensive. And the jury didn't reject that theory.
James A. Feldman: --Well, I have to say the court of appeals didn't rule, as I recall, on any theory... on the theory of defective weapon. And the Petition for Cert doesn't--
David H. Souter: No, I'm not addressing the court of appeals, I'm just addressing your argument, and you were making the argument a moment ago that the jury had rejected the theory of defect, and I don't see how it did... you can make that argument based on the instructions.
James A. Feldman: --Well, let me go... as far as the theory of defect goes, I don't understand exactly what the theory of defect is. If the theory of defect is that it was able... it shot once, because something was wrong with it, multiple times with a pull of the trigger, but couldn't... that couldn't be repeated.
David H. Souter: Well, regardless--
James A. Feldman: And that... that--
David H. Souter: --Regardless of what the theory of defect is, the jury did not reject a theory of defect. Isn't that fair to say, under the jury instructions as given?
James A. Feldman: --I guess... I don't mean to fight the premises here, but I think--
David H. Souter: You're doing... you're doing a good job. [Laughter]
James A. Feldman: --Perhaps. The jury was instructed that it had to find that this was a machinegun. The jury in... if petitioner's defense was, well, this only fired automatically because it was a defect, and I didn't mean it to fire automatically, no the jury wasn't asked to rule on any question like that. The fact was that this gun was fitted with automatic parts. It had a piece... a pin which ordinarily sits on the receiver and would keep... even if all the automatic parts, all the semiautomatic parts had been replaced by automatic parts, that pin would keep the lever from shifting over to the automatic position. That pin had been visibly ground down. Now, if... petitioner's view of defect, as far as I understand it, was simply that the gun could have had another part which would have made it fire... which would have made it fire automatically more reliably, and that since it didn't have that part, it only fired automatically as a result of a defect. In our view, I don't think that was any real distinction, and there was no reason to instruct the jury. But in any sense in which it's relevant, I think the jury did reject the theory of defect.
Antonin Scalia: Mr. Feldman, can I ask what the Government's theory of mens rea requirement is? You're certainly not asserting that we should read every Federal statute which does not explicitly have a knowledge requirement as dispensing with it.
James A. Feldman: That's correct.
Antonin Scalia: Ordinarily, we will read in a requirement that you have to know you're violating the law.
James A. Feldman: That's correct.
Antonin Scalia: Now, what... what makes this different?
James A. Feldman: I would say there's about three factors. There's... one is the correlation between... the Congress' attempt to model this act on the Harrison Narcotics Act. There's two, that this involves highly dangerous items that are a serious threat to the community. And three, that it's a registration and recordkeeping requirement. It's a... it's in... the criminal prohibition here is in aid of seeing to it that these weapons get registered and that the Government know where they are and who has them.
Antonin Scalia: All registration and recordkeeping requirements do not have a scienter.
James A. Feldman: I think where Congress... we would be comfortable with the rule that where Congress doesn't specify otherwise, and where it's dealing with highly hazardous threats to the community and imposes a registration and recordkeeping requirement, that in those circumstances a very weak scienter requirement of the sort that was given to the jury here is appropriate.
William H. Rehnquist: Well, Mr. Feldman, does the Government want to concede that you ordinarily read in a requirement that you must know you're violating the law in every criminal statute where Congress is silent? Isn't the presumption ordinarily that ignorance of the law is no defense?
James A. Feldman: Yes, that's correct.
William H. Rehnquist: Well, then--
James A. Feldman: And I didn't mean to concede that.
William H. Rehnquist: --Well, but it's... then, it seems to me, you're giving a different answer to me than you gave to Justice Scalia a moment ago.
James A. Feldman: I'm sorry. What I was really... what I mean to say was where there's no specific... there's no specification of a knowledge requirement, I think it ordinarily is appropriate to require that the defendant at least know the facts, or the primary facts, or the crucial facts that make his conduct illegal. I do think it's a question of reading each particular--
William H. Rehnquist: Well, but that's a different... it's one thing to say the defendant must know the facts that make his conduct illegal. It's another thing to say that he must know the law that makes them illegal.
James A. Feldman: --Right. I don't think that there is... there's all... there's virtually never a requirement, unless it's otherwise specified, of knowledge of the law.
Antonin Scalia: I meant... I meant the former. The Chief Justice is quite correct to make that modification. But in this case, that would lead to the normal requirement that he had to know the fact that it was a machinegun.
James A. Feldman: That's right. And if... if we were--
Antonin Scalia: But you say that's not the case here because--
James A. Feldman: --Because--
Antonin Scalia: --Machineguns are dangerous and this act looks like another act that we've held doesn't have a recordkeeping requirement, and this is a... doesn't have such a requirement. And lastly, this... this act is a recordkeeping act.
James A. Feldman: --I mean I guess... I guess what I would add to that is that the primary determinant should be what Congress' intent was. And the point about this looking like another act is... I think that's a very strong index of what Congress' intent was--
Anthony M. Kennedy: Do most recordkeeping acts have prison sanctions for up to 10 years, which is what this is?
James A. Feldman: --That is a stiff sentence, I'll agree. But this act, when it was enacted, for instance... and there's no reason to think that the intent requirement would be any different today... had a prison requirement of 5 years and $2,000, which, word for word, was the same as the penalty provision in the Harrison Narcotics Act that the Court... that the Court interpreted--
Anthony M. Kennedy: Well, it seems to me that implicit in the argument that it's a registration, a regulatory act, is also the assumption that the penalty is... is not too severe. This is a very severe penalty.
