360 U.S.

1
79 S.Ct. 991
3 L.Ed.2d 1041

Johnny Ray SMITH, Petitioner,

v.
UNITED STATES of America.
No. 90.
Argued Jan. 21, 1959.
Decided June 8, 1959.

Mr. William B. Moore, Jr., Montgomery, Ala., for petitioner.

Mr. Leon Silverman, New York City, for respondent.
Mr. Chief Justice WARREN delivered the opinion of the Court.

The petitioner seeks relief under 28 U.S.C. 2255, 28 U.S.C.A. 2255,

fromhis conviction and sentence for violation of the Federal Kidnapping Act,
18 U.S.C. 1201, 18 U.S.C.A. 1201. Briefly, the kidnapping charge grew out
of the following facts: Petitioner, a young man of twenty-six, and two
seventeen-year-old boys, while in custody under state charges, escaped from a
Florida jail on November 12, 1949. They were almost immediately pursued by
men and bloodhounds through swampy everglade terrain. On November 14,
1949, they allegedly pre-empted an automobile and seized its owner forcing
him to accompany them into the State of Alabama where they released the
victim without harming him and subsequently abandoned the car. On
November 18, 1949, the defendants were arrested by federal authorities in a
hiding place under the floor of a building. Petitioner claimed that he was weak
from lack of food and sleep and that his back had been injured in the course of
the escape. The defendants were taken promptly before the United States
Commissioner where they were charged with transporting a kidnapping victim
across state boundaries.

On the following day, petitioner was interviewed at length by a government

agent concerning both the kidnapping offense and his prior record. There was a
conflict in the evidence concerning what transpired at this interview. The

petitioner testified that he was promised leniency if he would plead guilty and
that he was assured that the juveniles would be given no more than four years,
imprisonment if they pleaded guilty. The Government offered evidence to the
effect that no promises were made. In any event, on Monday morning,
November 21, 1949, petitioner and his codefendants were brought by the
government agent to the office of the United States Attorney where a
discussion ensued concerning waivers of indictments, counsel, and venue, and
pleas of guilty to an information which the United States Attorney proposed to
file.
3

While that conference was proceeding, the government agent who had
previously interviewed petitioner had a private out-of-court audience and
conference with the district judge in his chambers at which, in the absence of
the defendants, he discussed the contemplated proceedings with the judge and
informed him about the alleged kidnapping offense and other alleged crimes of
petitioner. Soon thereafter, and, in the words of the Court of Appeals, '(a)fter
the judge's mind had become thoroughly conditioned by this interview with,
and the disclosures made to him by, (the government agent) regarding the
defendants,' there followed in open court 'a stilted and formal colloquy
consisting of brief and didactic statements by the judge' that the defendants
could have a lawyer if they wished and could have their cases submitted to a
grand jury. 5 Cir., 238 F.2d 925, 927, note 5. The defendants, including
petitioner, stated that they did not wish to have an attorney and were willing to
waive indictment and be prosecuted under an information to be filed by the
prosecutor. The information was immediately filed and the defendants waived
counsel and venue.1 They then immediately pleaded guilty to the information
and stated that they wanted to be sentenced promptly before their parents knew
of their predicaments. The judge then sentenced petitioner to thirty years in the
penitentiary and the two seventeen-year-old accomplices to fifteen years each.
No appeals were taken.2

Because of these precipitous and telescoped proceedings, the case has had a
long and troublesome history in the Court of Appeals for the Fifth Circuit. It has
been three times before that court. Soon after the sentence was imposed,
petitioner filed his initial application under 2255 to vacate the judgment. The
application was denied without a hearing and no appeal was taken. In March
1954 petitioner filed a second, similar application which was likewise denied
without a hearing, but on appeal the Court of Appeals determined that
petitioner's allegations required a hearing. Smith v. United States, 5 Cir., 223
F.2d 750. After the hearing was held, the District Court again dismissed the
application. D.C., 137 F.Supp. 222. Again the Court of Appeals reversed, this
time finding that petitioner had been deprived of due process by the summary

manner in which the Government had proceeded against him.3 Smith v. United
States, 5 Cir., 238 F.2d 925, 930. First the court remanded the cause 'with
directions to grant the motion, to set aside the conviction and sentence, and to
proceed further and not inconsistently' with the opinion. 238 F.2d at page 931.
On rehearing, however, the court modified its directions as follows:
5

