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Justice Rehnquist | 1,985 | 19 | majority | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | effect such robbery he wounds the person having custody of such mail, money, or other property of the United States, or puts his life in jeopardy by the use of a dangerous weapon, or for a subsequent offense, shall be imprisoned twenty-five years." Both petitioners were sentenced to the 25-year prison term mandated by 2114 when the assault puts the custodian's life in jeopardy by use of a dangerous weapon.[2] On appeal the Court of Appeals for the Eleventh Circuit affirmed the judgments of conviction. The only issue before us on certiorari is whether the language "any money, or other property of the *73 United States" in 2114 includes the $1,800 belonging to the United States and entrusted to Agent Holmes as "flash money" in this case. Section 2114 prohibits the assault with intent to rob of "any person having lawful charge, control or custody of any mail matter or of any money or other property of the United States" (emphasis supplied). Petitioners contend that notwithstanding the reach of this language, Congress intended that only the robbery of "postal" money or property was to be covered by the statute. The enacted language of the statute is contrary to petitioners' argument. The language protects custodians of any mail matter, custodians of any United States money, and, in a catchall phrase, custodians of any other United States property. As in our recent case of "[n]othing on the face of the statute suggests a congressional intent to limit its coverage to persons [employed by the Postal Service]." The three classes of property protected by 2114 are each separated by the conjunction "or." Canons of construction indicate that terms connected in the disjunctive in this manner be given separate meanings. See In we refused to ignore the statutory meaning which would be presumed from similar disjunctive language, stating that the use of the term "or" indicates an intent to give the nouns their separate, normal meanings. In our case, Congress separated "mail matter," "money," and "other property" from one another by use of a disjunctive, and we think this means that the word "money" must be given its ordinary, separate meaning; it does not mean "postal money" or "money in the custody of postal employees." Petitioners contend that the language of the statute is ambiguous, and in support of this contention offer what seems to us a rather labyrinthine explanation of the statutory language. Petitioners first claim that the conjunction "or" *74 cannot properly be read to totally separate the three types of property listed in the prohibition; for if the word "or" indeed |
Justice Rehnquist | 1,985 | 19 | majority | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | listed in the prohibition; for if the word "or" indeed strictly separates the three types of property, the statute would proscribe assaults on custodians of any "money," whether or not it was money belonging to the United States, because the term "money" would not be modified or restricted by the term "of the United States" which follows the word "property." Thus Congress would have enacted a law, say petitioners, proscribing assaults on custodians of money by whomever owned, and "Congress would then have enacted a Federal robbery statute without any jurisdictional basis." Reply Brief for Petitioners 3. Because Congress could not have intended this absurd result, petitioners contend, there is an ambiguity in the statutory language. This contention, however, totally ignores the word "other" which follows "money" and shows that the money referred to, like the property referred to, is money belonging to the United States. Petitioners then develop their argument by invoking the principle of ejusdem generis to resolve the ambiguity which their analysis creates. Under that principle, of course, where general words follow an enumeration of specific terms, the general words are read to apply only to other items like those specifically enumerated. See Petitioners thus urge that "mail matter" is a specific term, and therefore the general terms "money" and "other property" which follow it must be read in the specific, restricted postal context. They conclude that "money" was intended to mean "postal money" and "other property of the United States" was intended to mean "other postal property." We said in Harrison that " ` "the rule of ejusdem generis, while firmly established, is only an instrumentality for ascertaining the correct meaning of words when there is uncertainty." ' " quoting United in turn quoting We are not persuaded that petitioners' analysis of the statutory language creates any ambiguity in the plain meaning of the words, and even if it did we do not think that the particular language here lends itself to the application of the ejusdem generis rule. We have previously noted that the terms in question are made separate and distinct from one another by Congress' use of the disjunctive; in addition, the term "mail matter" is no more specific a term and is probably less specific than "money." Notwithstanding petitioners' argument to the contrary, we are satisfied that the statutory language with which we deal has a plain and unambiguous meaning. While we now turn to the legislative history as an additional tool of analysis, we do so with the recognition that only the most extraordinary showing of contrary intentions from |
Justice Rehnquist | 1,985 | 19 | majority | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | that only the most extraordinary showing of contrary intentions from those data would justify a limitation on the "plain meaning" of the statutory language. When we find the terms of a statute unambiguous, judicial inquiry is complete, except in " `rare and exceptional circumstances,' " quoting Section 2114 had its genesis as a law to protect mail carriers from assault and robbery of mail matter. The forerunner to 2114 was 18 U.S. C. 320 (1934 ed., Supp. V). It proscribed assault and robbery of "any person having lawful charge, control, or custody of any mail matter." Section 320 had been placed in Chapter 8 of Title 18 of the United States Code. Chapter 8 was entitled "Offenses Against Postal Service." In 19, however, the 74th Congress amended 320 by appending after the term "mail matter" the clause "or of any money or other property of the United States." Section 320 as amended retained its place in Chapter 8 of Title 18 until 1948, when it was transferred to Chapter 103, which is entitled "Robbery and Burglary" and contains all of the federal statutes covering those crimes. Act of June 25, 1948, ch. 645, Section 320 was then renumbered as 2114; with the exception of minor particulars *76 the text of the statute has remained unchanged since the 19 amendment. Petitioners contend that the 19 amendment to 320 was not intended to expand the reach of that statute beyond postal crimes. In support of this they rely on some short colloquies from the House floor which they describe as "snippets." In surveying legislative history we have repeatedly stated that the authoritative source for finding the Legislature's intent lies in the Committee Reports on the bill, which "represen[t] the considered and collective understanding of those Congressmen involved in drafting and studying proposed legislation." We have eschewed reliance on the passing comments of one Member, and casual statements from the floor debates. United 3 U.S. 367, ; Consumer Product Safety In O', at we stated that Committee Reports are "more authoritative" than comments from the floor, and we expressed a similar preference in[3] The Committee Reports on this bill show no intent on the part of the 74th Congress to limit the amended 320 to less than the normal reach of its words. The House Report on the bill to amend 320 is entitled "SAFEGUARDING CUSTODIANS OF GOVERNMENT MONEYS AND PROPERTY" and states that "[t]he purpose of the pending *77 bill is to bring within the provisions of the Penal Code the crime of robbing or attempting to rob custodians of Government moneys." |
Justice Rehnquist | 1,985 | 19 | majority | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | of robbing or attempting to rob custodians of Government moneys." H. R. Rep. No. 582, 74th Cong., 1st Sess., 1 (19). The Senate Report on the 19 amendment is entitled "PROVIDING FOR PUNISHMENT FOR THE CRIME OF ROBBING OR ATTEMPTING TO ROB CUSTODIANS OF GOVERNMENT MONEYS OR PROPERTY," and the Senate Report states the purpose of the bill exactly like the House Report. S. Rep. No. 74th Cong., 1st Sess., 1 (19). Nowhere do the Committee Reports state that the amended statute required a "postal nexus" or was limited to postal crimes. Petitioners make a good deal of the fact that both Reports contain the letter from the Postmaster General, requesting enactment of the bill. That official's letter, however, says nothing about limiting the broad language of the bill to postal crimes, but instead speaks simply of "custodian[s] of Government funds," not of Government "mail." H. R. Rep. No. 582, ; S. Rep. No. In two places the Postmaster General's letter states that the bill was designed to punish the crime of "robbing or attempting to rob custodians of Government moneys." Thus the Committee Reports show that the Postmaster, and the two Committee responsible for the legislation, gave no evidence of their belief that the statute was limited to postal crimes. Petitioners rely heavily on the statement of Representative Dobbins, whom the dissent identifies as the floor manager, made on the floor of the House of Representatives on May 24, 19. Representative Dobbins stated: "The only purpose of the pending bill is to extend the protection of the present law to property of the United States in the custody of its postal officials. [L]et me say there are many custodians of postal stations who have a great amount of money in their custody but little mail." 79 Cong. Rec. 8205 (19). *78 We find a number of flaws in petitioners' argument that Representative Dobbins' statement is clear proof of Congress' intent. First, this snippet quotes Representative Dobbins out of context. The above-quoted statement was made in response to an objection from another Member concerning the mandatory 25-year penalty in the proposed statute. As one in favor of the bill, Representative Dobbins' attempt to limit the scope of the statute is best read in light of this objection. See To permit such colloquies to alter the clear language of the statute undermines the intent of Congress. See Isolated statements such as Representative Dobbins' are "not impressive legislative history." If they were, a statement of Representative Wolcott earlier in the same colloquy to the effect that "[t]his bill is confined to assaults |
Justice Rehnquist | 1,985 | 19 | majority | Garcia v. United States | https://www.courtlistener.com/opinion/111287/garcia-v-united-states/ | to the effect that "[t]his bill is confined to assaults on Federal law-enforcement officers," 79 Cong. Rec., at 8205, would seem to counterbalance the import of Representative Dobbins' statement. Thus petitioners would lose even if we were to adopt some type of reverse parol evidence rule, where oral statements were elevated above enacted language in determining the meaning of the statute. We think probably the strongest argument that may be made for limitation on the coverage of 2114, although petitioners do not themselves make it as such, is that set forth in the opinion of the Court of Appeals for the Second Circuit in United and amplified by our dissenting colleagues today. This argument is certainly not without persuasive power, and it would perhaps be controlling if there were substantial ambiguity in the language Congress had enacted. But there is no such ambiguity. We are not willing to narrow the plain meaning of even a criminal statute on the basis of a gestalt judgment as to what Congress probably intended. As a final argument petitioners assert that they are vindicated by the Solicitor General's earlier stipulation in United *79 vacated and remanded, In that case we were faced with the identical issue presented here, but we vacated and remanded in light of the Solicitor General's concession that 2114 only applied to postal crimes.[4] The Solicitor General now states that his concession in Hanahan was unwarranted. As we noted in 434 U.S. 3, 1 a governmental agency "is not disqualified from changing its mind" concerning the construction of a statute. See also Moreover, private agreements between litigants, especially those disowned, cannot relieve this Court of performance of its judicial function. It is our responsibility to interpret the intent of Congress in enacting 2114, irrespective of petitioners' or respondent's prior or present views. "[T]he proper administration of the criminal law cannot be left merely to the stipulation of [the] parties." We agree that the Solicitor General's prior concession was ill-advised, but it does not control this case. Petitioners seek to clip 2114 despite its plain terms, but "[t]he short answer is that Congress did not write the statute that way."