James A. Feldman: --It's true that it is a severe penalty. But as I said, that... that penalty was not... it's not that different from the penalty that was in effect when the act was first passed. And there's certainly no reason to think that over the years... I think Congress upped the penalty from 5 years to 10 years in 1968, but that either then or in 1986 when additional amendments, some amendments were made here and some to the Gun Control Act... that at any of those times Congress wanted to change the Act. In fact, to the contrary, at all relevant times both the line of decisions that I've cited, Dotterweich and Bailant, the decisions of this Court, it's recognized in Morissette as well and International Minerals... at all relevant times those decisions uniformly supported our position, as did the decisions of the lower courts.
Ruth Bader Ginsburg: Mr. Feldman, remind me of your answer to Justice Souter's question about the difference between drugs, where one would say drugs are dangerous, and guns where, for the most part, Congress hasn't regulated, so it's only a special category that's registered? You don't have the same kind of congressional determination of dangerousness.
James A. Feldman: I think there's... there's really distinctions on both sides of that. First, when in 19... when Congress enacted the Harrison Narcotics Act... and generally in the early part of the century drugs were much less regulated than they are today. And the Harrison Narcotics Act only purported to regulate cocaine and opiates, not any other drugs. But secondly, from the other point of view, I think guns are extensively regulated in our society. They are items that are very dangerous and are known to be dangerous by people, and Congress legislated under that background assumption. And guns are sufficiently highly... are sufficiently regulated and sufficiently dangerous that if you have one, it's up to you to determine whether... whether it fires automatically. Another example, for instance, would be a short-barreled rifle. The short-barreled rifles or short... or sawed-off shotguns are also firearms under the National Firearms Act. It's... I don't think someone could reasonably... could reasonably... under petitioner's view, the Government has to prove, I suppose, that somebody took out a ruler and measured the length of a barrel on one of those weapons and saw that it was less than the specified 16 or 18 inches in the statute. I don't think that that's what Congress intended. Congress intended that if you own a shotgun or a rifle, it's up to you to determine how long the barrel is. And so long as you know you own the rifle or the shotgun, if the barrel is shorter than the 16 or 18 inches, it's a firearm under the act.
Antonin Scalia: Mr.-- --What if... what if you don't even know that it's a shotgun, you don't even know you have a shotgun? You buy a house, wight, and sealed up in an abandoned room in the basement there is a sawed-off shotgun; would you be liable? You don't have to know anything at all? You don't even have to know you possess it?
James A. Feldman: No, that's not our position. Our position is you have to know--
Antonin Scalia: Oh.
James A. Feldman: --is you do have to know it's a gun. The possession... the--
Antonin Scalia: Why is that?
James A. Feldman: --The position we have--
Antonin Scalia: Why is that?
James A. Feldman: --Because I think in draws the line that the Court has drawn between items xx apparent xx re entirely innocent, such as... such as Food Stamps xx type of conduct at issue in United States Gypsum--
Antonin Scalia: Is that the way the drug law is interpreted too, that you appeal to? If I sell something that I think is face powder and it turns out to heroin, that what they said in the Supreme Court?
James A. Feldman: --In Bailant, that's not what they said.
Antonin Scalia: I didn't think it was.
James A. Feldman: In Bailant they didn't address what you... what the... what the Court held in Bailant was that you... it rejected petitioner's position in this case, which is you don't have to know that what you possessed was opiates or cocaine.
Antonin Scalia: Right.
James A. Feldman: They... The Court didn't go into what you do have to know.
Antonin Scalia: No, but if--
James A. Feldman: And to some extent--
Antonin Scalia: --I think if you're going to appeal to Bailant and the drug cases, you have to say it really doesn't even matter whether he knows it's... it's a... he owns a gun.
James A. Feldman: --I think that it's reasonable that... I think the question of what you do have to know is... well, it's one that they didn't address in Bailant. And generally... I mean, generally, you could interpret this to be a strict liability offense. However, in light of the Court's distinctions in... between, for instance, cases such as Liparota and United States Gypsum, and cases like Bailant or Dotterweich or Freed, I think it's reasonable to draw the line and infer a very mild scienter requirement.
John Paul Stevens: Well, isn't it true that all the courts of appeals have done that. At least... at least they have to know that he possessed the item.
James A. Feldman: Yes, as far as I'm aware.
John Paul Stevens: Do you happen to know, as a matter of history, what precipitated the enactment of the '34 act?
James A. Feldman: I... it was--
John Paul Stevens: You didn't live in--
James A. Feldman: --There was testimony about Dillinger I believe.
John Paul Stevens: --You didn't live in Chicago then, I guess.
James A. Feldman: Yes. [Laughter]
David H. Souter: Is it fair to say... we could argue about the facts of application, but is it fair to say that your interpret... the Government's interpretative rule for finding what Congress probably intended, or imputing an intent to Congress, does require, for your position to prevail, that we conclude that the... that the... that the defendant understand that what he was possessing was... was an object within a class of highly dangerous objects which it is reasonable to suppose the Government would regulate?
James A. Feldman: I--
David H. Souter: Is that the general premise?
James A. Feldman: --That would be one formulation, yes.
David H. Souter: Okay.
James A. Feldman: If there's no further questions, I've completed.
