Earl Warren: United States, Appellant, versus David Thomas Healy et al. Mr. Pollak, you may proceed with your argument.
Stephen J. Pollak: Mr. Chief Justice, may it please the Court. This is a direct appeal from a dismissal by the District Court of an indictment in two counts. The unlawful acts alleged in the counts consisted of the forcing by the defendants at gunpoint of the pilot of an airborne aircraft to transport them from the air above Dade County, Florida to the Republic of Cuba. Count 1 of the indictment alleged that these Acts were in violation of the Federal Kidnapping Statute, which makes it a crime to transport a person unlawfully seized and held for ransom, reward or otherwise.
Speaker: These add to the Castro Revolution.
Stephen J. Pollak: The date of the alleged Act was April 13, 1962. The Court read the statutory words, ransom or reward or otherwise, to require a wrongful goal of a pecuniary or monetary sort and held that transportation to Cuba was not such a goal and dismissed the count. The issue presented whether the words for ransom or reward or otherwise, limit the kidnapping statute to a holding for a monetary minimum. Count 2 alleged that these Acts constituted a violation of the air piracy statute. This statute makes it a crime to seize by force an aircraft in flight in air commerce. The District Court held that the Cessna airplane that the defendants were alleged to have seized was not an aircraft in flight in air commerce. It read those words to mean only a commercial airliner which carries passengers or goods for hire. The issue presented is whether these words, "an aircraft in flight in air commerce" limit the statute to commercial airliners, the seizure of commercial airlines. I would like first to address myself to the dismissal issue raised by the dismissal of Count 1, the kidnapping count. And then to turn briefly to the air piracy count. In 1932, the Congress passed the Federal Kidnapping Statute, it was known as the Lindbergh Law and it made it a crime to transport in interstate commerce a person who had been unlawfully seized and was held for ransom or reward. Two years later, the Congress amended the statute to add the words, "making it a crime to transport a person unlawfully seized and held for ransom or reward or otherwise, except in the case of a minor by a parent," made an exception for the seizure or kidnapping of a child by his parents. The purpose of these amendments, as stated in the courts of the Committees, the Senate and the House, was to extend the kidnapping statute to persons held not only for reward but for any other purpose. One year later, this Court in the case of Gooch versus the United States, had occasioned to study the statute and interpret the statute. The court there faced the very issue on which the District Court here dismissed the kidnapping count, that is whether the words for ransom or reward or otherwise reached beyond a pecuniary purpose. The Acts there alleged in the Gooch case was the holding of a -- of an officer for the purpose of the defendants avoiding or the accused avoiding arrest, holding of an officer to avoid arrest. The Court reviewed the legislative history. In fact, substantial body of the history is printed in the footnote of the Court in that opinion and it held that the statute was intended to reach and did reach a holding for any purpose to secure a benefit to the person who did the seizing. It held that the statute was not restricted to a holding for a pecuniary purpose. We believe that this decision in Gooch establishes the error of the District Court, the statute reaches a holding for any other purpose as the Congress stated and that transportation to Cuba here involved is such a purpose. Indeed, the appellees concede that the statute reaches beyond the holding for a pecuniary purpose. At page 9 of their brief and thereby relinquished or moved away from the ground on which the District Court rested its dismissal. And they argue that the statute reaches only an unlawful seizure, an unlawful holding for an unlawful purpose. The contention is that the purpose of the holding must be due itself unlawful, that is for a purpose of committing a robbery or rape or escaping arrest and that mere one way ticket to Cuba is not an unlawful act, not an unlawful purpose. In our view, the Court's decision in Gooch also answers this contention because at the end of that opinion, the Court there recognized that the Congress had made an exception for the kidnapping by a parent of his child and the Court said that a parent who carried his child away because of the -- because of affection might subject himself to the condemnation of the statute but for this exception. And in our view, this is a recognition that an act which in itself that is the gratification of love of a parent for the child, an act not unlawful would be reached by the statute but for this -- this exception.
Potter Stewart: I realized what we have before us that really is -- is -- in this indictment, we don't have any evidence or thing but you know as a matter of fact, how these people get into the private airplane, were they sent to the pilot or what?
Stephen J. Pollak: The -- as you've stated Mr. Justice Stewart, the indictment in the record doesn't indicate at all. Just this morning, I endeavored to find and see if I could find anything further and it's not it -- again, I don't like to go beyond the record but I believe they rented this small plane.
Potter Stewart: It was a charter.
Stephen J. Pollak: It was a four-passenger Cessna flown out again not -- the four-passenger is in the indictment, Cessna is in the indictment. Not in the indictments effect, I believe it was rendered or flown out at Tamiami Airport down into Florida.
Potter Stewart: And held them up while he's in the air (Voice Overlap) --
Stephen J. Pollak: It was -- it was in flight as is stated in the indictment and the indictment indicates that they pulled a gun and forced the pilot to fly the plane to Cuba.
