Smith v. United States (360 U.S. 1)/Dissent Clark
Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, concurring in part and dissenting in part.
Johnny Ray Smith, presently an inmate of Alcatraz, began his career of crime as a juvenile. Soon thereafter he escaped from the Federal Correctional Institution at Tallahassee, Florida. At age 26 he had twice been convicted of violations of the Dyer Act, 18 U.S.C. § 2312, 18 U.S.C.A. § 2312, was serving 25 years in a Florida prison for armed robbery, and had seriously wounded an officer while fleeing from the scene of the latter crime. He, with two juvenile inmates, escaped the Florida prison, burglarized a house, stole a shotgun, and allegedly kidnaped Alan W. Spearman, Jr., at shotgun point, while the latter was sitting in his company's automobile. They forced Spearman to accompany them in the car across the Florida line into Alabama. There, after the release of Spearman, they abandoned the car and were later arrested in their hiding place under a building. Each admitted guilt and asked for a speedy trial. Smith advised the United States Commissioner, the Federal Bureau of Investigation, the prosecutor and the district judge that he did not want a lawyer; he waived indictment and venue, pleaded guilty to an information charging kidnaping and threw himself on the mercy of the court in these words:
'Well, your Honor, I would like for you to take under consideration that there was no viciousness in connection with this abduction of this boy. We were nice to him and did not harm him any way and we wanted transportation and did not harm him any at all.'
Smith received a 30-year sentence; the juveniles 15 years each. He was sent to Alcatraz and from there has prosecuted a series of motions under 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, appearing twice to testify in the District Court of Florida. The Court of Appeals has considered his case three times and he is now here attacking his sentence on two points: (1) Can a kidnaping charge, where the kidnaped person is released unharmed, be prosecuted by information; and, (2) Is due process violated when the trial judge, before a guilty plea is entered and outside the presence of the accused or his counsel, confers with an FBI agent concerning the facts of the charge and the prior record of the accused? The Court, without reaching the second question, says that kidnaping can be prosecuted only by indictment and that a charge in the general words of the statute is sufficient.
In attempting to do what it believes to be a great right the Court in reality does a great wrong to the administration of justice. The most serious result is that the Court's procedure allows the United States Attorney to secure an indictment for a dapital offense without the grand jury's knowing tat he is doing so. This deprives kidnaping defendants of the very protection of the Fifth Amendment that the Court professes to be enforcing. The Court also clouds the meaning of Rule 7(b) as to waiver of indictment by carving noncapital kidnaping offenses out of its specific permissive terms.
Both the Fifth Amendment and Rule 7(a) require capital offenses to be prosecuted by indictment. Kidnaping is not such an offense unless 'the kidnaped person has not been liberated unharmed.' 18 U.S.C. § 1201(a), 18 U.S.C.A. § 1201(a). It is reasonable to say that before one can be prosecuted for the capital offense he must be charged with it, namely, kidnaping where 'the kidnaped person has not been liberated unharmed.' To do otherwise does not place him on notice of the offense for which he is to be tried. The Court, however, holds that § 1201(a) creates a 'single offense * * * (which) is punishable by death if certain proof is introduced at trial.' It reasons that this makes every kidnaping a capital case requring grand jury action. But it does not require that the grand jury consider whether 'the kidnaped person has not been liberated unharmed' and so allege in the indictment. Thus the grand jury is deprived of any knowledge of the element of the offense that makes it capital. Hence a grand jury in complete ignorance of the facts as to harm suffered by the victim at the time of release is required to return an indictment which will support the death penalty if proof of such harm is shown at the trial. This puts the law as to capital cases into the hands of the prosecutor, not the grand jury, where both the Fifth Amendment and Rule 7(a) have lodged it. Nor does it strengthen the grand jury, to use the words of the Court, as a 'substantial safeguard against oppressive and arbitrary proceedings.' On the contrary, the Court's reference to discovery proceedings after indictment as a means for acquainting a defendant 'with the scope of the trial and the criminal transaction to be proved' clearly shows the fallacy of its position. The grand jury should have this information before it returns a capital charge, otherwise, none should exist under the indictment. By this reasoning, the Court deprives the defendant of the safeguard of proper grand jury proceedings as required by the Constitution in capital cases.
Moreover, as the Court says, '(i)t is neither procedurally correct nor practical to await the conclusion of the evidence to determine whether the accused is being prosecuted for a capital offense.' Despite this language, the opinion requires just that since it does not compel the indictment to charge 'a capital offense.' I would require capital kidnaping cases to be prosecuted by indictment charging specifically that the kidnaped person was not liberated unharmed.
Turning to the procedural point under Rule 7(a) and (b) we should remember it was this Court that adopted these Rules of Criminal Procedure, certified them to the Congress, which added its sanction, and then promulgated them. They are simple and clear. Rule 7(a) provides that an offense 'which may' be punished by death must begin by indictment, while a noncapital offense may be prosecuted by information, if indictment is waived. Rule 7(b) repeats that an offense 'which may' receive a sentence for a term of years 'may be' begun by information 'if the defendant, after he has been advised of the nature of the charge and of his rights, waivers in open court prosecution by indictment.' In filing the information under the Kidnaping Act, the Government forecloses itself from seeking the death penalty. The Fifth Amendment, as well as Rule 7(a), would prevent it from reneging on this bargain. The only possible sentence would, therefore, be one for a term of years. Moreover, Smith knew this full well, as is shown by his own testimony. Not only had the United States Attorney so advised but the United States Commissioner and the district judge had clearly told Smith of the law in the matter. His request at sentencing points up his understanding thereof. The record also indicates that the requirements of Rule 7(b) were scrupulously followed.