William H. Rehnquist: Thank you, Mr. Feldman. Ms. De Angelis, you have 10 minutes remaining.
Jennifer L. De Angelis: Thank you, Mr. Chief Justice. It's important for this Court to remember that not all guns are taxed and regulated. And as with regard to the congressional intent, I'd like to leave the Court with this thought from the Anderson decision in the Fifth Circuit: "It is unthinkable to us that the Congress intended to subject such law-abiding, well-intentioned citizens to a possible 10-year term of imprisonment if, unknown to them, without reasonable cause on their part to think otherwise, what they genuinely and reasonably believed was a conventional semiautomatic pistol turns out to have been worn down or secretly modified to be fully automatic. "
Ruth Bader Ginsburg: That's a court that makes the distinction between internal and external.
Jennifer L. De Angelis: That's right.
Ruth Bader Ginsburg: And which we don't have here, because whatever you call it, it was external.
Jennifer L. De Angelis: In part, Justice Ginsburg. I think that the Government has stated, even in pretrial proceedings, that the modifications in this case were twofold. One, it contained M-16 parts. The Government says the parts were substituted. That was not the evidence at trial. The evidence was it was purchased by Mr. Staples with M-16 parts; it was manufactured in that fashion. And one of those parts was the selector stop on the lever... and the switch, the stop being modified or filed or worn down in some fashion by someone at some time.
Ruth Bader Ginsburg: But you're not saying that this case fits within the, "You can't see it; it's all on the inside. "
Jennifer L. De Angelis: That's correct. If there are no further questions.
William H. Rehnquist: Thank you, Ms. De Angelis. The case is submitted.
Speaker: The honorable court is now adjourned until tomorrow at ten o'clock.


Earl Warren: Number 66, Jeremiah Reeves, Jr.versus State of Alabama. Mr. Hall.
Peter A. Hall: Mr. Chief Justice, may it please the Court. Our argument would be a divided one. I will make a few of this statement, my colleague Mr. Billingsley will speak in rebuttal. This particular case is here in this Court the second time. Some time ago, back in 1952, petitioner, a young Negro boy, age 16, is arrested in Montgomery, Alabama and was held three to four days in jail and imprisoned (Inaudible) question. After that time, he was then indicted.On the next day, he was arraigned, charged with rape and subsequent to that, two days later he was tried, convicted of the crime of rape sentenced to the electric chair.On that occasion back in 1952, his counsel was (Inaudible), I believe. I don't recall exactly what their exact name but he did not have the same counsel as now. On the day of the arraignment -- I beg your pardon.He was arrested on November 10. He was indicted on November 14th, 1952. Now, from the 10th to the 14th of November, he was kept incommunicado in the City Jail of Montgomery and at Kilby Prison. He was not allowed to talk with his parents or to have counsel or have been into the counsel.On the 14th of November, he was indicted by grand jury of Montgomery -- in Montgomery County Alabama. Now, on the very next day, on November 15th, he was arraigned some time between November 15 -- November 14th and November 15th term of arraignment, counsel wasn't good for him. On the arraignment, his then counsel asked for a continuance in order to (Inaudible) which request was abused. Subsequently, on the 17th of November 1952, after arraignment, he was shared with the copy of the indictment and a list of the merit which has been drawn especially on the day of arraignment. On the trial of the cause, his counsel sought to withdraw pleas, end it on arraignment, pleas to demerits in order that he might attack the indictment on constitutional grounds. That request was overruled. All of this is supplied at the record. It appears in the record. The trial then went ahead to a conclusion at which time Reeves is convicted as I've said before of rape. This decision was affirmed by the Alabama Supreme Court. Subsequently, this Court granted certiorari and after a hearing, the Alabama Court which has raised a reversal which is without directions, Kennedy against Alabama and (Inaudible) against Alabama was cited, subsequently, the State of Alabama against Jeremiah Reeves. There's no trial in 1955. On this particular trial, there is no reindictment of the arraignment. Counsel for the defendant on the petitioner at that time again moved the Court -- moved the Court for permission to withdraw please in it on his previous arraignment in 1952 for the purpose of attack, the validity of this indictment on federal constitutional grounds. We have specifically two grounds which we desire to explore. One was the fact that under the reversal of this Honorable Court in the previous case, in the citation of the two cases, Kennedy against Alabama and Vermont against Alabama. It was our conclusion that certain culprit statements and confessions introduced on the previous trial could not that -- that because of those culprit statements and those confessions, the conviction could not stand and it was our conviction and our argument and the effort to attack the indictment this time, that the only thing before the grand jury that indicted Reeves was in fact the statements and the confessions which had been thrown out and without this, the indictment could not stand. Secondly, it was on the confession that the grand jury, which indicted petitioner contained absolutely no Negroes and that the system of the State of Alabama of throwing members of such grand jury said at that time was designed to exclude members or to discriminate against them by reason of their race and color then tried to the provisions of the federal constitution. The trial court without a hearing overruled our motions. We then filed a motion to strike within our drawn to hear this particular case because of exclusion of Negroes from the juries in Alabama. The trial court set this motion down for a hearing and on the hearing, it appeared that the Commissioners, the Jury Commissioners of Montgomery County at a system of selecting persons for the jury absolutely contrary to the system laid down by the Alabama court and the testimony in fact of the Commissioners showed that they had very little system indeed for the selection of Negroes, although they contended that there was no discrimination. Judge Eugene Carter, the Circuit judge of the County who testified that he -- members of the Board of Jury Commissioners had been for 27 years -- some years said that his method was to interview some Negroes whom he knew, who suggested names for the -- for the panel. But as to identify anyone of such persons, he refused because he said it might embarrass him. We asked him to identify anyone particular Negro who might be on the panel jury there at Montgomery County. He refused to do that. He also testified that he had drawn the grand jury in Montgomery County for the past 21 years that he remembered one Negro and he said on a grand jury, but could not remember as many as two during that period. I also testified that up until the past one or two years, it had been very difficult to get Negroes for service on the jury and that up until the past one or two years, very few Negroes had served. Judge Eugene Jones, the Circuit Clerk, Mr. Mathews who also served on the Jury Commission, both testified similarly. Their methods of selecting Negroes at the same manner through personal acquaintance by contact of various clubs and organizations, but none of them could designate or would designate a particular club or organization except for the NAACP and the local (Inaudible). Nor could we get from any of them, particular names of individuals that they knew to be on the jury role of Montgomery County are listed on the jury courts of that County. Incidentally, we ask the Court for permission to have the jury role examined by any of these particular witnesses for the purpose of ascertaining whether or no any particular name on such role could be identified by these witnesses who was certainly on a position to know as Negroes. The Court --
William J. Brennan, Jr.: (Inaudible)
Peter A. Hall: Mr. Justice, we do not know. We asked the Circuit Court Clerk who was also the clerk of the Jury Commission and as to what the size of the -- the jury panel was or the role. You mean the entire role?