Potter Stewart: There's no indication that the pilot was there, they were parents of the family?
Stephen J. Pollak: There -- no, no. There's no indication, that fact is they have the -- they have different names, the pilot's names was Woodruff Mead (ph) and the indictment alleged that he was released unharmed upon the termination of the flight. In our view of the argument that the purpose must be unlawful is -- it's said difficult to take seriously. There is no indication in the legislative history, there's no indication that any of the cases. Indeed the cases have -- Court of Appeals cases upheld where the purpose was a seizure to gain a ride somewhere. Indeed, there's a case, the Hess case where one of the kidnappers secured a ride from -- the person's name is holding out in the country down to Macy's in downtown Kansas City and this was upheld as constituting a kidnapping.
Earl Warren: Mr. Pollak, there's a rental -- rental of the plane for transportation between any two points in this factory or general transportation or -- or what was it for?
Stephen J. Pollak: Mr. Chief Justice, the -- the record doesn't indicate even that it was a rental.
Earl Warren: Yes.
Stephen J. Pollak: The record only indicates --
Earl Warren: Yes, I understand.
Stephen J. Pollak: -- that they were in flight.
Earl Warren: Yes.
Stephen J. Pollak: And I -- I really don't believe -- believe I know if I were to --
Earl Warren: Very well.
Stephen J. Pollak: -- the, yes?
Earl Warren: But it was not to go to Cuba anyway.
Stephen J. Pollak: My understanding that it was not to go to Cuba and I am clear in that, yes sir. The -- if the purpose of the holding had to be an unlawful purpose and we find nothing in cases, the legislative history of the statute. If indeed it did, certainly, the argument can be made that the condition is met here because at the time of these Acts, it was unlawful under declaration of the Secretary of State to travel to Cuba without especially validated passports or prior passports had been revoked in 1961 and required special validation and it's unlikely that these gentlemen went through any of the necessary procedures to proceed to Cuba. The statutes of United States may travel without such a passport of crime.
Speaker: (Inaudible) suppose on a kidnapping charge?
Stephen J. Pollak: My understanding is that the release of the person seized unharmed makes the penalty inflict that penalty.
Speaker: Right. What are -- what are the facts?
Stephen J. Pollak: Oh, the -- the indictment alleges that the pilot was released unharmed.
Speaker: Unharmed.
Stephen J. Pollak: Then he -- then returned to the United States as did the -- the defendants. We believe that there is even -- turning to the second count, the air piracy count, that there's even less basis for the Court's action and if possible less basis for the Court's action in dismissing this count. The air piracy statute was passed ion 1961 as an amendment to the Federal Aviation Act. It was passed with several provisions as an answer to the then going rush of hijackings. The statute on air piracy, one of the several statutes passed is a simple provision that makes it unlawful to seize an aircraft, to seize by force, an aircraft in flight in air commerce. The terms "chosen" and "aircraft" and "air commerce" were words of art. They had been defined in the Federal Aviation Act which was passed in 1958 and indeed, they had been defined in essentially the same terms in the Civil Aeronautics Act passed in 1938. The Court -- and they had interpreted in prior cases of the Courts of Appeal and the District Courts. The District Court's holding here that the Cessna was not an aircraft in flight in air commerce, it was in (Inaudible) disregard of these definitions and of the legislative history of the air piracy statute. The definition in the statute of an aircraft is a broad one. Any contrivance known or hereafter invented used or designed for navigation or flight in the air. There really can be no contention that this wasn't an aircraft that was in flight in the air and I don't suppose that anybody would contend otherwise. Air commerce also defined in the statute as any operation or navigation of aircraft within the limits of any federal airway or any operation or navigation of aircraft which directly affects or which may affect or may endanger safety in interstate, foreign or overseas commerce. The indictment, Count 2 charge that the plane at the time it was seized was in a federal airway.
Potter Stewart: The -- that as I suppose to the term of art, what's that mean?
Stephen J. Pollak: The federal airway? These are designated passageways at different heights and directions in the regulations established by the Federal Aviation Administration.
Potter Stewart: I suppose these days, every plane that takes off, of every type has to get that kind of a clearance isn't it, and that the -- and there -- and therefore it's within a -- the limits of a federal airway?