[5] Instead, Congress *80 selected language that penalized assaults or robberies of anyone who is a custodian of "any money or other property of the United States." It is beyond question that by using a pistol in an effort to rob Agent Holmes, petitioners fell squarely within the prohibitions of the statute. The judgment of the Court of Appeals is therefore affirmed. It is so ordered. |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | A free society does not allow its government to try the same individual for the same crime until it’s happy with the result. Unfortunately, the Court today endorses a colossal exception to this ancient rule against double jeopardy. My colleagues say that the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime. So if all the might of one “sovereign” cannot succeed against the presumptively free individual, another may insist on the chance to try again. And if both manage to succeed, so much the better; they can add one punishment on top of the other. But this “separate sovereigns exception” to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would en- force that guarantee. I “Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization.”1 Throughout history, peo- ple have worried about the vast disparity of power be- —————— 1 2 GAMBLE v. UNITED STATES GORSUCH, J., dissenting tween governments and individuals, the capacity of the state to bring charges repeatedly until it wins the result it wants, and what little would be left of human liberty if that power remained unchecked. To address the problem, the law in ancient Athens held that “[a] man could not be tried twice for the same offense.”2 The Roman Republic and Empire incorporated a form of double jeopardy protec- tion in their laws.3 The Old Testament and later church teachings endorsed the bar against double jeopardy too.4 And from the earliest days of the common law, courts recognized that to “punish a man twice over for one of- fence” would be deeply unjust.5 The rule against double jeopardy was firmly entrenched in both the American colonies and England at the time of our Revolution.6 And the Fifth Amendment, which prohib- its placing a defendant “twice in jeopardy of life or limb” for “the same offence” sought to carry the traditional common law rule into our Constitution.7 As Joseph Story put it, the Constitution’s prohibition against double jeop- ardy grew from a “great privilege secured by the common law” and meant “that a party shall not be tried a second time for the same offence, after he has once been convicted, —————— 2 R. Bonner, Lawyers and Litigants in Ancient Athens 195 (1927). 3 J. Sigler, Double Jeopardy: The Development of a |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | (1927). 3 J. Sigler, Double Jeopardy: The Development of a Legal and Social Policy 2–3 ; Digest of Justinian: Digest 48.2.7.2, translated in 11 S. Scott, The Civil Law 17 4 See n. 4 ; Z. Brooke, The English Church and the Papacy 204–205, n. 1 (1931). 5 1 F. Pollock & F. Maitland, The History of English Law 448 (2d ed. 18). 6 See, e.g., The Massachusetts Body of Liberties of 1641, cl. 42, in The Colonial Laws of Massachusetts 42–43 (W. Whitmore ed. 18); 4 W. Blackstone, Commentaries on the Laws of England 335–336 (5th ed. 1773) (Blackstone, Commentaries); 2 W. Hawkins, Pleas of the Crown 368 (1762) (Hawkins). 7 Ex parte Lange, See also ; F. Wharton, Criminal Law of the United States 147 (1846). Cite as: 587 U. S. (2019) 3 GORSUCH, J., dissenting or acquitted of the offence charged, by the verdict of a jury, and judgment has passed thereon for or against him.”8 Given all this, it might seem that Mr. Gamble should win this case handily. Alabama prosecuted him for violat- ing a state law that “prohibits a convicted felon from possessing a pistol” and sentenced him to a year in prison.9 But then the federal government, apparently displeased with the sentence, charged Mr. Gamble under 18 U.S. C. with being a felon in possession of a firearm based on the same facts that gave rise to the state prose- cution. Ultimately, a federal court sentenced him to 46 months in prison and three years of supervised release. Most any ordinary speaker of English would say that Mr. Gamble was tried twice for “the same offence,” precisely what the Fifth Amendment prohibits. Tellingly, no one before us doubts that if either the federal government or Alabama had prosecuted Mr. Gamble twice on these facts and in this manner, it surely would have violated the Constitution. So how does the government manage to evade the Fifth Amendment’s seemingly plain command? On the govern- ment’s account, the fact that federal and state authorities split up the prosecutions makes all the difference. Though the Double Jeopardy Clause doesn’t say anything about allowing “separate sovereigns” to do sequentially what neither may do separately, the government assures us the Fifth Amendment’s phrase “same offence” does this work. Adopting the government’s argument, the Court supplies the following syllogism: “[A]n ‘offence’ is defined by a law, and each law is defined by a sovereign. So where there are two sovereigns, there are two laws, and two ‘offences.’ ” —————— 83 J. Story, Commentaries on the Constitution of the United States |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | J. Story, Commentaries on the Constitution of the United States p. 659 (1833). 9 Ex parte Taylor, ; see Ala. Code 11–70(2), 13A–11–72(a) (2015). 4 GAMBLE v. UNITED STATES GORSUCH, J., dissenting Ante, at 3–4. But the major premise of this argument—that “where there are two laws there are ‘two offenses’ ”—is mistaken. We know that the Constitution is not so easily evaded and that two statutes can punish the same offense.10 The framers understood the term “offence” to mean a “trans- gression.”11 And they understood that the same trans- gression might be punished by two pieces of positive law: After all, constitutional protections were not meant to be flimsy things but to embody “principles that are perma- nent, uniform, and universal.” As this Court explained long ago in Blockburger v. United States, “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.”13 So if two laws demand proof of the same facts to secure a conviction, they constitute a single offense under our Constitution and a second trial is forbidden. And by everyone’s admission, that is exactly what we have here: The statute under which the federal government pro- ceeded required it to prove no facts beyond those Alabama needed to prove under state law to win its conviction; the two prosecutions were for the same offense. That leaves the government and the Court to rest on the fact that distinct governmental entities, federal and state, enacted these identical laws. This, we are told, is enough to transform what everyone agrees would otherwise be the same offense into two different offenses. But where is that distinction to be found in the Constitution’s text or origi- —————— 10 Whalenv. United States, 11 Dictionarium Britannicum (N. Bailey ed. 1730); see also N. Web- ster, An American Dictionary of the English Language (1828) (defining an “offense” as including “[a]ny transgression of law, divine or human”). 4 Blackstone, Commentaries 3. 13 Cite as: 587 U. S. (2019) 5 GORSUCH, J., dissenting nal public understanding? We know that the framers didn’t conceive of the term “same offence” in some tech- nical way as referring only to the same statute. And if double jeopardy prevents one government from prosecut- ing a defendant multiple times for the same offense under the banner of separate statutory labels, on what account can it make a difference when many governments collec- tively seek to do the |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | difference when many governments collec- tively seek to do the same thing? The government identifies no evidence suggesting that the framers understood the term “same offence” to bear such a lawyerly sovereign-specific meaning. Meanwhile, Blackstone’s Commentaries explained how “Roman law,” “Athens,” “the Jewish republic,” and “English Law” ad- dressed the singular “offence of homicide,” and how the Roman, Gothic, and ancient Saxon law approached the singular “offence of arson.”14 Other treatises of the period contain similar taxonomies of “offences” that are not sovereign-specific.15 Members of the Continental Con- gress, too, used the word “offence” in this same way. In 1786, a congressional committee endorsed federal control over import duties because otherwise “thirteen separate authorities” might “ordain various penalties for the same offence.”16 In 1778, the Continental Congress passed a resolution declaring that a person should not be tried in state court “for the same offense, for which he had previ- ous thereto been tried by a Court Martial.”17 And in 1785, the Continental Congress considered an ordinance declar- ing that a defendant could “plead a formal Acquital on a Trial” in a maritime court “for the same supposed Offences, —————— 14 4 Blackstone, Commentaries 176–187, 15 See, e.g., 2 J. Bishop, Commentaries on the Criminal Law (5th ed. 1872) (discussing the singular offense of “burglary” by reference to the “common law,” English law, and the laws of multiple States). 16 30 Journals of the Continental Congress 440 (J. Fitzpatrick ed. 1934). 17 10 6 GAMBLE v. UNITED STATES GORSUCH, J., dissenting in a similar Court in one of the other United States.”18 In all of these examples, early legislators—including many of the same people who would vote to add the Fifth Amend- ment to the Bill of Rights just a few years later— recognized that transgressions of state and federal law could constitute the “same offence.” The history of the Double Jeopardy Clause itself sup- plies more evidence yet. The original draft prohibited “more than one trial or one punishment for the same offence.”19 One representative then proposed adding the words “by any law of the United States” after “same of- fence.”20 That proposal clearly would have codified the government’s sovereign-specific view of the Clause’s oper- ation. Yet, Congress proceeded to reject it. Viewed from the perspective of an ordinary reader of the Fifth Amendment, whether at the time of its adoption or in our own time, none of this can come as a surprise. Imagine trying to explain the Court’s separate sovereigns rule to a criminal defendant, then or now. Yes, you were sentenced to state prison for being |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | now. Yes, you were sentenced to state prison for being a felon in possession of a firearm. And don’t worry—the State can’t prosecute you again. But a federal prosecutor can send you to prison again for exactly the same thing. What’s more, that federal prosecutor may work hand-in-hand with the same state prosecutor who already went after you. They can share evidence and discuss what worked and what didn’t the first time around. And the federal prosecutor can pursue you even if you were acquitted in the state case. None of that offends the Constitution’s plain words protecting a person from being placed “twice in jeopardy of life or limb” for “the same offence.” Really? —————— 18 29 19 1 Annals of Cong. 753 (17). 20 Cite as: 587 U. S. (2019) 7 GORSUCH, J., dissenting II Without meaningful support in the text of the Double Jeopardy Clause, the government insists that the separate sovereigns exception is at least compelled by the structure of our Constitution. On its view, adopted by the Court today, allowing the federal and state governments to punish the same defendant for the same conduct “honors the substantive differences between the interests that two sovereigns can have” in our federal system. Ante, at 5. But this argument errs from the outset. The Court seems to assume that sovereignty in this country belongs to the state and federal governments, much as it once belonged to the King of England. But as Chief Justice Marshall explained, “[t]he government of the Union is emphatically, and truly, a government of the people,” and all sovereignty “emanates from them.”21 Alexander Ham- ilton put the point this way: “[T]he national and State systems are to be regarded” not as different sovereigns foreign to one another but “as ONE WHOLE.”22 Under our Constitution, the federal and state governments are but two expressions of a single and sovereign people. This principle resonates throughout our history and law. State courts that refused to entertain federal causes of action found little sympathy when attempting the very separate sovereigns theory underlying today’s decision.23 In time, too, it became clear that federal courts may decide state-law issues, and state courts may decide federal questions.24 Even in the criminal context, this Court has upheld removal of some state criminal actions to federal court.25 And any remaining doubt about whether the —————— 21 22 The Federalist No. 82, p. 494 (C. Rossiter ed. 1961). 23 See 24 25 See 8 GAMBLE v. UNITED STATES GORSUCH, J., dissenting States and the federal government are truly separate sovereigns was ultimately “resolved by |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | federal government are truly separate sovereigns was ultimately “resolved by war.”26 From its mistaken premise, the Court continues to the flawed conclusion that the federal and state governments can successively prosecute the same person for the same offense. This turns the point of our federal experiment on its head. When the “ONE WHOLE” people of the United States assigned different aspects of their sovereign power to the federal and state governments, they sought not to multiply governmental power but to limit it. As this Court has explained, “[b]y denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power.”27 Yet today’s Court invokes federalism not to protect indi- vidual liberty but to threaten it, allowing two governments to achieve together an objective denied to each. The Court brushes this concern aside because “the powers of the Federal Government and the States often overlap,” which “often results in two layers of regulation.” Ante, at 10. But the Court’s examples—taxation, alcohol, and mari- —————— 26 Testa,. The Court tries to make the most of McCulloch, pointing out that Chief Justice Marshall distinguished between “ ‘the people of a State’ ” and “ ‘the people of all the States.’ ” Ante, at 9. But of course our federal republic is composed of separate governments. My point is that the federal and state governments ultimately derive their sovereignty from one and the same source; they are not truly “separate” in the manner of, say, the governments of England and Portugal. The American people “ ‘split the atom of sover- eignty,’ ” ante, at 9, to set two levels of government against each other, not to set both against the people. McCulloch is consistent with that understanding. In holding that the States could not tax the national bank, McCulloch sought to ensure that the national and state govern- ments remained each in its proper sphere; it did not hold that the two governments could work in concert to abridge the people’s liberty in a way that neither could on its own. 27 ; see also New York v. United States, ; Alden v. Maine, 527 U.S. 706, 758 (1999); The Federalist No. 51. Cite as: 587 U. S. (2019) 9 GORSUCH, J., dissenting juana—involve areas that the federal and state governments each may regulate separately under the Constitution as interpreted by this Court. That is miles away from the separate sovereigns exception, which allows the federal and state governments to accomplish together what nei- ther may do separately consistent with the Constitution’s commands. |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | nei- ther may do separately consistent with the Constitution’s commands. As Justice Black understood, the Court’s view today “misuse[s] and desecrat[es] the concept” of fed- eralism.28 For “it is just as much an affront to human freedom for a man to be punished twice for the same offense” by two parts of the people’s government “as it would be for one to throw him in prison twice for the offense.”29 III A If the Constitution’s text and structure do not supply persuasive support for the government’s position, what about a more thorough exploration of the common law from which the Fifth Amendment was drawn? By 1791 when the Fifth Amendment was adopted, an array of common law authorities suggested that a prosecu- tion in any court, so long as the court had jurisdiction over the offense, was enough to bar future reprosecution in another court. Blackstone, for example, reported that an acquittal “before any court having competent jurisdiction of the offence” could be pleaded “in bar of any subsequent accusation for the same crime.”30 For support, Blackstone pointed to Beak v. Tyrhwhit,31 a 1688 case in which the reporter described an acquittal in a foreign country fol- lowed by an attempted second prosecution in England that the court held impermissible. Another treatise by William —————— 28 29 30 4 Blackstone, Commentaries 335, and n. j. 31 3 Mod. 194, 87 Eng. Rep. 4 (K. B.). 10 GAMBLE v. UNITED STATES GORSUCH, J., dissenting Hawkins likewise considered it “settled” as early as 1716 “[t]hat an Acquittal in any Court whatsoever, which has a Jurisdiction of the Cause, is as good a Bar of any subse- quent Prosecution for the same Crime.”32 What these authorities suggest many more confirm. Henry Bathurst’s 1761 treatise on evidence taught that “a final Determination in a Court having competent Jurisdic- tion is conclusive in all Courts of concurrent Jurisdic- tion.”33 Nor was this merely a rule about the competency of evidence, as the next sentence reveals: “If A. having killed a Person in Spain was there prosecuted, tried, and acquitted, and afterwards was indicted here [in England], he might plead the Acquittal in Spain in Bar.”34 Francis Buller’s 1772 treatise repeated the same rule, articulating it the same way.35 And to illustrate their point, both treatises cited the 1678 English case of King v. Hutchinson. Although no surviving written report of Hutchinson remains, several early common law cases— including Beak v. Thyrwhit,36 Burrows v. Jemino,37 and King v. Roche38—described its holding in exactly the same way the treatise writers did: All agreed that it barred the |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | the treatise writers did: All agreed that it barred the retrial in England of a defendant previously tried for murder in Spain or Portugal. When they envisioned the relationship between the national government and the States under the new Con- stitution, the framers sometimes referenced by way of comparison the relationship between Wales, Scotland, and —————— 32 2 Hawkins at 372 33 H. Bathurst, Theory of Evidence 39. 34 35 F. Buller, An Introduction to the Law Relative to Trials at Nisi Prius 241. 36 3 Mod. 194, 87 Eng. Rep. 4, sub nom. Beake v. Tyrrell, 1 Show. K. B. 6, Eng. Rep. 411, sub nom. Beake v. Tirrell, Comb. 0, 90 Eng. Rep. 379. 37 2 Str. 733, 93 Eng. Rep. 815 (K. B. 1726) 38 1 Leach 134, 168 Eng. Rep. 169 (K. B. 1775). Cite as: 587 U. S. (2019) 11 GORSUCH, J., dissenting England.39 And prosecutions in one of these places pretty plainly barred subsequent prosecutions for the same offense in the others. So, for example, treatises explained that “an Acquittal of Murder at a Grand Sessions in Wales, may be pleaded to an Indictment for the same Murder in England. For the Rule is, That a Man’s Life shall not be brought into Danger for the same Offence more than once.”40 Indeed, when an English county in- dicted a defendant “for a murder committed in Wales,” it was barred from proceeding when the court learned that the defendant had already been tried and acquitted “of the same offence” in Wales.41 Against this uniform body of common law weighs Gage v. Bulkeley—a civil, not criminal, case from 1744 that suggested Hutchinson had held only that the English courts lacked jurisdiction to try a defendant for an offense committed in Portugal. Because “the murder was commit- ted in Portugal,” Gage argued, “the Court of King’s Bench could not indict him, and there was no method of trying him but upon a special commission.”42 But no one else— not the treatise writers or the other English cases that favorably cited Hutchinson—adopted Gage’s restrictive reading of that precedent. In the end, then, it’s hard to see how anyone consulting the common law in 1791 could have avoided this conclu- sion: While the issue may not have arisen often, the great weight of authority indicated that successive prosecutions by different sovereigns—even sovereigns as foreign to each —————— 39 See, e.g., A. Amar, America’s Constitution: A Biography 45 (2005); The Federalist No. 5, pp. 50–51; The Federalist No. 17; Jay, An Address to the People of the State of New |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | An Address to the People of the State of New York, in Pamphlets on the Constitu- tion of the United States 84 (P. Ford ed. 1788). 40 2 Hawkins at 372. 41 King v. Thomas, 1 Lev. 118, 83 Eng. Rep. 326 (K. B. 1664). 42 Gage v. Bulkeley, Ridg. t. H. 263, 270–271, 27 Eng. Rep. 824, 827. (1794). GAMBLE v. UNITED STATES GORSUCH, J., dissenting other as England and Portugal—were out of bounds. And anyone familiar with the American federal system likely would have thought the rule applied with even greater force to successive prosecutions by the United States and a constituent State, given that both governments derive their sovereignty from the American people. Unable to summon any useful preratification common law sources of its own, the government is left to nitpick those that undermine its position. For example, the Court dismisses Beak because “Hutchinson is discussed only in the defendant’s argument in that case, not the court’s response.” Ante, But the Beak court did not reject the Hutchinson argument, and counsel’s use of the case sheds light on how 17th- and 18th-century lawyers under- stood the double jeopardy bar. The Court likewise derides King v. Thomas as “totally irrelevant” because in the 17th century, Wales and England shared the same laws. But our federal and state governments share the same funda- mental law and source of authority, and the Wales exam- ple is at least somewhat analogous to our federal system.43 Finally, the Court complains that Roche’s footnote citing Hutchinson was added only in 1800, after the Fifth Amendment’s ratification. Ante, But that is hardly a point for the government, because even so it provides an example of a later reporter attempting to describe the pre- existing state of the law; nor, as it turns out, was the footnote even essential to the Roche court’s original analy- sis and conclusion reached in 1775, well before the Fifth Amendment’s ratification.44 And among all these com- —————— 43 Indeed, though England ruled Wales at the time, a contemporane- ous lawyer might have thought that Wales’ authority to prosecute a defendant derived at least in part from its earlier status as “an absolute and undependent Kingdom” rather than purely from authority delegated by England. 1 Keb. 663, 83 Eng. Rep. 1172 (K. B. 1663); see United 44 Indeed, everything that matters was contained in the 1775 version Cite as: 587 U. S. (2019) 13 GORSUCH, J., dissenting plaints, we should not lose the forest for the trees. The Court’s attempts to explain away so many uncomfortable authorities are lengthy, detailed, |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | to explain away so many uncomfortable authorities are lengthy, detailed, even herculean. But in the end, neither it nor the government has mustered a single preratification common law authority approving a case of successive prosecutions by separate sovereigns for the same offense. B What we know about the common law before the Fifth Amendment’s ratification in 1791 finds further confirma- tion in how later legal thinkers in both England and America described the rule they had inherited. Start with England. As it turns out, “it would have been difficult to have made more than the most cursory exami- nation of nineteenth century or later English treatises or digests without encountering” the Hutchinson rule.45 In 1802, a British treatise explained that “an acquittal on a criminal charge in a foreign country may be pleaded in bar of an indictment for the same offence in England.”46 Three —————— of the Roche case report. Roche was indicted in England for a murder committed in South Africa. “To this indictment Captain Roche pleaded Autrefois acquit.” Roche, 1 Leach 134, 168 Eng. Rep. 169. In response, the prosecution asked the court to charge the jury both with “this issue [the plea of autrefois acquit], and that of Not guilty.” The court rejected that proposal, reasoning that “if the first finding was for the prisoner, they could not go to the second, because that finding would be a bar.” Far from saying “absolutely nothing” about double jeop- ardy, ante, Roche is a serious problem for the government be- cause it explicitly recognizes that a successful plea of autrefois acquit, even one based on a foreign conviction, would bar a prosecution in England. But the Court ignores this, focusing instead on the missing explanatory citation to Hutchinson that was, in any event, added shortly thereafter. 45 Grant, Successive Prosecutions by State and Nation: Common Law and British Empire Comparisons, 9–11 (1956) (footnotes omitted). 46 2 L. MacNally, Rules of Evidence on Pleas of the Crown 428 (1802); 14 GAMBLE v. UNITED STATES GORSUCH, J., dissenting decades later, another treatise observed (citing Hutchinson) that “[a]n acquittal by a competent jurisdic- tion abroad is a bar to an indictment for the same offence before any other tribunal.”47 In 1846, the Scottish High Court of Justiciary declared that “[i]f a man has been tried for theft in England, we would not try him again here.”48 Twentieth century treatises recited the same rule.49 In 1931, the American Law Institute stated that “[i]f a person has been acquitted in a court of competent jurisdiction for an offense in another country he may |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | competent jurisdiction for an offense in another country he may not be tried for the same offense again in an English Court.”50 And in 1, an English judge explained that the bar on “double jeop- ardy has always applied whether the previous convic- tion or acquittal based on the same facts was by an Eng- lish court or by a foreign court.”51 The Court today asks us to assume that all these legal authorities misunderstood the common law’s ancient rule. I would not. —————— see also 1 T. Starkie, Criminal Pleading 300–301, n. h (4); 1 J. Chitty, Criminal Law 458 (2d ed. 6). 47 J. Archbold, Pleading and Evidence in Criminal Cases (5th ed. 1834). Many more authorities are to the same effect. See, e.g., 1 Encyc. of the Laws of England, Autrefois aquit, 424–425 (A. Renton ed. 17); 2 J. Gabbett, Criminal Law 334 ; 2 E. Deacon, Digest of the Criminal Law of England 931 (1831); R. Matthews, Digest of Criminal Law 26 (1833); H. Nelson, Private International Law 368, n. y (18); 1 W. Russell, Crimes and Indictable Misdemeanors 471–472 (2d ed. 1826); H. Woolrych, Criminal Law 9 (1862); 2 M. Hale, Pleas of the Crown 255 ; H. Smith, Roscoe on the Law of Evidence 199 48 Her Majesty’s Advocate v. MacGregor, (1846) Ark. 49, 60. 