William J. Brennan, Jr.: Well, what -- what's your practice? Does the Court draw a panel to serve for a week or two or something like that?
Peter A. Hall: I -- I beg your pardon.I think I misunderstood you. The panel is usually (Inaudible) of the trial of any -- of any one term.
William J. Brennan, Jr.: And when you tell us that Judge Carter, did you say? Testified --
Peter A. Hall: Yes, sir.
William J. Brennan, Jr.: -- that he could remember not more than one Negro ever serving on the panel, do you mean on a panel of a hundred?
Peter A. Hall: No, sir. Perhaps, I should -- allow me to try to explain this, the panel -- the jury panel drawn for service for a term is around a hundred persons. A hundred persons is enough. The number of persons who served on a grand jury is 18 persons. Now, out of the panel of a hundred, they draw -- they draw petty juries and a grand jury. Now, from this panel of 100 persons, Judge Carter, who draws most of this -- of the grand juries will then take these 100 names, put them in their hat. They throw them through the hat and draw from that hat 18 new service grand jurors.
William J. Brennan, Jr.: And he does that once a year?
Peter A. Hall: He does that twice a year.
William J. Brennan, Jr.: Twice a year.
Peter A. Hall: Yes, sir.
William J. Brennan, Jr.: Now -- and I don't quite get the significance of the one Negro.
Peter A. Hall: Over a period of 21 years that he has enjoined such grand juries in Montgomery County, Alabama, he remembered one Negro having served on a grand jury.
William J. Brennan, Jr.: That is only one --
Peter A. Hall: Only one --
William J. Brennan, Jr.: -- in all the number of panels of a hundred --
Peter A. Hall: -- in 21 years. That was his testimony.
William O. Douglas: There was a -- there was a hearing on this?
Peter A. Hall: Yes, sir. It was the hearing not on the motion to push the indictment Mr. Justice, but the hearing on the motion to question the jury drawn to hear this particular case.That is where this testimony came up.
William J. Brennan, Jr.: Did -- did the judge remember what year that was over the last 20 years?
Peter A. Hall: No, sir. He didn't. I don't recall it.
William J. Brennan, Jr.: Don't bother to tell.
Charles E. Whittaker: I thought the reference showed (Inaudible).
Peter A. Hall: Yes, sir.
Charles E. Whittaker: There were eight Negroes on the County and agreed on -- on the aide of the matter.
Peter A. Hall: Yes, sir.
Charles E. Whittaker: Three on the panel that tried this case.
Peter A. Hall: That is true, Your Honor. That is true but this was the petty jury. Now there had been. There was testimony from the bar. We questioned the members of the Bar of Montgomery County, several of them and that was a considerable testimony to the extent that several Negroes had been on jury panels in previous years. But to have Negroes actually serve on juries was another thing. That was the testimony.There were eight on this panel of 100 persons. I have -- none served on this jury and none served on the grand jury which indicted it.
Charles E. Whittaker: They were not been served on this jury --
Peter A. Hall: Yes, sir.
Charles E. Whittaker: But they were called to serve on --
Peter A. Hall: They were called --
Charles E. Whittaker: -- and stricken for (Inaudible) presumably by the prosecution.
Peter A. Hall: Absolutely, sir.
Speaker: Yes.
Peter A. Hall: Now, getting back to the -- to the question which Mr. Justice asked me. Judge Carter testified that he had known one Negro to serve on a grand jury in 21 years, only one. Now, he had -- he had drawn most of these grand juries and addressed most of them. Our contention made by way of motion was that Negroes did not served through some design, either because they were lift off of the jury rules all together or somewhere between the time of placing them on the roles and getting them to serve by reason of some design of the State of Alabama, they never got on a grand jury.
William J. Brennan, Jr.: Now, what's the method by which the 18 are selected? Does the judge just select them?