Stephen J. Pollak: These -- these statutory definitions long ago were interpreted if in -- I might cite for the Court two early cases which interpreted the definitions Rosenhan versus the United States 131 F.2d and the United States versus Drumm, 55 F.Supp. These cases had occasioned to interpret the definitions back at the time the Civil Aeronautics Administration was testing its wings, I suppose, its regulatory wings to require certificates of air worthiness for planes, licenses for pilots and arguments were made that these planes were -- in the Drumm case, I believe the pilot said that, "I only fly over my own corn field and I don't go near any other planes and therefore, I need neither a certificate of air worthiness for my plane or a license for myself." And the Court in both those cases essentially, held that any flight over the air space of the United States was a flight which may affect safety in -- in commerce and a flight for which the pilot needed a license and which the aircraft needed a certificate. The -- if the definitions as read by the District Court below in this case were so limited -- limited to commercial airlines, these early cases would be wrongly decided, the scope of the regulatory authority of the Civil Aeronautics Administrations for all those years and this Federal Aviation Agency would really extend only to commercial airliners because it is the same definitions which provide the base for that regulatory action.
Speaker: (Inaudible)
Stephen J. Pollak: Those early cases are not in the brief and that is the reason I -- I cited them here.
Potter Stewart: Neither the citation again.
Stephen J. Pollak: Yes. Rosenhan versus the United States, 131 F.2nd and the United States versus Drumm, 55 F.Supp.
Potter Stewart: F.Supp.
Stephen J. Pollak: The ruling however does not -- not only flouts these definitions in these early and constant interpretations of the definitions but the legislative history here is -- is overwhelming. On this amendment to the Federal Aviation Act in 1961, the air piracy provision was proposed by Senator Ingle and on the floor of the Senate, at the time the bill was under discussion not once but twice, he was asked as he explained the bill whether it reached commercial airliners and private planes, and he said not once but twice that it did. In the hearings in the Senate, a witness from the Business Aircraft Association specifically testified twice that the statute reached the airliners and private planes. The House Committee report made the same statement at the outset of the report and in the body of the report. The chairman of the subcommittee in the House which held the hearings on the bill, John Bell Williams in the debate on the floor, this was not an item of the debate but in the discussion of the bill, made a specific point that had reached commercial airliners private and business planes. Representative Oren Harris, the Chairman of the Interstate and Foreign Commerce Committee reported the bill and as I understand that the floor manager of the bill also said that it reached private planes as well as commercial airliners. I can find no contrary evidence that the air piracy provision was intended to be or is limited to commercial airliners. And there -- I can find no reasonable basis for the construction. It loses the obvious purpose of the bill which is to protect the planes from seizure and the safety of the passengers not only in planes, persons in the planes but also the other flights that are in the airspace.
Potter Stewart: Am I right in recollecting that the interstate theft of an airplane is covered by the direct --
Stephen J. Pollak: I'd like to --
Potter Stewart: -- by an --
Stephen J. Pollak: -- be able to --
Potter Stewart: -- amendment of the direct?
Stephen J. Pollak: -- say yes or no, but I -- I don't know Your Honor.
Potter Stewart: Thank you.
Stephen J. Pollak: We ask the Court respectfully to reverse the judgment.
Earl Warren: Mr. Pollak, could you give me the page numbers of those two cases that you -- you cited, 1 -- 131 F.2nd.
Stephen J. Pollak: The 131 F.2nd 932.
Earl Warren: 932.
Stephen J. Pollak: The Tenth Circuit decided the Rosenhan case and the Drumm case is 55 F.Supp. 151, District Court of Nevada.
Earl Warren: Thank you. Mr. Shevin.
Robert L. Shevin: Mr. Chief Justice and members of the Court, may it please the Court. My name is Robert L. Shevin, from the law firm of Shevin, Goodman & Holtzman, Miami, Florida. We represent the defendant David Thomas Healy. Our first contention is that the appellant's notice of appeal was not filed within the time allowed and that on this basis, this Court should dismiss this appeal even though in -- an order entered at 372 U.S. 963, probable jurisdiction has been previously noted. Now, the only properly appealable order that is before this Court, is the order granting the defendant's motion to dismiss both counts of the indictment. This order was entered by the Honorable Emett Choate, United States District Judge in the Southern District of Florida on September 17th, 1962. Now, this is the only appealable order notwithstanding the reference made by the Government in the notice of appeal which purports in addition to this order to also appeal from an order dated November 5, 1962 denying the Government's petition for rehearing. Surely, there can be no question but that the order denying the petition for rehearing is not itself an appealable order. This appeal, as counsel has pointed out, is only permitted by virtue of 18 U.S. Code 3731 providing for an appeal by the United States from the District Court directly to the Supreme Court on a judgment or decision dismissing an indictment where it's based on the invalidity or construction of a statute upon which the indictment is founded. An appeal from an order denying a petition for rehearing would surely be outside of the scope of 18 U.S. Code 3731. "Rule 11.2 of the Supreme Court rules provides that in these cases allowing for a direct appeal, the notice of appeal shall be filed by the Government within 30 days after the entry of the order appealed from. In the instant case, the notice of appeal was not filed until December 5, 1962, some 79 days after the entry of the order appealed from which is the order of dismissal of September 17th, 1962." The Government's appeal was, therefore, not filed properly within the 30-day period after the entry of the order. It is untimely and it should be dismissed on this basis. The time for appeal is jurisdictional.