49 A. Gibb, International Law of Jurisdiction in England and Scotland 285–286 (1926); A. Gibson & A. Weldon, Criminal and Magisterial Law 225 (7th ed. 1919); S. Harris, Criminal Law 377 (9th ed. 1901); C. Kenny, Outlines of Criminal Law 469 (10th ed. 1920); H. Cohen, Roscoe on the Law of Evidence 172 (13th ed. 1908). 50 ALI, Administration of Criminal Law p. 9 (Proposed Final Draft, Mar. 18, 1935). 51 Regina v. Treacy, [1] A. C. 537, 562, 2 W. L. R. 1, 5 (opinion of Diplock, L. J.) (citing Roche, 1 Leach 134, 168 Eng. Rep. 169). Cite as: 587 U. S. (2019) 15 GORSUCH, J., dissenting Even more pertinently, consider how 18th-century Americans understood the double jeopardy provision they had adopted. The legal treatises an American lawyer practicing between the founding and the Civil War might have consulted uniformly recited the Hutchinson rule as black letter law. Chancellor Kent wrote that “the plea of autrefois acquit, resting on a prosecution [in] any civilized state, would be a good plea in any other civilized state.”52 Thomas Sergeant explained that “[w]here the jurisdiction of the United States court and of a state Court is concur- rent, the sentence of either court, whether of conviction or acquittal, may be |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | of either court, whether of conviction or acquittal, may be pleaded in bar to a prosecution in the other.”53 William Rawle echoed that conclusion in virtually identical words.54 Indeed, one early commentator wrote that a “principal reason” for the Double Jeopardy Clause was to prevent successive state and federal prosecutions, which he considered to be against “[n]atural justice.”55 Nor did these treatises purport to invent a new rule; they claimed only to recite the traditional one. This Court’s early decisions reflected the same principle. In Houston v. a Pennsylvania court-martial tried a member of the state militia for desertion under an “act of the legislature of Pennsylvania.”56 The defendant objected that the state court-martial lacked jurisdiction because federal law criminalized the same conduct and prosecuting him in the state court could thus expose him to double jeopardy. In an opinion by Justice Washington, the Court disagreed and allowed the prosecution, but reassured the defendant that “if the jurisdiction of the two Courts be concurrent, the sentence of either Court, either of convic- —————— 52 1 Commentaries on American Law 176 (1826). 53 Constitutional Law 278 (1830). 54 View of the Constitution 191 (1825). 55 J. Bayard, Brief Exposition of the Constitution of the United States 150– (1845). 56 16 GAMBLE v. UNITED STATES GORSUCH, J., dissenting tion or acquittal, might be [later] pleaded in bar of the prosecution before the other.”57 In dissent, Justice Story thought the state court lacked jurisdiction because other- wise the defendant would be “liable to be twice tried and punished for the same offence, against the manifest intent of the act of Congress, the principles of the common law, and the genius of our free government.”58 But notice the point of agreement between majority and dissent: Both acknowledged that a second prosecution for the same underlying offense would be prohibited even if brought by a separate government.59 Another case decided the same year also reflected the Hutchinson rule. In United States v. Furlong, one British subject killed another on the high seas, and the killer was indicted in an American federal court for robbery and murder. This Court unanimously held that “[r]obbery on the seas is considered as an offence within the criminal jurisdiction of all nations” that can therefore be “punished by all,” and there can be “no doubt that the plea of autre fois acquit [double jeopardy] would be good in any civilized State, though resting on a prosecution instituted in the Courts of any other civilized State.”60 —————— 57 at 31. 58 59 The Court insists that Houston involved an unusual state |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | 59 The Court insists that Houston involved an unusual state statute that “imposed state sanctions for violation of a federal criminal law.” Ante, at 23. But so what? Everyone involved in Houston agreed that the defendant had been tried by a Pennsylvania court, under a Penn- sylvania statute, passed by the Pennsylvania Legislature. And though there were separate sovereigns with separate laws, everyone agreed there was only one offense. 60 84, To be sure, Furlong proceeded to indi- cate that an acquittal for murder in an American court would not have prohibited a later prosecution in a British court in this case. But that was only because the British courts would not have recognized the jurisdiction of an American court to try a murder committed by a British subject on the high seas. Furlong’s discussion is therefore perfectly consistent with the Hutchinson principle—a rule that applied Cite as: 587 U. S. (2019) 17 GORSUCH, J., dissenting A number of early state cases followed the same rule. Indeed, the Court today acknowledges that Massachu- setts, Michigan, and Vermont all followed Hutchinson. Ante, at 22.61 The Court agrees that South Carolina did too,62 but it believes that a later South Carolina case might have deviated from the Hutchinson rule. That decision, however, contains at best only “an inconclusive discussion coming from a State whose highest court had previously stated unequivocally that a bar against double prosecutions would exist.”63 In the face of so much contrary authority, the Court winds up leaning heavily on a single 1794 North Carolina Superior Court decision, State v. Brown. But the Court’s choice here is revealing. True, Brown said that a verdict in North Carolina would not be “pleadable in bar to an indictment preferred against [the defendant] in the Terri- tory South of the Ohio.”64 But the Court leaves out what happened next. Brown went on to reject concurrent juris- diction because trying the defendant “according to the several laws of each State” could result in him being “cropped in one, branded and whipped in another, impris- oned in a third, and hanged in a fourth; and all for one and the same offence.”65 The North Carolina court viewed that result as “against natural justice” and “therefore [could] not believe it to be law.”66 So it is that the principal sup- port the Court cites for its position is a state case that both —————— only when both courts had “competent jurisdiction of the offence” and could actually place the defendant in jeopardy. See 4 Blackstone, Commentaries 365. 61 Citing ; Harlan v. People, 2 ; |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | Commentaries 365. 61 Citing ; Harlan v. People, 2 ; (Vt. 1827). 62 State v. Antonio, 7 S. C. L. 776 (6). 63 –159 64 65 66 18 GAMBLE v. UNITED STATES GORSUCH, J., dissenting (1) regarded transgressions of the laws of a State and a U. S. territory as the “same offence,” and (2) expressed aversion at the thought of both jurisdictions punishing the defendant for that singular offense.67 IV With the text, principles of federalism, and history now arrayed against it, the government is left to suggest that we should retain the separate sovereigns exception under the doctrine of stare decisis. But if that’s the real basis for today’s result, let’s at least acknowledge this: By all ap- pearances, the Constitution as originally adopted and understood did not allow successive state and federal prosecutions for the same offense, yet the government wants this Court to tolerate the practice anyway. Stare decisis has many virtues, but when it comes to enforcing the Constitution this Court must take (and always has taken) special care in the doctrine’s applica- tion. After all, judges swear to protect and defend the Constitution, not to protect what it prohibits. And while we rightly pay heed to the considered views of those who have come before us, especially in close cases, stare decisis isn’t supposed to be “the art of being methodically ignorant of what everyone knows.”68 Indeed, blind obedience to stare decisis would leave this Court still abiding grotesque errors like Dred Scott v. Sandford,69 Plessy v. Ferguson,70 —————— 67 Perhaps the only early state-law discussion that truly supports the Court’s position is dicta in an 1834 Virginia decision. Hendrick v. Commonwealth, Yet even that support proves threadbare in the end, given that “the highest court of the same State later ex- pressed the view that such double trials would virtually never occur in our country.” ). 68 R. Cross & J. Harris, Precedent in English Law, intro. comment (attributing the aphorism to Jeremy Bentham). 69 70 Cite as: 587 U. S. (2019) 19 GORSUCH, J., dissenting and Korematsu v. United States.71 As Justice Brandeis explained, “in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier deci- sions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is ap- propriate also in the judicial function.”72 For all these reasons, while stare decisis warrants re- spect, it has never been “ ‘an inexorable command,’ ”73 |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | spect, it has never been “ ‘an inexorable command,’ ”73 and it is “at its weakest when we interpret the Constitution.”74 In deciding whether one of our cases should be retained or overruled, this Court has traditionally considered “the quality of the decision’s reasoning; its consistency with related decisions; legal developments since the decision; and reliance on the decision.”75 Each of these factors, I believe, suggests we should reject the separate sovereigns exception. Take the “quality of [the] reasoning.”76 The first cases to suggest that successive prosecutions by state and federal authorities might be permissible did not seek to address the original meaning of the word “offence,” the troubling federalism implications of the exception, or the relevant historical sources. Between 1847 and 1850, the Court decided a pair of cases, United States v. Marigold77 and Fox v. Ohio.78 While addressing other matters in those decisions, the Court offered passing approval to the possi- —————— 71 72 (footnotes omitted). 73 74 U.S. 75 Franchise Tax Bd. of Cal. v. Hyatt, ante, at (slip op., at 17). 76 Janus v. State, County, and Municipal Employees, 585 U.S. (2018) (slip op., at 35). 77 78 20 GAMBLE v. UNITED STATES GORSUCH, J., dissenting bility of successive state and federal prosecutions, but did so without analysis and without actually upholding a successive conviction. Indeed, in place of a careful consti- tutional analysis, the Fox Court merely offered its judg- ment that “the benignant spirit” of prosecutors could be relied on to protect individuals from too many repetitive prosecutions.79 We do not normally give precedential effect to such stray commentary. Perhaps the first real roots of the separate sovereigns exception can be traced to this Court’s 1852 decision in v. Illinois.80 As it did five years later and more notoriously in Dred Scott,81 the Court in did vio- lence to the Constitution in the name of protecting slavery and slaveowners. In Dred Scott the Court held that the Due Process Clause prevented Congress from prohibiting slavery in the territories, though of course the Clause did nothing of the sort.82 And in the Court upheld a state fugitive slave law that it judged important because the States supposedly needed “to protect themselves against the influx either of liberated or fugitive slaves, and to repel from their soil a population likely to become bur- densome and injurious, either as paupers or criminals.”83 The defendant, who had harbored a fugitive slave, objected that upholding the state law could potentially expose him to double prosecutions by the state and federal govern- ments. The Court rejected that argument, reasoning simply |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | federal govern- ments. The Court rejected that argument, reasoning simply that such double punishment could be consistent with the Constitution if the defendant had violated both state and federal law.84 Yet notably, even here, the Court did not actually approve a successive prosecution. —————— 79 80 81 82 83 84 Cite as: 587 U. S. (2019) 21 GORSUCH, J., dissenting Nor did the trajectory of the separate sovereigns excep- tion improve much from there. The first time the Court actually approved an “instance of double prosecution [and] failed to find some remedy to avoid it” didn’t arrive until 1922.85 In that case, United States v. Lanza,86 the federal government prosecuted the defendants for manu- facturing, transporting, and possessing alcohol in violation of the National Prohibition Act. The defendants argued that they had already been prosecuted by the State of Washington for the same offense. But, notably, the de- fendants did not directly question the permissibility of successive prosecutions for the same offense under state and federal law. Instead, the defendants argued that both of the laws under which they were punished really derived from the “same sovereign:” the national government, by way of the Eighteenth Amendment that authorized Prohi- bition. After rejecting that argument as an “erroneous view of the matter,” the Court proceeded on, perhaps unnecessarily, to offer its view that “an act denounced as a crime by both national and state sovereignties is an of- fense against the peace and dignity of both and may be punished by each.”87 Given that the Court was not asked directly to consider the propriety of successive prosecu- tions under separate state and