'The judgment is reversed and the cause is remanded with directions to set aside
the conviction and sentence and to proceed further and not inconsistently
herewith, including, if the district judge is of the opinion that the ends of justice
require it, permitting the defendant to withdraw his waiver of counsel and his
plea of guilty and to stand trial.' 5 Cir., 240 F.2d 347.

On the remanded proceedings, the District Court resentenced petitioner, but

refused him permission to withdraw his waivers and guilty plea. The Court of
Appeals affirmed this decision, Smith v. United States, 5 Cir., 250 F.2d 842,
over the dissent of Judge Rives who believed that the court's action in setting
aside the conviction on justified due process grounds necessarily required the
vacation of the plea of guilty. 250 F.2d 842, 843844. He also dissented on
the ground that kidnapping under 18 U.S.C. 1201, 18 U.S.C.A. 1201, is a
capital offense, which, pursuant to the Federal Rules of Criminal Procedure,
Rule 7(a), requires prosecution by indictment regardless of a defendant's
waiver, and that prosecution by information in the instant proceeding had not
conferred on the convicting curt jurisdiction to try petitioner's case. We granted
certiorari because of the serious due process and statutory questions raised. 357
U.S. 904, 78 S.Ct. 1153, 2 L.Ed.2d 1155. But in view of our belief that the
indictment point is dispositive of the case in petitioner's favor, we find it
unnecessary to reach the due process questions presented.

The precise question at issue, therefore, is whether petitioner's alleged violation

of the Kidnapping Act had to be prosecuted by indictment. A number of
statutory and constitutional provisions and the information charging petitioner
are relevant to this inquiry. The Fifth Amendment provides in part that '(n)o
person shall be held to answer for a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury,' except in cases not
pertinent here. But the command of the Amendment may be waived under
certain circumstances,4 and the Federal Rules of Criminal Procedure, Rule 7(a),
provide as follows:

'An offense which may be punished by death shall be prosecuted by indictment.

An offense which may be punished by imprisonment for a term exceeding one
year or at hard labor shall be prosecuted by indictment or, if indictment is
waived, it may be prosecuted by information. Any other offense may be

prosecuted by indictment or by information. An information may be filed

without leave of court.' (Emphasis added.)
9

These enactments become particularly pertinent in view of the language of 18

U.S.C. 1201, 18 U.S.C.A. 1201, the statute under which petitioner was
convicted, which provides in part that:

10

'(a) Whoever knowingly transports in interstate * * * commerce, any person

who has been unlawfully * * * kidnapped * * * shall be punished (1) by death
if the kidnapped person has not been liberated unharmed, and if the verdict of
the jury shall so recommend, or (2) by imprisonment for any term of years or
for life, if the death penalty is not imposed.'

11

The charging part of the information against petitioner stated that he 'did
knowingly transport in interstate commerce * * * a person, to wit, Alan W.
Spearman, Jr., who had been unlawfully seized, kidnapped, abducted, and
carried away and held for the safe conduct of the three defendants * * *.' The
charge did not state whether Spearman was released harmed or unharmed.