Speaker: If this were a civil case, you're trying to appeal that this would be timely, wouldn't it?
Robert L. Shevin: Yes, sir. I will not refute that and I point out to the Court that in the Government's brief and they have answered us on the reply brief even though they didn't argue it orally. They cite only civil cases to support their position that they have a right to file a petition for rehearing but there is no statute, there is no rule, there is no precedent by case law or otherwise that entitles the Government to file a so-called petition for rehearing which in effect would therefore according to their position stay, extend, or told the time for appeal. And it is our position that in -- in this particular situation where the right of appeal is limited by statute, that the rule provides a 30-day period after the entry of the order appealed from and the all that the Government did within that 30-day period was to file a so-called petition for rehearing which is not authorized by statute, by rule or by previous case law. And then we contend of course that even if such a petition for rehearing would be authorized that it most surely does not extend at all or in anyway stay the time for appeal from running.
Speaker: (Inaudible)
Robert L. Shevin: Well Your Honor, let us refer if I may to the rules of civil procedure, we have rule 37 (a).2 which sets forth that a defendant is given 10 days to file a motion for new trial and that after this 10-day period runs, after the entry of the order denying the motion, he still has an additional 10-day period within which to appeal. Then the second provision of this rule says, however, the Government is given 30 days when they can appeal and it does not provide for a similar situation allowing the Government in a criminal case to extend the time by filing a petition. Now, the point is that in this rule, a federal rule of criminal procedure, we have a right given to a defendant which is not a corollary right given to the Government. Now, the only cases relied on by the Government in this instance is that where civil cases specifically by rule provide for petition for rehearings, they can file them. But there certainly has no provision for a petition for rehearing in the instant case and therefore, if it were filed, it surely should not stay the time for appeal. Now, this Court, in the case of United States versus Robinson, 361 U.S., 220, has previously held that the rules of criminal procedure as to the filing of a notice of appeal after the expiration of time does not confer jurisdiction upon the Court of Appeals even though the District Court found in that case that the light -- late filing was excusable neglect. The Court points out that to recognize a late notice of appeal is actually to enlarge the period of taking an appeal which is forfeit or otherwise as under the decision of the court below, many appeals might and almost surely would be indefinitely delayed. And the Court points out that to avoid this, the question of filing a notice of appeal is jurisdictional and there is no basis for allowing a petition for rehearing. Now, the Government does cite one case in their reply brief which is a criminal case, that is Craig versus the United States reported at 298 U.S. 637, wherein the defendant had filed -- had a petition for rehearing pending in the Circuit Court of Appeals and while this petition for rehearing was pending, he had simultaneously applied to this Court for writ of certiorari. This Court found that the petition was premature because the petition for rehearing had not yet been disposed off by the Circuit Court of Appeals. Most assuredly, this situation which is governed by rule allowing for a petition for rehearing in an appellate decision by the Circuit Court of Appeals cannot be extended to give any authority for the type of petition filed here which is a so-called petition for rehearing on the order denying the indictment or the order --
Speaker: (Inaudible)
Robert L. Shevin: No, sir. I have not.
Speaker: (Inaudible)
Robert L. Shevin: Alright, sir.
Speaker: (Inaudible)
Robert L. Shevin: It is our position that the rules and statutes governing this appeal are quite clear in their scope that to have properly appealed, the Government should have filed their appeal within 30 days after the entry that the order appealed from. In this instance, it was 79 days after the entry of the order. It was, therefore, untimely and this Court should dismiss the appeal for lack of jurisdiction. Now, addressing myself to the merits of the case, we have the first issue of whether the Federal Kidnapping Act is applicable to situations where there is an unlawful transportation for a lawful purpose. Now, the Kidnapping Act, 18 U.S.C. 1201, specifically provides and defines kidnapping as knowingly transporting in interstate or foreign commerce any person who has been unlawfully seized or carried away and held for ransom, reward or otherwise. In Count 1 of the indictment, the defendants were charged with an alleged violation of the Federal Kidnapping Act, 18 U.S.C. 1201, by allegedly forcing one Woodruff Mead (ph) at gunpoint and against his will to fly an aircraft that he was then piloting to with a four passengers, Cessna 172 to the Republic of Cuba which was done for the purpose of -- and here is the important provision, for the purpose of transporting the defendants from Dade County, Florida to Cuba. Now, regardless of what counsel states as far as the immigration requirements of the state department, surely there is not in this indictment any indication of any law being broken by flying from Dade County, Florida to the Republic of Cuba. The federal judge dismissed this count of the indictment in his order of September 17th, 1962 based on the courts' construction of the statute, in that he concluded that the facts as alleged do not state an offense under the Federal Kidnapping Act, that there's a failure to allege that Mead (ph) was kidnapped for a purpose within the meaning of ransom, reward or otherwise. Now, the Government has relied heavily on legislative history in the case of Gooch versus the United States, 297 U.S. 124. They cite legislative