federal laws for the same offense, it is perhaps unsurprising the Court did not con- sult the original meaning of the Double Jeopardy Clause or consult virtually any of the relevant historical sources before offering its dictum. It matters, too, that these cases “were decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of those decisions.”88 In —————— 85 Grant, The Lanza Rule of Successive Prosecutions, 32 Colum. L. Rev. 1309, 1311 86 87 88 22 GAMBLE v. UNITED STATES GORSUCH, J., dissenting Justice McLean wrote that although “the Federal and State Governments emanate from different sovereignties,” they “operate upon the same people, and should have the same end in view.” He “deeply regret[ted] that our gov- ernment should be an exception to a great principle of action, sanctioned by humanity and justice.”90 and Abbate, cases decided in the 1950s that more clearly approved the separate sovereigns exception, were decided only by 5-to-4 and 6-to-3 |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | separate sovereigns exception, were decided only by 5-to-4 and 6-to-3 margins, and Justice Black’s eloquent dissents in those cases have triggered an ava- lanche of persuasive academic support.91 What is more, the “underpinnings” of the separate sovereigns exception have been “erode[d] by subsequent decisions of this Court.”92 When this Court decided Lanza, and Abbate, the Double Jeopardy Clause applied only to the federal government under this Court’s decision in Palko v. Connecticut.93 In those days, one might have thought, the separate sovereigns exception at least served to level the playing field between the federal government and the States: If a State could retry a de- fendant after a federal trial, then the federal government ought to be able to retry a defendant after a state trial. But in time the Court overruled Palko and held that the Double Jeopardy Clause does apply to the States—and, —————— 90 91 See,e.g., Cassell, The Rodney King Trials and the Double Jeopardy Clause: Some Observations on Original Meaning and the ACLU’s Schizophrenic Views of the Dual Sovereign Doctrine, 41 UCLA L. Rev. 693, 708–720 (1994); Braun, Praying to False Sovereigns: The Rule Permitting Successive Prosecutions in the Age of Cooperative Federal- ism, ; Amar & Marcus, Double Jeopardy Law After Rodney King, 6–15 ; King, The Problem of Double Jeopardy in Successive Federal-State Prosecutions: A Fifth Amendment Solution, (9). 92 United 93 Cite as: 587 U. S. (2019) 23 GORSUCH, J., dissenting with that, a premise once thought important to the excep- tion fell away.94 Nor has only the law changed; the world has too. And when “far-reaching systemic and structural changes” make an “earlier error all the more egregious and harm- ful,” stare decisis can lose its force.95 In the era when the separate sovereigns exception first emerged, the federal criminal code was new, thin, modest, and restrained. Today, it can make none of those of boasts. Some suggest that “the federal government has [now] duplicated vir- tually every major state crime.”96 Others estimate that the U. S. Code contains more than 4,500 criminal statutes, not even counting the hundreds of thousands of federal regu- lations that can trigger criminal penalties.97 Still others suggest that “ ‘[t]here is no one in the United States over the age of 18 who cannot be indicted for some federal crime.’ ”98 If long ago the Court could have thought “the benignant spirit” of prosecutors rather than unwavering enforcement of the Constitution sufficient protection against the threat of double prosecutions, it’s unclear how we still might. That leaves reliance. But the only people who have relied on |
Justice Gorsuch | 2,019 | 7 | dissenting | Gamble v. United States | https://www.courtlistener.com/opinion/4630268/gamble-v-united-states/ | leaves reliance. But the only people who have relied on the separate sovereigns exception are prosecu- tors who have sought to double-prosecute and double- —————— 94 95 South Dakota v. Wayfair, Inc., 585 U.S. (2018) (slip op., at 18) (internal quotation marks omitted). 96 E. Meese, Big Brother on the Beat: The Expanding Federalization of Crime, 1 Texas L. Rev. L. & Pol’y 1, 22 97 See Wilson, That Justice Shall Be Done, 36 No. Ill. L. Rev. 111, 1 (2015). 98 Clark & Joukov, Criminalization of America, 76 Ala. L. 225 (2015). See also Larkin, Public Choice Theory and Overcriminalization, 36 Harv. J. L. Pub. Pol’y 715, 726 (2013) (“There are so many federal criminal laws that no one, including the Justice Department, the principal federal law enforcement agency, knows the actual number of crimes”). 24 GAMBLE v. UNITED STATES GORSUCH, J., dissenting punish. And this Court has long rejected the idea that “law enforcement reliance interests outweig[h] the interest in protecting individual constitutional rights so as to warrant fidelity to an unjustifiable rule.”99 Instead, “[i]f it is clear that a practice is unlawful, individuals’ interest in its discontinuance clearly outweighs any law enforcement ‘entitlement’ to its persistence.”100 That is the case here. The Court today disregards these lessons. It worries that overturning the separate sovereigns rule could un- dermine the reliance interests of prosecutors in transna- tional cases who might be prohibited from trying individu- als already acquitted by a foreign court. Ante, at 7. Yet even on its own terms, this argument is unpersuasive. The government has not even attempted to quantify the scope of the alleged “problem,” and perhaps for good rea- son. Domestic prosecutors regularly coordinate with their foreign counterparts when pursuing transnational crimi- nals, so they can often choose the most favorable forum for their mutual efforts. And because Blockburger requires an identity of elements before the double jeopardy bar can take hold, domestic prosecutors, armed with their own abundant criminal codes, will often be able to find new offenses to charge if they are unsatisfied with outcomes elsewhere. * * * Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs. It is not for this Court to reassess this judgment to make the prosecutor’s job easier. Nor is there any doubt that the benefits the framers saw in prohibiting double prosecutions remain real, and maybe more vital —————— 99 100 Cite as: 587 U. S. (2019) 25 GORSUCH, J., dissenting than ever, today. When |
Justice O'Connor | 1,985 | 14 | concurring | Brockett v. Spokane Arcades, Inc. | https://www.courtlistener.com/opinion/111480/brockett-v-spokane-arcades-inc/ | Only days after the State of Washington adopted the moral nuisance law at issue here, appellees launched a constitutional attack in Federal District Court. Although the statute has never been enforced or authoritatively interpreted by a state court, appellees allege that it applies to constitutionally protected expression and is facially invalid. Because I believe that the federal courts should have abstained and allowed the Washington courts an opportunity to construe the state law in the first instance, I think the proper disposition of these cases would be to vacate the judgment of the Court of Appeals on that ground. The Court, however, rejects that course and reaches the merits of the controversy. I join the opinion of the Court because I agree that the Court of Appeals erred in declaring the statute invalid on its face. *508 Although federal courts generally have a duty to adjudicate federal questions properly before them, this Court has long recognized that concerns for comity and federalism may require federal courts to abstain from deciding federal constitutional issues that are entwined with the interpretation of state law. In Railroad the Court held that where uncertain questions of state law must be resolved before a federal constitutional question can be decided, federal courts should abstain until a state court has addressed the state questions. ; see also Hawaii Housing This doctrine of abstention acknowledges that federal courts should avoid the unnecessary resolution of federal constitutional issues and that state courts provide the authoritative adjudication of questions of state law. Attention to the policies underlying abstention makes clear that in the circumstances of these cases, a federal court should await a definitive construction by a state court rather than precipitously indulging a facial challenge to the constitutional validity of a state statute. There can be no doubt that a state obscenity statute concerns important state interests. Such statutes implicate "the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself." Paris Adult Theatre The nature of the overbreadth claim advanced by appellees suggests that abstention was required because the Washington statute is "fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question." The First Amendment overbreadth doctrine allows a challenge to the validity of a statute on its face only if the law is substantially overbroad. City Council of Los ; New 4 U.S. 747, Thus, analysis of the constitutional claims advanced by appellees necessarily *509 requires construction of the Washington statute to assess its scope. ; Furthermore, |
Justice O'Connor | 1,985 | 14 | concurring | Brockett v. Spokane Arcades, Inc. | https://www.courtlistener.com/opinion/111480/brockett-v-spokane-arcades-inc/ | of the Washington statute to assess its scope. ; Furthermore, a narrowing construction of a statute might obviate any challenge on overbreadth grounds. E. g., Where a state statute has never been construed or applied, it seems rather obvious that interpretation of the statute by a state court could substantially alter the resolution of any claim that the statute is facially invalid under the Federal Constitution. The Court of Appeals opined that the Washington statute is not susceptible to a limiting construction and therefore any interpretation by the state court would "neither eliminate nor materially change the constitutional issues presented here." This assertion is simply implausible. As noted in the opinion of this Court, the conclusion below that the state statute reaches any expression protected by the First Amendment rests on a dubious interpretation of the word "lust" as used in the statute. Ante, at 500-501, n. 10. Both the text and the background of the Washington statute indicate that the state legislature sought to conform the moral nuisance law to the constitutional standards outlined by this Court in Moreover, the state courts have demonstrated their willingness to construe state obscenity laws in accord with Miller. See 82 Wash. 2d 4, cert. denied, Apart from its unwarranted belief that the statute is not fairly subject to a limiting construction, the Court of Appeals asserted that Pullman abstention should "almost never" apply where a state statute is challenged on First Amendment grounds "because the constitutional guarantee of free expression is, quite properly, always an area of particular *510 federal concern." 725 F.2d, at This Court has never endorsed such a proposition. See On the contrary, even in cases involving First Amendment challenges to a state statute, absention may be required " `in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication.' " quoting ; see also The decision of the Court of Appeals represents a premature and avoidable interference with the enforcement of state law in an area of special concern to the States. Speculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when, as is the case here, the state courts stand willing to address questions of state law on certification from a federal court.60.900 (1983); Wash. Rule App. Proc. 16.16. Cf. In my view, the state courts should have been afforded an opportunity to construe the Washington moral nuisance law in the first instance. |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | The question in this case is whether a minority with under 50% of the voting population of a proposed voting district can ever qualify under 2 of the Voting Rights Act of 1965(VRA) as residents of a putative district whose minority voters would have an opportunity "to elect representatives of their choice." 42 U.S.C. 1973(b) (2000 ed.). If the answer is no, minority voters in such a district will have no right to claim relief under 2 from a statewide districting scheme that dilutes minority voting rights. I would hold that the answer in law as well as in fact is sometimes yes: a district may be a minority-opportunity district so long as a cohesive minority population is large enough to elect its chosen candidate when combined with a reliable number of crossover voters from an otherwise polarized majority. In the plurality's view, only a district with a minority population making up 50% or more of the citizen voting age population (CVAP) can provide a remedy to minority voters lacking an opportunity "to elect representatives of their choice." This is incorrect as a factual matter if the statutory phrase is given its natural meaning; minority voters in districts with minority populations under 50% routinely "elect representatives of their choice." The effects of the plurality's unwillingness to face this fact are disturbing by any measure and flatly at odds with the obvious purpose of the Act. If districts with minority populations under 50% can never count as minority-opportunity districts to remedy a violation of the States' obligation to provide equal electoral opportunity under 2, States will be required under the plurality's rule to pack black voters into additional majority-minority districts, contracting the number of districts where racial minorities are having success in transcending racial divisions in securing their preferred representation. The object of the Voting Rights Act will now be promoting racial blocs, and the role of race in districting decisions as a proxy for political identification will be heightened by any measure. I Recalling the basic premises of vote-dilution claims under 2 will show just *1251 how far astray the plurality has gone. Section 2 of the VRA prohibits districting practices that "resul[t] in a denial or abridgement of the right of any citizen of the United States to vote on account of race." 42 U.S.C. 1973(a). A denial or abridgment is established if, "based on the totality of circumstances," it is shown that members of a racial minority "have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | in the political process and to elect representatives of their choice." 