Peter A. Hall: Oh sure. They are put in a hat -- handkerchief put over the hat, placed over the hat. I believe that's correct from the Solicitor of Montgomery County here and he draws them out. There is no contention on the part of petitioner that the judge has a method of knowing which are Negroes or which are white.
William J. Brennan, Jr.: But it so happened I gather --
Peter A. Hall: But he does draw them out of the hat from under the handkerchief.
William J. Brennan, Jr.: And your position is that over 21 years.
Peter A. Hall: Yes, sir.
William J. Brennan, Jr.: Although there had been this process followed and in the hat would be a number of names of Negroes.
Peter A. Hall: Yes, sir. Well, no, sir, we do not admit that.
William J. Brennan, Jr.: You do not admit that, I see. In any event, only one Negro over the 21 years ever had his name drawn from the hat, is that it?
Peter A. Hall: According to the testimony of Judge Carter. Now, Judge Carter remembered positively one Negro serving, but he could not remember as many as two or four serving according to his testimony.
Felix Frankfurter: Mr. Hall.
Peter A. Hall: Yes sir, Mr. Justice Frankfurter.
Felix Frankfurter: Do I understand a right that the second trial, the trial in which there was (Inaudible) in which they had this conviction which you refer, was on the original indictment.
Peter A. Hall: Yes, sir.
Felix Frankfurter: Please refresh my recollection because I ought to remember this but I don't. When the case was here, 1954 --
Peter A. Hall: Yes, sir.
Felix Frankfurter: -- was the question of the makeup of the grand jury panel as well as the selection urged on this before?
Peter A. Hall: Yes, sir, Mr. Justice Frankfurter. It was argued extensively.
Felix Frankfurter: I don't mean to draw any instance. I just want to know the fact. That was true, wasn't it?
Peter A. Hall: Yes, sir.
Felix Frankfurter: It was urged and argued -- the briefs --
Peter A. Hall: Yes, sir.
Felix Frankfurter: -- argument and accounted by counsel for the State.
Peter A. Hall: Yes, sir, of course.
Felix Frankfurter: And you are now -- you are now -- you are now again challenging the validity, the constitutional of validity of the indictment because of the composition of the panel, is that right?
Peter A. Hall: Yes, sir. That is one reason, Mr. Justice Frankfurter and the other reason we attack the indictment was because our contention is that there was no sufficient legal evidence before such grand jury as is required by a statute of the State of Alabama on which they could base the indictment.
Earl Warren: Do you challenge the -- the Constitution of the petty jury also?
Peter A. Hall: We did challenge that, sir. We had a hearing on this, Mr. Chief Justice Warren.
Earl Warren: But what is the fact in regard to petty juries in that county in recent years?
Peter A. Hall: We set out in our motion for pushing the petty jury, call to hear this case the fact that the Negro population of Montgomery County, Alabama constitutes something like 40% from the total population of the County. They contended in that motion that from nothing to no more than 10% that no jury -- put it this way, sir. No jury ever was composed of more than 10% no panel or the jury role itself did not contain the names of more than 10% of its total makeup over Negroes.
William J. Brennan, Jr.: Does that mean that if the -- if the hundred every time, you never had a panel that had more than 10 Negroes --
Peter A. Hall: Never had that more than 10 --
William J. Brennan, Jr.: -- names, is that it?
Peter A. Hall: Now, in --
Earl Warren: (Inaudible) any concern on petty juries?
Peter A. Hall: I -- yes, sir, Mr. Chief Justice Warren. We must admit that Negroes have served on petty juries. I have seen them serve in Montgomery County in recent years. However, one of our main contentions is that Jeremiah Reeves was arrested and indicted in 1952 and as Judge Eugene Carter says, “Until recent years, they have had very few Negroes on the jury. And in 1952, I don't believe they had any.” In 1955, I have to reflect that Negroes are serving on petty juries in Montgomery County, Alabama. Now --
Felix Frankfurter: By way of information.
Peter A. Hall: Yes, sir.
Felix Frankfurter: Is the situation also from your point of view is ameliorated or changed as to grand jury -- serve on grand jury on the panel from which grand jury to draw?
Peter A. Hall: Mr. Justice Frankfurter, I do not know. I do not know of any Negro who has served on a grand jury in Montgomery County at any time. On this hearing, we questioned several Negroes and leaders there in the city of Montgomery, well educated persons, persons with position and none of them knew of any Negroes who had served on a grand jury.
William J. Brennan, Jr.: Do you practice in Montgomery, Mr. Hall?
Peter A. Hall: I am in Birmingham, Mr. Justice.
William J. Brennan, Jr.: In Birmingham.
Peter A. Hall: But I have also practiced in Montgomery and all of the State of Alabama. I have seen, however, in the City of Montgomery, Alabama as many as three or four Negroes on petty jury in recent years.
Felix Frankfurter: Criminal petty jury?
Peter A. Hall: I couldn't be sure, Mr. Justice Frankfurter, possibly so, but that has been in recent years. I must stress that. There has been a change and our contention is that the grand jury which indicted Jeremiah Reeves in 1952 was made up under that whole system which of course has changed recently and that at that time, it was greatly wrong and deprived the rights guaranteed him by United States constitution and that, the system by which they selected persons to serve was designed to discriminate against Negroes because of their race.
Charles E. Whittaker: (Inaudible)
Peter A. Hall: Yes sir, Mr. Justice Whittaker. The Alabama law requires that the composition of a grand jury can be attacked only by a plea in abatement and that such plea must be made in any case before arraignment.