history on page 10 of their brief and they seem to indicate that it was the purpose of the Congress to extend the Act for any purpose -- for any purpose. They even emphasized this statement in their brief and they emphasized the statement in their oral argument for any reason or for any purpose. Now, the early Gooch case seems to bear this out. It seems to indicate that this Court will likewise apply this Kidnapping Act for any purpose. And yet, what do we have after the Gooch case? We have the case of Chatwin versus the United States, 326 U.S. 455, wherein it was recognized in that case that in the extension or interpretation as the Government would have us extend in the Federal Kidnapping Act was unworthy. We have in the Chatwin case a tempering, a more moderate approach notwithstanding legislative intent or history as emphasized by the Government and notwithstanding the ruling in the earlier Gooch case. It is our contention that the celestial marriage of a Mormon and a 15-year-old girl without her parent's consent in Chatwin versus the United States, 326 U.S. 455 which is quoted extensively on page 9 of our brief, is no less a benefit to that defendant as was the transportation from Florida to Cuba to the defendants who were charged with violation of the Kidnapping Act in the instant case. In the Gooch case, the alleged transportation of police officers was to prevent the arrest of their captives clearly an illegal purpose.In the instant case, there is nothing illegal alleged in being transported from Florida to Cuba as the District Court properly found the facts in the instant case are not within the scope of the Federal Kidnapping Act. All of the authority relied on by the Government involves unlawful transportation for the accomplishment of an unlawful purpose. The Federal Kidnapping Act with its severe penalties should not apply where the indictment alleges unlawful transportation for a lawful purpose. That is transportation from Florida to Cuba. Perhaps under these facts, there could be proper offenses alleged such as lesser state offenses or false arrest or false imprisonment but most assuredly, this does not fall within the scope of the Federal Kidnapping Act, 18 U.S. Code 1201 and this --
Earl Warren: Is it a law --
Robert L. Shevin: -- Court --
Earl Warren: Mr. Shevin, is it a -- is it a lawful purpose for -- for anyone to kidnap a pilot for the purpose of compelling him to transport to the kidnapper from one place to another without compensation --
Robert L. Shevin: Your Honor, we're --
Earl Warren: -- and against his will?
Robert L. Shevin: Your Honor, we're not defending the unlawful transportation. What we're saying is that under the Kidnapping Act, there are three things that must be alleged and proven. One is an unlawful seizure, the second is the transportation in interstate commerce, unlawfully and the third is for a specific purpose. Now, what we contend is that in all the authority that has previously been before this Court and other courts. True, there may have been properly alleged an unlawful seizure and true, there may have been properly alleged a transportation in interstate commerce but the purpose of the transportation as alleged in the indictment which was the basis of the Court's dismissal is to transport these people from -- from Florida to Cuba. Now, the Government has contended as they contended in the lower court that this falls within the meaning of ransom, reward or otherwise. We contend that this case -- Court since the Gooch case has recognized that not every unlawful transportation falls within the meaning of the word "otherwise" and that if this were so as this Court has held and has stated in Chatwin versus the United States on page 466. This Court stated where we -- this sanction a careless concept of a crime of kidnapping or are we to disregard the background and setting of this Act, the boundaries of potential liability would be lost in infinity. A loose construction of the statutory language conceivably could lead to the punishment of anyone who induced another to leave his surroundings so as to do either an innocent or an illegal act for the benefit of the former state line subsequently being transcribed. The absurdity of such a result with its attendant likelihood of unfair punishment and blackmail is sufficient by itself to foreclose this construction. Now, what we urge this Court to do is reject the position of the United States which we contend if upheld would sanction a careless concept of this very serious crime of kidnapping. Now, in this --
Earl Warren: But may I -- may I repeat my question to you and ask you if it isn't an unlawful purpose to kidnap a pilot for the purpose of compelling him to transport the kidnapper without paying it for and against his will.
Robert L. Shevin: This is a position taken by the Government, we contend --
Earl Warren: No I didn't asked you what --
Robert L. Shevin: Yes sir.
Earl Warren: -- their position was. I was asking --
Robert L. Shevin: Yes sir.
Earl Warren: -- you what your position is.
Robert L. Shevin: No, my position is that the actual purpose of transportation from Florida to Cuba is not in and off itself unlawful so as to come within the meaning of the Federal Kidnapping Act. As I indicated earlier, perhaps they have been guilty of the crime of false arrest or false imprisonment by state law but we're now dealing with the Federal Kidnapping Act and as such, it is our position that this Act requires an unlawful purpose such as in the Gooch case to prevent their capture. This is why they kidnapped the police officers to prevent their capture. In all of the cases involving the definition of otherwise, it has been for an illegal purpose to commit a robbery as indicated by counsel to commit a rape, to prevent capture. We're here dealing with allegedly a seizure of an individual against his will but for the purpose of transporting them from one place to another, and we contend that the transportation from one place to another is not itself an unlawful purpose and this is the basis of the distinction that we're trying to draw in the senses as indicated by this Court in the earlier cases.