12

It has been held by two Courts of Appeals that indictments similar in terms to
the charge here were sufficient to support capital punishments despite the
absence of allegations that the kidnapping victims were released harmed.
United States v. Parrino, 2 Cir., 180 F.2d 613; Robinson v. United States, 6
Cir., 144 F.2d 392. Cf. United States v. Parker, 3 Cir., 103 F.2d 857. Petitioner
contends that these holdings dispose of his case because they make clear that
the statute creates a single offense of kidnapping which may be punished by
death if the prosecution, at trial, shows that the victim was released in a harmed
condition. The Government claims, however, that whether a specific
kidnapping constitutes a capital offense requires examination of the evidence to
determine whether the victim was released harmed or unharmed; in other
words, that the statute creates two offenses: kidnapping without harm, which is
punishable by a term of years, and kidnapping with harm, which is punishable
by death. Further, the Government contends that the mere filing of an
information by the United States Attorney eliminated the capital element of the
crime.

13

The Courts of Appeals which have been concerned with the statute have
uniformly construed it to create the single offense of transporting a kidnapping
victim across state lines. We agree with this construction. Under the statute,
that offense is punishable by death if certain proof is introduced at trial. When
an accused is charged, as here, with transporting a kidnapping victim across

state lines, he is charged and will be tried for anoff ense which may be
punished by death. Although the imposition of that penalty will depend on
whether sufficient proof of harm is introduced during the trial, that
circumstance does not alter the fact that the offense itself is one which may be
punished by death and thus must be prosecuted by indictment. In other words,
when the offense as charged is sufficiently broad to justify a capital verdict, the
trial must proceed on that basis, even though the evidence later establishes that
such a verdict cannot be sustained because the victim was released unharmed.
It 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. For the trial judge must make informed decisions prior to trial which
will depend on whether the offense may be so punished. He must decide,
among other things, whether the accused has the right to obtain a list of
veniremen and government witnesses, 18 U.S.C. 3432, 18 U.S.C.A. 3432,
whether venue is properly set, 18 U.S.C. 3235, 18 U.S.C.A. 3235, whether
the accused has the benefit of twenty rather than ten peremptory challenges,
Federal Rules of Criminal Procedure, Rule 24(b), whether indictment rather
than information is necessary, Federal Rules of Criminal Procedure, Rule 7,
and who may bail the accused. 18 U.S.C. 3141, 18 U.S.C.A. 3141.
14

This Court has, in recent years, upheld many convictions in the face of
questions concerning the sufficiency of the charging papers. Convictions are no
longer reversed because of minor and technical deficiencies which did not
prejudice the accused. E.g., Hagner v. United States, 285 U.S. 427, 52 S.Ct.
417, 76 L.Ed. 861; Williams v. United States, 341 U.S. 97, 71 S.Ct. 576, 95
L.Ed. 774; United States v. Debrow, 346 U.S. 374, 74 S.Ct. 113, 98 L.Ed. 92.
This has been a salutary development in the criminal law. But the substantial
safeguards to those charged with serious crimes cannot be eradicated under the
guise of technical departures from the rules. The use of indictments in all cases
warranting serious punishment was the rule at common law. Ex parte Wilson,
114 U.S. 417, 5 S.Ct. 935, 29 L.Ed. 89; Mackin v. United States, 117 U.S. 348,
6 S.Ct. 777, 29 L.Ed. 909. The Fifth Amendment made the rule mandatory in
federal prosecutions in recognition of the fact that the intervention of a grand
jury was a substantial safeguard against oppressive and arbitrary proceedings.
Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849; Hale v. Henkel, 201 U.S.
43, 26 S.Ct. 370, 50 L.Ed. 652; U.S. ex rel. Toth v. Quarles, 350 U.S. 11, 16, 76
S.Ct. 1, 4, 100 L.Ed. 8. Rule 7(a) recognizes that this safeguard may be waived,
but only in those proceedings which are noncapital. To construe the provisions
of the Rule loosely to permit the use of informations where, as here, the charge
states a capital offense, would do violence to that Rule and would make
vulnerable to summary treatment those accused of one of our most serious
crimes. We cannot do this in view of the traditional canon of construction

which calls for the strict interpretation of criminal statutes and rules in favor of
defendants where substantial rights are involved.
15