Charles E. Whittaker: (Inaudible)
Peter A. Hall: In 1952, sir, as we try to outline to begin with, Jeremiah Reeves is arrested on November 10th, 1952. He was kept in the Montgomery City Jail for --
Charles E. Whittaker: (Inaudible)
Peter A. Hall: Yes, sir. He was kept in the Montgomery City Jail four or five hours where he was questioned intensively. This record, the previous record will show that. He was then taken from the city jail to Kilby Prison, a penitentiary where the record said and where the testimony was to be effective that he was placed in the electric chair and some other things and kept there from November 10th to November 14th. But this was -- we're not urging this, Mr. Justice Whittaker but in order to make the point that he did meet the requirement. He was taken to Montgomery City Jail to Kilby Prison where he was kept from November 10th to November 14th.
William J. Brennan, Jr.: Well, the -- the idea was that the confession which --
Peter A. Hall: Yes, sir. Whether in this confession --
William J. Brennan, Jr.: -- has been thrown out by the previous decision was gained by bringing him in alongside the electric chair and telling him (Voice Overlap) --
Peter A. Hall: That was the confession on the previous trial. At least he was queried intensively. He was kept incommunicado. We urged on the previous hearing that he was threatened. From the 10th to the 14th, he was not allowed to see his parents to have counsel or to see anyone. On the 14th, allegedly, he had made certain statements and has made certain confessions. Now, on that same day, he was allowed to see his mother for the first time.But on that same day, he was indicted by the Montgomery County grand jury. Now, he -- on the next day, the 15th, he was arraigned.
Charles E. Whittaker: He had counsel --
Peter A. Hall: He had counsel on that day.
Charles E. Whittaker: Now, where did he get counsel?
Peter A. Hall: He -- and that, we do not know, sir. We were not the counsel for him at that time, but this -- the man that he had as his lawyer at that time and tried to see him at Kilby Prison and according to the record on the first trial -- on the first trial had been refused, admitted. So, he had no chance to confer with.We would like to also point out the fact that on the 15th, when he was arraigned, he had not been served of the copy of his indictment nor did he know who the members of the grand jury that had indicted him were.
Speaker: Mr. Hall, what was the ground in which the state court denied your motion to --
Peter A. Hall: Motion to quash?
Speaker: Yes, motion to quash --
Peter A. Hall: It came too late --
Speaker: It came too late.
Peter A. Hall: Mr. Counsel, may I attempt to make this point a little clearer? Counsel for petitioner on the first hearing, on the day of arraignment, requested a continuance from the trial court for the purpose of drawing up motions going towards an attack on the indictment. The trial court refused that continuance. He was required to plead. At that time, they made a plea of not guilty, not guilty by reason of insanity. Now, that was in 1952. Subsequent to that, he again attempted to attack the indictment and the trial court held that the attack came too late in as much as he had already made a plea to the merits. On this hearing --
William J. Brennan, Jr.: Let's see. He made the plea, you tell us because he was denied a continuance --
Peter A. Hall: Yes, sir.
William J. Brennan, Jr.: -- which he sought for the expressed purpose of making an attack in the indictment, isn't it?
Peter A. Hall: Yes, sir.
Charles E. Whittaker: Now, that was --
Peter A. Hall: Reeves had been indicted on the 14th. He was arraigned on the 15th and at the time of arraignment, he was required to plea. He asked for continuance, the judge says no so he had plea.
Charles E. Whittaker: He was tried on the 26th?
Peter A. Hall: Yes, sir.
Charles E. Whittaker: Under what, on the same month?
Peter A. Hall: On the same month.
Charles E. Whittaker: Now, he had a lawyer and as I understand the point -- well, can you tell us precisely when he had a lawyer? Was it on the 14th the day he was indicted?
Peter A. Hall: He was not allowed to see anyone until the 14th and afterwards, so it had to be the 14th, sir.
Charles E. Whittaker: It's important to me because I want to know how much time intervened from the time he had a lawyer until he had to plea in this case.
Peter A. Hall: Please excuse me, Mr. Justice Whittaker. I have here somewhere in the brief. On page 7 --
Charles E. Whittaker: Page 7?
Peter A. Hall: -- of -- of petitioners brief under (1), at the bottom of the page. We set out some of this. At the bottom of the page, we set out at the last paragraph. He was taken from the county jail, situated in the City of Montgomery, Alabama where he was kept five or six minutes and then taken immediately to Kilby Prison, the State penitentiary, situated in the same County where he was put in the test cell, questioned and threatened without advise of counsel and not allowed to see his parents from Monday, November 10th until the afternoon of Thursday, November 14th after he had made certain admissions and culprit statements when his mother was allowed to see him. I don't know if counsel was allowed to see him that afternoon or the morning of the 15th, but I know he saw no one until the afternoon of November 14th and he was required to plea on trial for his life on the morning of November 15th.
William J. Brennan, Jr.: And he was actually indicted on the 14th, the same say he first saw his mother.
Peter A. Hall: Yes, sir the same day.
William J. Brennan, Jr.: So at most, it had to be within 24-hours.
Peter A. Hall: Yes, sir.
William J. Brennan, Jr.: Well, now did I understand you to say earlier that -- does the record show that his mother had retained a lawyer who had tried to see him between the 10th and 14th --
Peter A. Hall: The record of previous hearing, in the record of the previous hearing shows that some attorney, Mr. (Inaudible) I believe attempted to see him at Kilby Prison.