Earl Warren: What do you think Congress meant when it changed the wording to say, "or for any other purpose?"
Robert L. Shevin: Congress obviously attempted to extend the doctrine to purposes other than pecuniary value, other than reward or ransom, but we still contend that Congress did not mean another warrant to the approach that would allow this Federal Kidnapping Act to apply to any asportation or seizure of an individual regardless of the --
Earl Warren: What is your authority for -- for so limiting it?
Robert L. Shevin: Well, we feel that the case that we cited referred to before this, the United States Supreme Court case of Chatwin versus the United States, appears to limit the thinking of the Gooch case and of the congressional intent.
Earl Warren: Is it in the Chatwin case, where you -- where you confronted with the statute which said -- or for any other purpose?
Robert L. Shevin: Yes, sir.
Earl Warren: But you said that.
Robert L. Shevin: Yes sir, the statute -- this is a newer case after the Gooch case, and the statute did read the same way.
Potter Stewart: The difference in the Chatwin case though is (Inaudible) and I read it, is that there, the Court found that that either that Chatwin or the other codefendants ever imposed any unlawful physical and mental restraints upon the movements of the victim, the other -- the younger girl who is the party to the celestial marriage. And here, all we have is the indictment but the indictment certainly alleges that the pilot was placed under restraining coercion.
Robert L. Shevin: Yes, sir. My -- my point in -- in referring to the Chatwin case is that it is indicative of what this Court has said previously that it will not allow an unwarranted or loose construction. Now, we're dealing with the facts in this indictment.
Potter Stewart: Yes.
Robert L. Shevin: We contend that to apply this Act so this indictment would allow such a construction.
Speaker: The Chatwin case was --
Robert L. Shevin: There was a --
Speaker: -- a seduction.
Robert L. Shevin: Yes, sir. That's correct.
Speaker: Well --
Potter Stewart: 60-year old --
Speaker: -- seduction.
Potter Stewart: 58-year old (Inaudible)
Robert L. Shevin: Well, the -- the -- of course the case came up on the question of the construction of the Kidnapping Act. This was the basis of the charge and this was the basis of the Court's opinion, a construction of that Act.
Speaker: (Inaudible)
Robert L. Shevin: Well, Your Honor, I'm reading the -- the basis of the Act under which these people are charged specifically requires a showing that it be for ransom, reward or otherwise and the indictment must so allege and it did allege that the otherwise in this case was for the purpose of transporting them from Florida to Cuba. And we contend that this is not -- that this Court should not extend the doctrine of otherwise to apply to a situation involving ostensibly a legal transportation from one place to another.
Speaker: (Inaudible)
Robert L. Shevin: Well, there must be some -- there must be some purpose because the code provision requires that a purpose be stated. This is one of the material allegations of alleging the crime of kidnapping.
Speaker: (Inaudible)
Robert L. Shevin: Yes, sir. I do not disagree with that. That that was the legislative intent to extend the doctrine to more than just ransom or reward. If I may address myself in the remaining few minutes --
Speaker: (Inaudible)
Robert L. Shevin: There are conflicting stories on that. The factual situation as indicated by the defendants in this case is that all three of these individuals, the two defendants and the pilot were involved in a joyride situation and were contributing and voluntarily going together to Cuba. They extensively rented an airplane and this pilot was allegedly giving them flying lessons and then they proceeded onto Cuba in its position, the defendants that he was in on the entire situation. They were going to Cuba to take photographs to sell them to a magazine here in the United States.
Speaker: But those are the facts that (Inaudible)
Robert L. Shevin: These are facts that have not -- that are not in the indictment, outside of the record.
Speaker: (Inaudible)
Robert L. Shevin: Excuse me?
Speaker: (Inaudible)
Robert L. Shevin: I'm not sure, I'm not sure of this. There's nothing alleged on this and I don't know whether the -- that particular date, whether or not there had been any doctrines set out by the state department or not. This was in April of 1962 and I'm not entirely sure.
Speaker: (Inaudible)
Robert L. Shevin: I don't know that, I cannot answer that.
Earl Warren: (Inaudible) to your case that I think that will be very easy to find out. Would you supply us a memorandum to that effect as to -- after your argument as to whether on this date it was unlawful to go to Cuba.
Robert L. Shevin: Yes sir, I can.
Earl Warren: And the other question that Mr. Justice Clark asked you.
Robert L. Shevin: Yes sir.
Earl Warren: You will -- you will --
Robert L. Shevin: Yes, sir.