1973(b). Since 2 was amended in 1982, we have read it to prohibit practices that result in "vote dilution," see understood as distributing politically cohesive minority voters through voting districts in ways that reduce their potential strength. See There are two classic patterns. Where voting is racially polarized, a districting plan can systemically discount the minority vote either "by the dispersal of blacks into districts in which they constitute an ineffective minority of voters" or from "the concentration of blacks into districts where they constitute an excessive majority," so as to eliminate their influence in neighboring districts. Treating dilution as a remediable harm recognizes that 2 protects not merely the right of minority voters to put ballots in a box, but to claim a fair number of districts in which their votes can be effective. See Three points follow. First, to speak of a fair chance to get the representation desired, there must be an identifiable baseline for measuring a group's voting strength. (O'Connor, J., concurring in judgment) ("In order to evaluate a claim that a particular multimember district or single-member district has diluted the minority group's voting strength to a degree that violates 2, it is necessary to construct a measure of `undiluted' minority voting strength"). Several baselines can be imagined; one could, for example, compare a minority's voting strength under a particular districting plan with the maximum strength possible under any alternative.[1] Not surprisingly, we have conclusively rejected this approach; the VRA was passed to guarantee minority voters a fair game, not a killing. See We have held that the better baseline for measuring opportunity to elect under 2, although not dispositive, is the minority's rough proportion of the relevant population. Thus, in assessing 2 claims under a totality of the circumstances, including the facts of history and geography, the starting point is a comparison of the number of districts where minority voters can elect their chosen candidate with the group's population percentage. Ibid; see also *1252 League of United Latin American ("We proceed now to the totality of the circumstances, and first to the proportionality inquiry, comparing the percentage of total districts that are [minority] opportunity districts with the [minority] share of the citizen voting-age population").[2] Second, the significance of proportionality means that a 2 claim must be assessed by looking at the overall effect of a multidistrict plan. A State with one congressional seat cannot dilute a minority's congressional vote, and only the systemic submergence of minority votes where a number of single-member districts could |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | of minority votes where a number of single-member districts could be drawn can be treated as harm under 2. So a 2 complaint must look to an entire districting plan (normally, statewide), alleging that the challenged plan creates an insufficient number of minority-opportunity districts in the territory as a whole. See at -437, Third, while a 2 violation ultimately results from the dilutive effect of a districting plan as a whole, a 2 plaintiff must also be able to place himself in a reasonably compact district that could have been drawn to improve upon the plan actually selected. See, e.g., De That is, a plaintiff must show both an overall deficiency and a personal injury open to redress. Our first essay at understanding these features of statutory vote dilution was which asked whether a multimember district plan for choosing representatives by at-large voting deprived minority voters of an equal opportunity to elect their preferred candidates. In answering, we set three now-familiar conditions that a 2 claim must meet at the threshold before a court will analyze it under the totality of circumstances: "First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district Second, the minority group must be able to show that it is politically cohesive Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate." -51, As we have emphasized over and over, the conditions do not state the ultimate standard under 2, nor could they, since the totality of the circumstances standard has been set explicitly by Congress. See ; De Instead, each condition serves as a gatekeeper, ensuring that a plaintiff who proceeds to plenary review has a real chance to show a redressable violation of the ultimate 2 standard. The third condition, majority racial bloc voting, is necessary to establish the premise of vote-dilution claims: that the minority as a whole is placed at a disadvantage owing to race, not the happenstance of independent politics. The second, minority cohesion, is there to show that minority voters will vote together to elect a distinct representative of choice. And the *1253 first, a large and geographically compact minority population, is the condition for demonstrating that a dilutive plan injures the 2 plaintiffs by failing to draw an available remedial district that would give them a chance to elect their chosen candidate. ; II Though this case arose under the Constitution of North Carolina, the dispositive issue |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | arose under the Constitution of North Carolina, the dispositive issue is one of federal statutory law: whether a district with a minority population under 50%, but large enough to elect its chosen candidate with the help of majority voters disposed to support the minority favorite, can ever count as a district where minority voters have the opportunity "to elect representatives of their choice" for purposes of 2. I think it clear from the nature of a vote-dilution claim and the text of 2 that the answer must be yes. There is nothing in the statutory text to suggest that Congress meant to protect minority opportunity to elect solely by the creation of majority-minority districts. See On the contrary, 2 "focuses exclusively on the consequences of apportionment," ib as Congress made clear when it explicitly prescribed the ultimate functional approach: a totality of the circumstances test. See 42 U.S.C. 1973(b) And a functional analysis leaves no doubt that crossover districts vindicate the interest expressly protected by 2: the opportunity to elect a desired representative. It has been apparent from the moment the Court first took up 2 that no reason exists in the statute to treat a crossover district as a less legitimate remedy for dilution than a majority-minority one (let alone to rule it out). See (O'Connor, J., concurring in judgment) ("[I]f a minority group that is not large enough to constitute a voting majority in a single-member district can show that white support would probably enable the election of the candidates its members prefer, that minority group would appear to have demonstrated that, at least under this measure of its voting strength, it would be able to elect some candidates of its choice"); see also Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C.L.Rev. 1517, 3 (2002) (hereinafter Pildes) ("What should be so magical, then, about whether there are enough black voters to become a formal majority so that a conventional `safe' district can be created? If a safe and a coalition district have the same probability of electing a black candidate, are they not functionally identical, by definition, with respect to electing such candidates?"). As these earlier comments as much as say, whether a district with a minority population under 50% of CVAP may redress a violation of 2 is a question of fact with an obvious answer: of course minority voters constituting less than 50% of the voting population can have an opportunity to elect the candidates of their choice, as amply shown by empirical studies confirming |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | of their choice, as amply shown by empirical studies confirming that such minority groups regularly elect their preferred candidates with the help of modest crossover by members of the majority. See, e.g., The North Carolina Supreme Court for example, determined that voting districts with a black voting age population of as little as 38.37% have an opportunity to elect black candidates, Pender a factual finding that has gone unchallenged and is well supported by electoral results in North Carolina. Of the nine House districts in which blacks make up more than 50% of the voting age population (VAP), all but two elected a black representative in the 2004 election. See App. 109. Of the 12 additional House districts in which blacks are over 39% of the VAP, all but one elected a black representative in the 2004 election. It would surely surprise legislators in North Carolina to suggest that black voters in these 12 districts cannot possibly have an opportunity to "elect [the] representatives of their choice." It is of course true that the threshold population sufficient to provide minority voters with an opportunity to elect their candidates of choice is elastic, and the proportions will likely shift in the future, as they have in the past. See Pildes 1527-1532 (explaining that blacks in the 1s required well over 50% of the population in a district to elect the candidates of their choice, but that this number has gradually fallen to well below 50%); That is, racial polarization has declined, and if it continues downward the first condition will get easier to satisfy. But this is no reason to create an arbitrary threshold; the functional approach will continue to allow dismissal of claims for districts with minority populations too small to demonstrate an ability to elect, and with "crossovers" too numerous to allow an inference of vote dilution in the first place. No one, for example, would argue based on the record of experience in this case that a district with a 25% black population would meet the first condition. And the third requirement, majority-bloc voting, may well provide an analytical limit to claims based on crossover districts. See n. 8, (SOUTER, J., concurring in part and dissenting in part) (noting the interrelationship of the first and third factors); see also post, at 1260-1262 (BREYER, J., dissenting) (looking to the third condition to suggest a mathematical limit to the minority population necessary for a cognizable crossover district). But whatever this limit may be, we have no need to set it here, since the respondent state officials have stipulated to majority-bloc |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | here, since the respondent state officials have stipulated to majority-bloc voting, App. to Pet. for Cert. 130a. In sum, 2 addresses voting realities, and for practical purposes a 39%-minority district in which we know minorities have the potential to elect their preferred candidate is every bit as good as a 50%-minority district. In fact, a crossover district is better. Recognizing crossover districts has the value of giving States greater flexibility to draw districting plans with a fair number of minority-opportunity districts, and this in turn allows for a beneficent reduction in the number of majority-minority districts with their "quintessentially race-conscious calculus," De See also Pildes 1547-1548 )). A crossover is thus superior to a majority-minority district precisely because it requires polarized factions to break out of the mold and form the coalitions that discourage racial divisions. III A The plurality's contrary conclusion that 2 does not recognize a crossover claim is based on a fundamental misunderstanding of vote-dilution claims, a mistake epitomized in the following assessment of the crossover district in question: "[B]ecause they form only 39 percent of the voting-age population in District 18, African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength [in District 18]." Ante, at 1242-1243. See also ante, at 1246 ("[In crossover districts,] minority voters have the same opportunity to elect their candidate as any other political group with the same relative voting strength"). The claim that another political group in a particular district might have the same relative voting strength as the minority if it had the same share of the population takes the form of a tautology: the plurality simply looks to one district and says that a 39% group of blacks is no worse off than a 39% group of whites would be. This statement might be true, or it might not be, and standing alone it demonstrates nothing. Even if the two 39% groups were assumed to be comparable in fact because they will attract sufficient crossover (and so should be credited with satisfying the first condition), neither of them could prove a 2 violation without looking beyond the 39% district and showing a disproportionately small potential for success in the State's overall configuration of districts. As this Court has before, the ultimate question in a 2 case (that is, whether the minority group in question is being denied an equal opportunity to participate and elect) can be answered only by examining the broader pattern of districts to see whether the minority is being |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | pattern of districts to see whether the minority is being denied a roughly proportionate opportunity. See 548 U.S., at -437, Hence, saying one group's 39% equals another's, even if true in particular districts where facts are known, does not mean that either, both, or neither group could show a 2 violation. The plurality simply fails to grasp that an alleged 2 violation can only be proved or disproved by looking statewide. B The plurality's more specific justifications for its counterfactual position are no more supportable than its 39% tautology. 