William J. Brennan, Jr.: That's between the 10th and the 14th.
Peter A. Hall: Between the 10th and the 14th and was to -- there is some contention. We don't have it in this record. We didn't go into that issue. On --
Tom C. Clark: Is there anything in the record that shows that he actually, at the time that he made his motion to continue (Inaudible).
Peter A. Hall: For the motion for continuance, Mr. Justice Clark?
Tom C. Clark: Contend that he was going to raise the question of attack on the grand jury.
Peter A. Hall: I don't --
Tom C. Clark: (Inaudible) a motion for continuance is made and to say what grounds or what is the further motion.
Peter A. Hall: I am not sure of that contention, Mr. Justice Clark, but somewhere in the record, there is a suggestion. I don't know if it's in this record, previous record because we argued the same point on the cause that came up before. I believe in that record and on that brief, we set out the counsel and -- and indicated the place in the record where it was that counsel wanted to make a motion or I didn't make a motion for continuance for the purpose that argued on his motion for continuance that he wanted to attack the indictment and go into that, but they refused to grant him continuance or he wanted to study the matter. I'm -- I'm not sure, Mr. Justice Clark.
Tom C. Clark: He made a motion to quash. He made -- he has to make a motion to quash.
Peter A. Hall: Yes, sir. He made a motion to quash subsequent to his plea on the arraignment.
Tom C. Clark: Now, did he -- on the 15th, the record showed that he came in and made a motion to continue the arraignment and then go over it. The judge said he denied it.
Peter A. Hall: Yes, sir.
Tom C. Clark: Can you say what the grounds were?Now, my question was and I understand (Inaudible) it's in the record that was here before.
Peter A. Hall: Yes, sir.
Tom C. Clark: That record should show that at that time, the counsel stated that he wish to attack the merits.
Peter A. Hall: Mr. Justice Clark, he also suggested that he subsequently on the trial made a motion to quash, I believe.
Tom C. Clark: That was the 13th.
Peter A. Hall: On the 13th, yes sir, but that was after --
Tom C. Clark: The arraignment.
Peter A. Hall: -- the arraignment and everything else, but he actually made a motion to quash the indictment. And the trial court held then that he came too late. He had already pleaded. On the previous hearing, in this honorable Court, it is our understanding that the reversal was predicated on the Commission and the evidence of an illegal confession or certain statements made by petitioner alleged to it and made by the petitioner. The record of the previous file indicates that no written confession was introduced into evidence or read to the jury, but that certain words or certain statements alleged to have been made to the prosecuting witness, Mrs. (Inaudible), and to a state official were repeated for the benefit of the jury or went to the jury. On the second trial, no confession was read to the jury nor did Mrs. (Inaudible) this time repeat verbatim what had been said to her previously, but she admitted on the stand that at the time she allegedly identified petitioner on November 12, the state is important. Before she viewed him through a one-way window as he stood alone in a cell, it's either the city or county jail that she had been given a statement by a police official which indicated that the man which she was looking at had confessed to the crime.
Speaker: This record shows that?
Peter A. Hall: Yes, sir. They referred to (Inaudible). Now, the State is under the assumption that they did not introduce a confession. Our contention is that if it was ever introduced, it was introduced this time too, because a prosecuting witness indicates from everything she says and from her actions and the fact that she had to talk with the man. She looked at him through a one way window.She did not have to go into the cell. She had to go in and talk to him. She saw the statement before she went in and then she still had to go in and talk to him and have a conversation with him before she could come out and say she's identified. But her entire identification was based upon that culprit statement or whatever that confession was. The State certainly don't have to introduce it into evidence, only by introducing her and letting her point the finger on the petitioner and identifying him. The State's whole case is grounded upon the identification of the prosecuting witness and the corroborating testimony of one witness called -- his name is Clark who allegedly picked up a colored boy somewhere in the vicinity of the neighborhood where this crime took place on the day in question. And this man, this witness that remember everything in the world about petitioner, but he couldn't even remember the day he talked to him in prison. And he -- and the record of the previous hearing, again, this hearing will show that he could identify him until he talk to him, so whatever admissions were made for the basis of his identification. Assuming that we had been allowed on a proper hearing to question those people, those persons who must have appeared before the grand jury and as much as the State's whole case rested up on that identification, if we could have shown that the indictment was granted upon these illegal admissions, then it seems to me on the decisions of this Court and under the Federal Constitution decision and under the law of Alabama which is clearly set out in our statute and in here looking at the State where the Supreme Court is held that were -- the legality of evidence before the grand jury when it's brought up on a motion to quash must be decided by the trial court before they can go on to hear the case on the merits.
Speaker: (Inaudible)
Peter A. Hall: No, sir. The State brought up Costello and while we didn't discuss it, we didn't take issue there. It seems to us that Costello appears sort of different situation and as much as it's a criminal case to those in the Federal Courts and Costello is relying upon the Fifth Amendment and whatever rights he might have under the Fifth Amendment. It was his contention that if the Fifth Amendment guaranteed him nothing that this Court should setout certain rules by which grand jury should go before and bringing in an indictment. The Court, Mr. Justice Black's opinion held that the Fifth Amendment guaranteed him nothing only that -- all the murders and infamous trials should begin by indictments are presented. And in a review of the grand jury system, he pointed out that they've been more or less left on their own. However, we are relying upon an Alabama statute which says that only legal evidence can go to grand jury.