The Court, however, superimposes a new rule in kidnaping cases by requiring that they be begun only by indictment. This deprives such defendants not only of the beneficent provisions of Rule 7(b) but subjects them to greater jeopardy in that the United States Attorney may insist on the death penalty at trial. This leaves open for play all of the evils that flesh is heir to, including the ambitions or disfavor of the prosecutor, the animosity of the victim or his malingerings from the kidnaping as well as other post-indictment speculations. In rural districts where the grand jury only meets twice a year it would also place considerable hardship on a defendant waiting for a grand jury to be empaneled.  He receives no credit for the time so served and puts the Federal Government to the expense of incarceration in the local jail on a per diem basis. Nor would the calling of a special grand jury solve the problem. It would not only be very expensive to the Government but burdensome to those called to serve, likewise taking the time of the court from other pressing matters, either in its own district or in others that suffer from congested dockets. On the other hand, following Rule 7(b) would fully protect society. The defendant would be on notice of the charge against him and would receive the full enjoyment of all of his rights.  And, finally, the prosecutor would not be able, at his whim, to superinduce the death penalty on an otherwise noncapital case. In short, justice would be done.
It is true that three Courts of Appeals have passed on this statute. However, none of those cases is dispositive of the issue here. In Robinson v. United States, 6 Cir., 144 F.2d 392, 396, the indictment alleged that the accused did 'beat, injure, bruise and harm (Mrs. Stoll) * * * and did not liberate her unharmed.' It is, therefore, entirely inapposite since the indictment specifically alleged a capital offense. United States v. Parker, 3 Cir., 103 F.2d 857, in construing the then § 40 of the Judicial Code requiring trial of capital cases to be 'had in the county where the offense was committed, where that can be done without great inconvenience,' only decided that the application for change of venue was addressed to the sound discretion of the court, which 'was not abused.' It specifically held that '(w)hether such averments (that the victim had been released in a harmed condition) were necessary (in the indictment) to support a demand for the imposition of the death penalty we need not decide * * *.' Id., at page 861. The court concluded that 'since the evidence taken at the trial established that he was liberated * * * in a sound and unharmed condition,' ibid., the case, in any event, was not one in which the death penalty could be imposed. The last case mentioned by the majority is United States v. Parrino, 2 Cir., 180 F.2d 613. That case involved the statute of limitations and the issue involved here was not, as the court said, 'relevant to * * * whether the second indictment was found in time.' Id., at page 615. The Government contended that if the case was 'c apital' the indictment might be returned at any time. The court held that there was no information in the record as to the condition of the victim at the time of his release. Although it agreed with the Government 'that it was not necessary to allege that the victim was not released 'unharmed' in order that the jury might recommend the death-penalty,' it held that 'the accused has to be adequately advised of it (released harmed), since the jury must pass upon it, (and that) it will be enough if he gets the information in season from any source.' Ibid. Certainly the case is not dispositive of the issue here. In fact it supports the proposition that 'the accused must be adequately advised * * * in season' if the Government claims the victim was released 'harmed.' I say that 'adequately advised in season' would be certain only if such an allegation was made in the indictment. Whether from a technical standpoint that makes two offenses of the crime of 'kidnaping' is, therefore, not material. In my view, it does create two such offenses, (1) where the kidnaped person has not been released unharmed, and (2) where he has been liberated unharmed. In either event we should follow the mandate of the Fifth Amendment and Rule 7 and under our power of supervision over federal courts require in the future such procedural safeguards as are outlined herein.
This brings me to the second contention. I shall discuss the facts briefly. The 'inordinate speed' which the Court says was present here was not generated by the Government but by the petitioner himself. The record clearly shows his anxiety to have the case concluded and fails to indicate any objection on his part to the immediate imposition of sentence. The disposition of cases on information and plea in four to five days, as occurred here, is normal in the federal system. I therefore put no credence in this claim. However, the record does indicate that at the instance of an Assistant United States Attorney a Special Agent of the Federal Bureau of Investigation called upon the trial judge in his chambers and talked at some length about Smith's background as well as his connection with the kidnaping. This was before Smith had signed any waivers or entered any plea. Neither Smith nor any one representing him was present at the interview. The record shows this contact not to have been covertly made, for at the time of sentence the trial judge in open court told Smith that it had occurred. I do not reach the due process contention, for it appears to me that our duty of supervision over the administration of justice in the federal courts, McNabb v. United States, 1943, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819, requires reversal because of this interview. In a criminal case, such a private conference must be deemed presumptively prejudicial where, in violation of Fed.Rules Crim.Proc., 32(c)(1),  it was conducted prior to the plea.
For these reasons I would reverse the judgment with instructions that Smith be allowed to withdraw his guilty plea and stand trial on the information.
^1 The Court says that 'a defendant may, under appropriate circumstances, invoke the protection of the Sixth Amendment' where 'arrest and incarceration are followed by inordinate delay prior to indictment. * * *' Such has never been the case heretofore where capital cases are held awaiting the statutory meeting of the next grand jury. This strange doctrine can only cause additional confusion in the effective enforcement of the kidnaping statute.
^2 The Court in holding that proceeding by information 'would deprive defendants of the protection of a grand jury indictment as required by the Constitution and Rule 7(a)' overlooks the fact that neither the Constitution nor that Rule requires kidnaping to be charged by indictment where the victim is released unharmed.
^3 Rule 32(c)(1), Fed.Rules Crim.Proc., provides:
'(c) Presentence Investigation
'(1) When Made. The probation service of the court shall make a presentence investigation and report to the court before the imposition of sentence or the granting of probation unless the court otherwise directs. The report shall not be submitted to the court or its contents disclosed to anyone unless the defendant has pleaded guilty or has been found guilty.'