Earl Warren: -- contend to show --
Robert L. Shevin: I will do that.
Earl Warren: -- the Government too. I'd like -- like to hear from the Government on that -- that point of either an argument or a memorandum with a -- not prepared (Inaudible)
William J. Brennan, Jr.: (Inaudible)
Robert L. Shevin: Yes, sir. I certainly would because the indictment has not so alleged.
William J. Brennan, Jr.: (Inaudible)
Robert L. Shevin: Well, I still feel that the indictment must allege an unlawful act and as such, the transportation if it were unlawful at that time by virtue of Department of State regulations should so state. The indictment should so state.
William J. Brennan, Jr.: (Inaudible)
Robert L. Shevin: I think that it should make reference to the regulation, yes sir.
Arthur J. Goldberg: You said this is (Inaudible) power of the revision of reimbursement, if so, does it produce all the (Inaudible)?
Robert L. Shevin: Well, I -- I --
Arthur J. Goldberg: (Inaudible)
Robert L. Shevin: Well, I certainly cannot defend the -- the morality of the Act.
Arthur J. Goldberg: (Inaudible)
Robert L. Shevin: I think that that in and off itself maybe -- may make one subject to criminal sanctions but not necessarily to a violation of the Federal Kidnapping Act.
Arthur J. Goldberg: (Inaudible)
Robert L. Shevin: Well there, you're referring Your Honor to the restrain of the individual. What I'm saying is that the Kidnapping Act requires you go further than merely showing the restraint that the restraint in and off itself does not establish kidnapping. It has to be shown to be for a purpose. Now, the restraint is not simply for a restraint itself.
Arthur J. Goldberg: (Inaudible)
Robert L. Shevin: If it's strictly for the purpose of the restraint itself because they just wanted to restraint the man, I would admit that this would probably come within the doctrine of kidnapping. But in this case, it was alleged to be for a specific purpose of transportation. If I may address myself to the question of air commerce an air --
Earl Warren: Should we --
Robert L. Shevin: -- craft in flight --
Earl Warren: Should we --
Robert L. Shevin: -- air commerce.
Earl Warren: -- take -- should we take judicial knowledge of the -- the relationship between the United States and Cuba at that particular time when the regulations -- in accordance with that relationship?
Robert L. Shevin: I had not explored that thinking because I thought that we would be primarily limited in our thinking to what was in the record in the indictment itself. I -- I don't think that -- that the regulations in existence at that time when you're concerned with the construction of -- of a statute and the dismissal of an indictment based on that statute would have the -- should necessarily have the credence of judicial knowledge or notice upon which they could proceed. I think that the Government here should have argued this point if they were going to rely on it and they have not and this -- it nowhere appears on the briefs or we would have responded to it at that time.
Speaker: (Inaudible)
Robert L. Shevin: If these were the basis of --
Speaker: (Inaudible)
Robert L. Shevin: -- if these were the basis upon which they would proceed but they haven't, they've alleged a specific purpose. The question of aircraft piracy is an interesting one and one that I think should be considered by this Court, the question of whether an aircraft in flight in air commerce applies only to commercial airliners engaged in the carriage of goods or person for hire. As counsel has indicated, the indictment charged the defendants with seizing an aircraft in flight in air commerce and the lower court dismissed the indictment on the basis that the allegations that it is a four-passenger Cessna 172, is indicative of a private airliner and that this statute was intended to cover only commercial airliners. Now, we strongly support this conclusion. We urge that this construction be upheld or in the alternative that this statute be struck as unconstitutional because it's vague in indefinite terminology. We're dealing here with a statute that provides for the death penalty, it is a capital crime. Now, let us consider for a few moments the very few that I have remaining that --
Earl Warren: Did he charged with attempt of crime here?
Robert L. Shevin: Yes, sir. Yes sir, it is.
Speaker: (Inaudible)
Robert L. Shevin: Air piracy, yes sir.
Speaker: (Inaudible)
Robert L. Shevin: Excuse me?
Speaker: (Inaudible)
Robert L. Shevin: The jury can recommend death -- death. Yes sir. Otherwise, it is a period of years up to life imprisonment. Now --
Earl Warren: Well --
Robert L. Shevin: -- in this particular --
Earl Warren: -- that is -- that the against with it -- do I understand that even though he's released without injury that it's capital offense?
Robert L. Shevin: Yes, sir.
Earl Warren: It is.
Robert L. Shevin: Yes sir. In the air piracy it is.
Earl Warren: In the air piracy.