William O. Douglas: (Inaudible)
Peter A. Hall: They didn't say the statute was set aside, sir. They absolutely refused to give us a hearing on our motion.
William J. Brennan, Jr.: On the ground that you're out of time, was it?
Peter A. Hall: On the grounds that we -- that there was no merit (Inaudible), sir. They absolutely refused to give us a hearing on our motion. I don't know what the -- I don't recall exactly what the Court held. But in addition to that -- that statute incidentally while I check this, we had an Alabama case to back our position up and that was the Hill case which we just mentioned and which we cite in the brief, Hill against State 20 Alabama (Inaudible) which was a -- a conviction for a liquor law violation where the defendant alleged the grand jury which returned the indictment. It has no legal evidence before it and that the indictment should be quashed. The trial court overruled it and went up to the State Supreme Court and the State Supreme Court held that there was a merit in his contention and that the -- that the motion presented an issue of fact to be determined by the trial court before the defendant could be required to plea on the merits. But in this particular case that the Supreme Court of Alabama would not --
William J. Brennan, Jr.: Where does it appear why -- are the reasons stated why the motion to quash was denied?
Peter A. Hall: No, sir. The trial court gave no reason. They just overruled on this.
William J. Brennan, Jr.: Where is the order?
Peter A. Hall: Find it for me. Would you allow him to find (Inaudible)? Record 18 and Record 207.
William J. Brennan, Jr.: Is this at page 19, additional judgment and pleadings?
Peter A. Hall: 18.
William J. Brennan, Jr.: 18?
Peter A. Hall: On the record, sir.
William J. Brennan, Jr.: Does the record of the proceedings which led up to those judgments anywhere?
Peter A. Hall: On page 207 of the record, motion to quash indictment (Inaudible) on page 207 of the proceeding, sir.
William J. Brennan, Jr.: Well, apparently, the State objected to the motion on single ground, wasn't it, that it came too late?
Peter A. Hall: The State objected, Your honor. I -- I recall the trial court giving no reason they overruling the motion and we took exception.
William J. Brennan, Jr.: You're right that he says nothing, but I notice that the Solicitor for the State, the top of page 207 states his reasons for objecting that it comes too late. Now, the trial judge says -- he says “Considered opinion that the motion should be denied”.
Peter A. Hall: That's right.
William J. Brennan, Jr.: Is that right?
Peter A. Hall: That's right. If Your Honors please, I'm don't want to take all of the time. We have this divided time but we have another argument which we wanted to present, another point. The petitioner understands that an ordinary circumstances, it's unnecessary to re-indict, to re-arraign a man simply because -- because it's been reversed on appeal. Usually, the error, if it appears, is some error which goes on the trial of the cause, an error in ruling on the part of the Court, errors of otherwise. But in this particular cause, we think it is particularly urgent and under the circumstances here, the trial court's refusal to allow petitioner to withdraw his pleas previously in it, which petitioner asked first before attacking the Court's position and asking for reindictment and rearraignment. Petitioner asked that he be allowed to withdraw his pleas in it at his previous arraignment in order that he might attack the legality of his indictment. The trial court absolutely refused to allow him to withdraw his pleas. Now, it is admitted by petitioner that the trial court had discretion to refuse or to grant that request to withdraw pleas. But we submit that under the circumstances, his refusal to allow to withdraw was arbitrary to the extent that it was -- it's a revisable error and that it did deny the defendant, a very substantial right guaranteed him by these laws of Alabama and by the federal laws. Thank you very much.
Earl Warren: Mr. Thetford.
William F. Thetford: Mr. Chief Justice, may it please the Court. We, my colleague and I, Mr. Stewart are here as the Solicitor and Deputy Solicitor who prosecuted this case, prosecuted it both the first time and the second time. We're here by order and direction of Attorney General of the State of Alabama. We are dividing our time and I propose to argue in this order, is the Board of Jury Supervisors of Montgomery County systematically excluding Negroes because of race or color and let me explain this that what I say would apply equally to grand or petty juries because they're all drawn out of the same box. Does due process require the reindictment, rearraignment of the defendant for a second trial? Did due process require the trial court to allow the defendant to withdraw his pleas of not guilty and not guilty by reason of insanity entered on November the 15th, 1952 upon a subsequent trial held after reversal of this case by the Supreme Court of the new -- the request being made on May 30th, 1955 and should the defendant have been allowed to inquire into this efficiency of the evidence before the grand jury which indicted him. Those are the four of the points which have been argued. Mr. Stewart will cover the two remaining points which are the certain remarks which were made and certainly a request that was made in the qualifying of the jury or trial, the actual trial jury and the question of excluding the public from a court room during the trial of case -- a rape case, case of this nature.
Felix Frankfurter: Did you mention the question of the confessions of --
William F. Thetford: There is no question of a confession in here.
William F. Thetford: What -- are we going to deal with it?
William O. Douglas: What's the point that you talk about it?
William F. Thetford: Well, there is. The State offered no confession or anything approaching a confession. He said so, but I'm -- and I'm going to answer that.
Felix Frankfurter: All right.
William F. Thetford: But that is simply our concern on the statement of the fact.
Felix Frankfurter: Very well but you're going to deal with it.
William F. Thetford: I will.
Earl Warren: We'll -- we'll recess now, Mr. Thetford.