1 The plurality seems to suggest that our prior cases somehow require its conclusion that a minority population under 50% will never support a 2 remedy, emphasizing that spoke of a majority and referred to the requirement that minority voters have "`the potential to elect'" their chosen representatives. Ante, at 1243 (quoting, n. 17, ). It is hard to know what to make of this point since the plurality also concedes that we have explicitly and repeatedly reserved decision on today's question. See (plurality opinion); De ; ; n. 5, ; In fact, in our more recent cases *1256 applying 2, Court majorities have formulated the first prong in a way more consistent with a functional approach. See ("[I]n the context of a challenge to the drawing of district lines, `the first condition requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice'" (quoting De )). These Court majorities get short shrift from today's plurality. In any event, even if we ignored 's reservation of today's question and looked to 's "potential to elect" as if it were statutory text, I fail to see how that phrase dictates that a minority's ability to compete must be singlehanded in order to count under 2. As already, a crossover district serves the same interest in obtaining representation as a majority-minority district; the potential of 45% with a 6% crossover promises the same result as 51% with no crossover, and there is nothing in the logic of 2 to allow a distinction between the two types of district. In fact, the plurality's distinction is artificial on its own terms. In the past, when black voter registration and black voter turnout were relatively low, even black voters with 55% of a district's CVAP would have had to rely on crossover voters to elect their candidate of choice. See Pildes 1527-1528. But no one on this Court (and, so far as I am aware, any other court addressing it) ever |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | as I am aware, any other court addressing it) ever suggested that reliance on crossover voting in such a district rendered minority success any less significant under 2, or meant that the district failed to satisfy the first factor. Nor would it be any answer to say that black voters in such a district, assuming unrealistic voter turnout, theoretically had the "potential" to elect their candidate without crossover support; that would be about as relevant as arguing in the abstract that a black CVAP of 45% is potentially successful, on the assumption that black voters could turn out en masse to elect the candidate of their choice without reliance on crossovers if enough majority voters stay home. 2 The plurality is also concerned that recognizing the "potential" of anything under 50% would entail an exponential expansion of special minority districting; the plurality goes so far as to suggest that recognizing crossover districts as possible minority-opportunity districts would inherently "entitl[e] minority groups to the maximum possible voting strength." Ante, at 1244. But this conclusion again reflects a confusion of the gatekeeping function of the conditions with the ultimate test for relief under 2. See ante, at 1242-1243 ("African-Americans standing alone have no better or worse opportunity to elect a candidate than does any other group of voters with the same relative voting strength"). As already the mere fact that all threshold conditions could be met and a district could be drawn with a minority population sufficiently large to elect the candidate of its choice does not require drawing such a district. This case simply is about the first condition, not about the number of minority-opportunity districts needed under 2, and accepting Bartlett's position would in no way imply an obligation to maximize districts with minority voter potential. Under any interpretation of the first factor, the State must draw districts in a way that provides minority voters with a fair number of districts in *1257 which they have an opportunity to elect candidates of their choice; the only question here is which districts will count toward that total. 3 The plurality's fear of maximization finds a parallel in the concern that treating crossover districts as minority-opportunity districts would "create serious tension" with the third prerequisite of majority-bloc voting. Ante, at 1244. The plurality finds "[i]t difficult to see how the majority-bloc-voting requirement could be met in a district where, by definition, white voters join in sufficient numbers with minority voters to elect the minority's preferred candidate." It is not difficult to see. If a minority population with 49% of the CVAP can |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | If a minority population with 49% of the CVAP can elect the candidate of its choice with crossover by 2% of white voters, the minority "by definition" relies on white support to elect its preferred candidate. But this fact alone would raise no doubt, as a matter of definition or otherwise, that the majority-bloc-voting requirement could be met, since as much as 98% of the majority may have voted against the minority's candidate of choice. As above, the third condition may well impose an analytical floor to the minority population and a ceiling on the degree of crossover allowed in a crossover district; that is, the concept of majority-bloc voting requires that majority voters tend to stick together in a relatively high degree. The precise standard for determining majority-bloc voting is not at issue in this case, however; to refute the plurality's 50% rule, one need only recognize that racial cohesion of 98% would be bloc voting by any standard.[3] 4 The plurality argues that qualifying crossover districts as minority-opportunity districts would be less administrable than demanding 50%, forcing courts to engage with the various factual and predictive questions that would come up in determining what percentage of majority voters would provide the voting minority with a chance at electoral success. Ante, at 1244-1245. But claims based on a State's failure to draw majority-minority districts raise the same issues of judicial judgment; even when the 50% threshold is satisfied, a court will still have to engage in factually messy enquiries about the "potential" such a district may afford, the degree of minority cohesion and majority-bloc voting, and the existence of vote-dilution under a totality of the circumstances. See 1254. The plurality's rule, therefore, conserves an uncertain amount of judicial resources, and only at the expense of ignoring a class of 2 claims that this Court has no authority to strike from the statute's coverage. 5 The plurality again misunderstands the nature of 2 in suggesting that its rule *1258 does not conflict with what the Court said in : that crossover districts count as minority-opportunity districts for the purpose of assessing whether minorities have the opportunity "to elect their preferred candidates of choice" under 5 of the VRA, 42 U.S.C.A. 1973c(b) (Supp.2008). While the plurality is, of course, correct that there are differences between the enquiries under 2 and 5, ante, at 1249, those differences do not save today's decision from inconsistency with the prior pronouncement. A districting plan violates 5 if it diminishes the ability of minority voters to "elect their preferred candidates of choice," 1973c(b), as measured against |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | "elect their preferred candidates of choice," 1973c(b), as measured against the minority's previous electoral opportunity, 7, A districting plan violates 2 if it diminishes the ability of minority voters to "elect representatives of their choice," 42 U.S.C. 1973(b) (2000 ed.), as measured under a totality of the circumstances against a baseline of rough proportionality. It makes no sense to say that a crossover district counts as a minority-opportunity district when comparing the past and the present under 5, but not when comparing the present and the possible under 2. 6 Finally, the plurality tries to support its insistence on a 50% threshold by invoking the policy of constitutional avoidance, which calls for construing a statute so as to avoid a possibly unconstitutional result. The plurality suggests that allowing a lower threshold would "require crossover districts throughout the Nation," ante, at 1247, thereby implicating the principle of that districting with an excessive reliance on race is unconstitutional ("excessive" now being equated by the plurality with the frequency of creating opportunity districts). But the plurality has it precisely backwards. A State will inevitably draw some crossover districts as the natural byproduct of districting based on traditional factors. If these crossover districts count as minority-opportunity districts, the State will be much closer to meeting its 2 obligation without any reference to race, and fewer minority-opportunity districts will, therefore, need to be created purposefully. But if, as a matter of law, only majority-minority districts provide a minority seeking equality with the opportunity to elect its preferred candidates, the State will have much further to go to create a sufficient number of minority-opportunity districts, will be required to bridge this gap by creating exclusively majority-minority districts, and will inevitably produce a districting plan that reflects a greater focus on race. The plurality, however, seems to believe that any reference to race in districting poses a constitutional concern, even a State's decision to reduce racial blocs in favor of crossover districts. A judicial position with these consequences is not constitutional avoidance. IV More serious than the plurality opinion's inconsistency with prior cases construing 2 is the perversity of the results it portends. Consider the effect of the plurality's rule on North Carolina's districting scheme. Black voters make up approximately 20% of North Carolina's VAP[4] and are distributed throughout 120 State *1259 House districts, App. to Pet. for Cert. 58a. As noted before, black voters constitute more than 50% of the VAP in 9 of these districts and over 39% of the VAP in an additional 12. Under a functional approach to 2, black voters in North |
Justice Souter | 2,009 | 20 | dissenting | Bartlett v. Strickland | https://www.courtlistener.com/opinion/145901/bartlett-v-strickland/ | Under a functional approach to 2, black voters in North Carolina have an opportunity to elect (and regularly do elect) the representative of their choice in as many as 21 House districts, or 17.5% of North Carolina's total districts. See App. 109-110. North Carolina's districting plan is therefore close to providing black voters with proportionate electoral opportunity. According to the plurality, however, the remedy of a crossover district cannot provide opportunity to minority voters who lack it, and the requisite opportunity must therefore be lacking for minority voters already living in districts where they must rely on crossover. By the plurality's reckoning, then, black voters have an opportunity to elect representatives of their choice in, at most, nine North Carolina House districts. See In the plurality's view, North Carolina must have a long way to go before it satisfies the 2 requirement of equal electoral opportunity.[5] A State like North Carolina faced with the plurality's opinion, whether it wants to comply with 2 or simply to avoid litigation, will, therefore, have no reason to create crossover districts. Section 2 recognizes no need for such districts, from which it follows that they can neither be required nor be created to help the State meet its obligation of equal electoral opportunity under 2. And if a legislature were induced to draw a crossover district by the plurality's encouragement to create them voluntarily, ante, at 1249-1250, it would open itself to attack by the plurality based on the pointed suggestion that a policy favoring crossover districts runs counter to Shaw. The plurality has thus boiled 2 down to one option: the best way to avoid suit under 2, and the only way to comply with 2, is by drawing district lines in a way that packs minority voters into majority-minority districts, probably eradicating crossover districts in the process. Perhaps the plurality recognizes this aberrant implication, for it eventually attempts to disavow it. It asserts that " 2 allows States to choose their own method of complying with the Voting Rights Act, and we have said that may include drawing crossover districts. [But] 2 does not mandate creating or preserving crossover districts." Ante, at 1248. See also, ante, at 1249 (crossover districts "can be evidence. of equal political opportunity."). But this is judicial fiat, not legal reasoning; the plurality does not even attempt to explain how a crossover district can be a minority-opportunity district when assessing the compliance of a districting plan with 2, but cannot be one when sought as a remedy to a 2 violation. The plurality cannot have it both ways. |