It is urged that this result will fail to protect substantial rights of defendants in
other cases. We see no merit in that contention, particularly where the opposite
conclusion would deprive defendants of the protection of a grand jury
indictment as required by the Constitution and Rule 7(a). Under our holding,
there is no reason to believe that a defendant in a case such as this would be
surprised on his trial by any possible trickery of the prosecution. If there is no
allegation of harm in the indictment, the discovery proceedings afforded in
capital cases and the provisions of Rule 7(f) authorizing bills of particulars will
enable the defendant to acquaint himself with the scope of the trial and the
criminal transaction to be proved. It is further suggested that it mightbe in the
interests of the defendant to have the benefit of the speed that can be mustered
by the filing of an information instead of an indictment. While justice should be
administered with dispatch, the essential ingredient is orderly expedition and
not mere speed. It is well to note that in this very case the inordinate speed that
was generated through the filing of the information caused many of the
difficulties which led the court below to conclude that petitioner had been
deprived of due process of law. Moreover, if, contrary to sound judicial
administration in our federal system, arrest and incarceration are followed by
inordinate delay prior to indictment, a defendant may, under appropriate
circumstances, invoke the protection of the Sixth Amendment.

16

Under our view of Rule 7(a), the United States Attorney did not have authority
to file an information in this case and the waivers made by petitioner were not
binding and did not confer power on the convicting court to hear the case. Cf.
Ex parte Wilson, supra. The judgment and conviction are reversed and the case
is remanded to the District Court with instructions to dismiss the information.

17

It is so ordered.

18

Judgment reversed and case remanded with instructions.

19

Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice
STEWART join, concurring in part and dissenting in part.

20

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:
21

'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.'

22

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.

23

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.

24

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.
25

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.

26

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.
27

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.1
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.2 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.

28

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.
29

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),3 it was conducted prior to the plea.
30

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.

18 U.S.C. 3235, 18 U.S.C.A. 3235, provides:

'The trial of offenses punishable with death shall be had in the county where the
offense was committed, where that can be done without great inconvenience.'
The Federal Rules of Criminal Procedure, Rule 18, 18 U.S.C.A., provide:
'Except as otherwise permitted by statute or by these rules, the prosecution shall
be had in a district in which the offense was committed, but if the district
consists of two or more divisions the trial shall be had in a division in which the
offense was committed.'
The offense of which petitioner was accused was committed in Dothan, Alaama
, which was within the Southern Division of the District Court. The
proceedings against petitioner were held in Montgomery, Alabama, which is
located in another county in Alabama in the Northern Division of that court.

This left petitioner with a substantial sentence still pending in Florida under the
charge for which he was in custody when he escaped. In addition, petitioner
was apparently still in jeopardy of state prosecution for escaping.

The Court of Appeals stated, at 238 F.2d 930:

'When it comes to the controlling question, however, which the motion
presents, whether under the undisputed facts the defendant was denied due
process in the taking of waivers and plea, and the imposition of sentence the
matter stands quite differently, and because it is clear that it was not accorded
to him, the judgment appealed from must be reversed.
'This is so, because, considering the inordinate speed, the incontinent haste,
with which the defendants were brought up for hearing and the trial moved on
apace, the fact that the government prosecuting agent and the district judge,

before the defendant had made any waivers or pleaded in the cause, conferred
privately in chambers with regard to defendants' guilt and the punishment to be
imposed therefor, in connection with both what was said and done and what
was left unsaid and undone by the judge in taking the waivers and the plea and
sentencing the defendant, we are left in no doubt that the movant was not
accorded, but was denied, due process, and that the judgment against, and
sentence imposed upon him may not stand.'
4

Barkman v. Sanford, 5 Cir., 162 F.2d 592; United States v. Gill, D.C., 55 F.2d
399.

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.

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.

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.'