Robert L. Shevin: The statute itself reached "whoever commits aircraft piracy shall be punishable" and then it goes on to define aircraft piracy as "any seizure or exercise of control by force or violence of any aircraft in flight in air commerce." Now, the Government throughout their brief in their argument would have this Court believe that the statute reads any aircrafts. It does not read any aircraft. It reads "an aircraft in flight in air commerce." Now, they say that when Congress intended to refer only to commercial airliners, they knew how to do it because in another provision of this same Act when it was amended in 1961, they have a provision referring to an air carrier in air transportation concerning itself with concealed weapons. However, this argument loses much of its weight when this Court considers and in still another section passed at the same time, Section 1472 (j). It has specifically pointed out with the use of the same language that anyone while aboard an aircraft in flight in air commerce assaults, intimidates or threatens any fight crew member or flight attendant including stewards and stewardesses of such aircrafts so as to interfere with the manner of performance shall be punished by the following penalties. Now, here the use of the same language not any aircraft but "an aircraft in -- in air commerce" specifically referring to a commercial airliner, in the very next section of the one that we are concerned with the interpretation of. Now, what conclusion can we reach? The Government says, "Let's look at congressional intent." Now, we say it is not overwhelming. Congressional intent indicates that the use of the words "interstate commerce" or "in air commerce" was used that this broad terminology was used in order to cover foreign as well domestic flights which carry large numbers of passengers. In the hearings before the House Aviation Subcommittee, representative Chelf said the he -- his Committee hopes to draft legislation that will cover the Cessna Commercial Airline property. Representative Blatnik said, "The piece of legislation before us is the way to approach the problem of high jacking and crimes aboard commercial aircrafts." Representative Johansen refers to the proposed legislation as any civil aircraft used or employed interstate commerce. And this particular rephrasing, any civil aircraft was used in his proposed legislation and this I think would clearly cover any aircraft, but this is not the language used in the Act under which this indictment was dismissed. We can go on, representative Ingle referred to by counsel here, refers to incidents aboard commercial airliners. There's a need for this type of legislation. He says, "We need to extend federal laws of piracy on the high seas to commercial aircraft" and why was this Act passed? There were five incidents that arose that prompted the passage of this act as pointed out in my brief within the congressional record. One was a national airlines plane that was forced to fly to Cuba on May 1st. Another is an --
Earl Warren: I think Mr. Shevin --
Robert L. Shevin: Eastern Airlines Jet.
Earl Warren: I think we'll have to -- but you get the rest of it from your brief because your time has expired in your part as you'd see from the red light.
Robert L. Shevin: I'm sorry I didn't notice. Thank you.
Earl Warren: Mr. Pollak.
Stephen J. Pollak: I just have two very brief points. In reliance on the Chatwin case, the Government would emphasize the point that has been made by Mr. Justices Stewart and Goldberg that -- that that case rested on the fact that there was -- the Court felt no evidence of an unwillingness of a none -- of the young girl to go with the -- the 68-year-old man. Indeed, the -- in the portion quoted in the appellee's brief, there are some material that's omitted and it reads this adding the material and I'm quoting from page 9 and page 464 of the Supreme Court report 326." The broadness of the statutory language does not permit us to tear the words out of their context using the magic of (Inaudible) to apply them to unattractive or immoral situations lacking and -- " now, I'm inserting the words that were omitted." The involuntariness of seizure and detention which is," and now I'm back at the quote, "the very essence of the crime of kidnapping." In our view, the Chatwin case is fully explainable by the fact that there was not there the involuntariness of seizure and detention which is the essence of kidnapping and which is here, and we -- we think that is the significance of that case. And indeed, we do not feel that our case in any way rests on the unlawfulness or lawfulness of a flight to Cuba because we -- we do not believe that there is any basis for the argument that the purpose must be an unlawful one.
William J. Brennan, Jr.: (Inaudible)
Stephen J. Pollak: Mr. Justice Brennan I don't think any point was made up and no argument was made until the brief on the merits that -- that the --
William J. Brennan, Jr.: (Inaudible)
Stephen J. Pollak: Yes, Your Honor.
William J. Brennan, Jr.: (Inaudible)
Stephen J. Pollak: That -- that is correct. The 26 federal register --
William J. Brennan, Jr.: (Inaudible)
Stephen J. Pollak: -- the Department of State public notice 179.
William J. Brennan, Jr.: (Inaudible)
Stephen J. Pollak: We -- we -- I believe that is -- we -- we only felt obliged -- I felt obliged since the argument was made that the purpose need to be unlawful and -- and since the appellees no longer contended the ground on which the District Judge had dismissed it. I felt obliged to make some response to that and that's the reason I looked into the legality --
William J. Brennan, Jr.: (Inaudible)
Stephen J. Pollak: Absolutely, absolutely. Let's take it, a flight from Dade County, Florida over to Georgia. We would -- we do not want it all to be understood as resting on the fact that flights to Cuba were lawful, unlawful or in any other sense, any flight under seizure. The contentions of the Government in response to the argument on the timeliness of its notice of appeal are in the reply briefs both on -- to the most, be dismissed on the jurisdictional statement and in the brief on the merits.
Earl Warren: We'll recess now.