Justice Breyer | 2,011 | 2 | dissenting | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206187/milner-v-department-of-navy/ | Justice Stevens has explained that, once “a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies,” it can acquire a clear meaning that this Court should hesi tate to change. See Shearson/American Express Inc. v. McMahon, (opinion concurring in part and dissenting in part) (emphasis added). See also (Stevens, J., dissenting); B. Cardozo, The Nature of the Judicial Process 149 (1921). I would apply that principle to this case and accept the 30-year-old decision by the D. C. Cir cuit in as properly stating the law. For one thing, the decision, joined by 9 of the 10 sitting Circuit Judges, has been consistently followed, or favorably cited, by every Court of Appeals to have consid ered the matter during the past 30 years. See (writ ten by Judge Edwards, and joined by Chief Judge Robin son and Judges Wright, MacKinnon, Robb, Wald, Mikva, and then-Judge Ginsburg, with Judge Tamm concurring in the result and Judge Wilkey dissenting); ; Kaganove v. EPA, 856 F.2d 884, 889 cert. denied, ; 2 MILNER v. DEPARTMENT OF NAVY BREYER, J., dissenting Three Circuits adopted a different approach in the 1970’s before was decided, see ante, at 3–4, n. 2, but I read subsequent decisions in two of those Circuits as not adher ing to their early positions. See Abraham & Rose, PLC v. United States, (finding ’s textual analysis “sound and persuasive,” and noting that FBI symbols “used internally to identify confidential sources” may be withheld); Sladek v. Bensinger, (expressly re serving judgment on the issue). As for the re maining Circuit, its district courts understand now to apply. See, e.g., Gavin v. SEC, No. 04–4522, WL 2454156, *5–*6 ; see also (SD Tex. 2003), aff’d, (per curiam); WL 14436, *2– *3 I recognize that there is reasonable ground for disagreement over the precise status of certain pre- precedents, but the interpretation of Exemption 2 has guided nearly every Freedom of Information Act (FOIA) case decided over the last 30 years. See generally Dept. of Justice, Guide to Freedom of Information Act, pp. 184–206 (2009) (FOIA Guide) (identifying over 100 district court decisions apply ing the approach, and one appearing to reject it). Congress, moreover, well aware of left Exemp tion 2, 5 U.S. C. untouched when it amended the FOIA five years later. See S. Rep. No. 98–221, p. 25 (1983) (discussing ); Freedom of Information Re form Act of –48 (amending Exemption 7, 5 U.S. C. This Court has found that circumstances of this kind offer significant support for retaining |
Justice Breyer | 2,011 | 2 | dissenting | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206187/milner-v-department-of-navy/ | that circumstances of this kind offer significant support for retaining an interpretation of a statute that has been settled by the lower courts. See General Dynamics Land Systems, Inc. v. Cline, 540 U. S. Cite as: 562 U. S. (2011) 3 BREYER, J., dissenting 581, 593–594 ; Evans v. United States, 504 U.S. 255, –269 (1992); Newman-Green, ; Monessen Southwest ern R. ; Lin 781–783 (1985); Herman & MacLean v. Huddleston, 459 U.S. 375, 385–386 (1983); ; Blue Chip Stamps v. Manor Drug Stores, ; Gulf Oil 200– 201 (1974); 412–413 (1962). See generally W. Eskridge, P. Frickey, & E. Garrett, Cases and Materials on Legislation 8 (“[T]he acquiescence rule can also support implicit con gressional ratification of a uniform line of federal appel late interpretations”). For another thing, even if the majority’s analysis would have persuaded me if written on a blank slate, ’s analysis was careful and its holding reasonable. The Circuit Court examined the statute’s language, the legisla tive history, and the precedent. It recognized that the exemption’s words (“related solely to the internal person nel rules and practices of an agency”) could easily be read, as the Court reads them today, to refer only to human resources rules and practices. See – 1057. But it also thought that those words could be read more broadly as referring to internal rules or practices that set forth criteria or guidelines for agency personnel to follow in respect to purely internal matters (as long as the information at issue was “not of legitimate public inter est”). The D. C. Circuit agreed with today’s Court that the Senate Report described the exemption as referring to “ ‘internal personnel’ ” matters, giving as examples “ ‘per sonnel’s use of parking facilities, sick leave, and the like.’ ” at 1058–1059 (quoting S. Rep. No. 813, 89th 4 MILNER v. DEPARTMENT OF NAVY BREYER, J., dissenting Cong., 1st Sess., p. 8 (1965)). But it also noted that the House Report described the exemption as protecting from disclosure “ ‘[o]perating rules, guidelines, and manuals of procedure for Government investigators or examiners.’ ” (quoting H. R. Rep. No. 1497, 89th Cong., 2d Sess., p. 10 (1966)). “[U]pon reflection,” it thought the views of the two Houses “reconcilable” if one understood both sets of examples as referring to internal staff information (both minor personnel matters and staff instruction matters) that the public had no legitimate interest in learning And it accepted this view in light of its hesitation to “apply indi vidual provisions of the statute woodenly, oblivious to Congress’ intention that FOIA not frustrate law |
Justice Breyer | 2,011 | 2 | dissenting | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206187/milner-v-department-of-navy/ | woodenly, oblivious to Congress’ intention that FOIA not frustrate law enforce ment efforts.” At the same time it found no other exemption that would protect internal documents in which there is no legitimate public interest in disclosure— a category that includes, say, building plans, safe combi nations, computer passwords, evacuation plans, and the like. After examining in depth the legislative history and relevant precedent, the court adopted an approach based on a prior opinion by Circuit Judge Leventhal, as well as language used by this Court in Department of Air Force v. Rose, The D. C. Circuit held that a document fits within the literal language of Exemp tion 2 and is exempt from disclosure if (1) it “meets the test of ‘predominant internality,’ ” i.e., the document is “not of legitimate public interest,” and (2) “disclosure significantly risks circumvention of agency regulations or statutes.” ; see also Rose, at (suggesting that Exemption 2 might apply where “disclosure may risk circumvention of agency regu lation”). This test, based upon Congress’ broader FOIA objectives and a “common sense” view of what information Congress did and did not want to make available, Cite as: 562 U. S. (2011) 5 BREYER, J., dissenting takes the “practical approach” that this Court has “consistently taken” when interpreting the FOIA, John Doe 157 I would not underestimate the importance of this “prac tical approach.” It reflects this Court’s longstanding rec ognition that it cannot interpret the FOIA (and the Ad ministrative Procedure Act (APA) of which it is a part) with the linguistic literalism fit for interpretations of the tax code. See generally 1 R. Pierce, Administrative Law Treatise p. 413 (4th ed. 2002) (“Judicial interpreta tion of the malleable language of the APA has produced changes in the rulemaking procedure that could be charac terized as revolutionary if they had been affected in a day or a year rather than gradually over a period of decades”); cf. Sunstein & Vermeule, Interpretation and Institutions, 917–918, and n. 111 (2003) (observ ing that Congress “appears to rely on courts for long peri ods of time” to give meaning to the APA, which justifies interpreting it less formalistically than statutes like “the Internal Revenue Code”). That in large part is because the FOIA (like the APA but unlike the tax code) must govern the affairs of a vast Executive Branch with numer ous different agencies, bureaus, and departments, per forming numerous tasks of many different kinds. Too narrow an interpretation, while working well in the case of one agency, may seriously interfere with congressional objectives when applied to |
Justice Breyer | 2,011 | 2 | dissenting | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206187/milner-v-department-of-navy/ | agency, may seriously interfere with congressional objectives when applied to another. The D. C. Circuit’s answer to this legal problem here was to interpret Exemp tion 2 in light of Congress’ basic effort to achieve a “workable balance between the interests of the public in greater access to information and the needs of the Gov ernment to protect certain kinds of information from disclosure.” John Doe See also S. Rep. No. 1219, 88th Cong., 2d Sess., 8, 11 (1964) (em phasizing this “workable” balance); S. Rep. No. 813, at 3, 5 6 MILNER v. DEPARTMENT OF NAVY BREYER, J., dissenting (same); H. R. Rep. No. 1497, at 2, 6 (same). Further, 30 years of experience with ’s holding suggests that it has not seriously interfered with the FOIA’s informational objectives, while at the same time it has permitted agencies to withhold much information which, in my view, Congress would not have wanted to force into the public realm. To focus only on the case law, courts have held that that information protected by Ex emption 2 includes blueprints for Department of Agricul ture buildings that store biological agents, ; documents that would help hackers access National Aero nautics and Space Administration computers, Knight v. NASA, No. 2:04–cv–2054–MCE–GGH, *6 (ED Cal., Dec. 21, 2006); agency credit card numbers, Judicial Watch, Inc. v. Department of Commerce, 83 F. Supp. 2d 105, 110 (DC 1999); Commodity Futures Trading Commission guidelines for settling cases, Shu maker, Loop & Kendrick, LLP v. Commodity Futures Trading Comm’n, No. 3:97 CV 7139, U. S. Dist. LEXIS 23993, *10–*15 ; “trigger figures” that alert the Department of Education to possible mismanagement of federal funds, ; security plans for the Supreme Court Building and Supreme Court Justices, ; vulnerability assessments of Commerce Department com puter security plans, ; Bureau of Prisons guidelines for controlling riots and for storing hazardous chemicals, Miller v. DOJ, No. 87–0533, 1989 WL 10598 ; guidelines for assessing the sensitivity of military programs, Institute for Policy Stud 4–5 ; and guidelines for processing Medicare reimburse ment claims, 803 F.2d, at –1459. Cite as: 562 U. S. (2011) 7 BREYER, J., dissenting In other Exemption 2 cases, where withholding may seem less reasonable, the courts have ordered disclosure. Cf. ante, at 16, n. 9 and Maricopa Audubon ). See generally FOIA Guide 201, and n. 106 (citing nine deci sions applying the approach but nonetheless requiring disclosure). The majority acknowledges that “our decision today upsets three decades of agency practice relying on and therefore may force considerable adjustments.” Ante, at 18. But how are these adjustments |
Justice Breyer | 2,011 | 2 | dissenting | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206187/milner-v-department-of-navy/ | considerable adjustments.” Ante, at 18. But how are these adjustments to be made? Should the Government rely upon other exemptions to provide the protection it believes necessary? As JUSTICE ALITO notes, Exemption 7 applies where the documents consist of “re cords or information compiled for law enforcement pur poses” and release would, e.g., “disclose techniques and procedures for law enforcement investigations,” or “could reasonably be expected to endanger the life or physical safety of any individual.” 5 U.S. C. But what about information that is not compiled for law enforce ment purposes, such as building plans, computer pass words, credit card numbers, or safe deposit combinations? The Government, which has much experience litigating FOIA cases, warns us that Exemption 7 “targets only a subset of the important agency functions that may be circumvented.” Brief for Respondent 52–53. Today’s decision only confirms this point, as the Court’s insistence on narrow construction might persuade judges to avoid reading Exemption 7 broadly enough to provide type protection. The majority suggests that the Government can classify documents that should remain private. Ante, at 18. See 5 U.S. C. (permitting withholding of material “properly classified” as authorized to be “kept secret in the interest of national defense or foreign policy”). But classi 8 MILNER v. DEPARTMENT OF NAVY BREYER, J., dissenting fication is at best a partial solution. It takes time. It is subject to its own rules. As the Government points out, it would hinder the sharing of information about Govern ment buildings with “first responders,” such as local fire and police departments. Brief for Respondent 53–54. And both Congress and the President believe the Nation cur rently faces a problem of too much, not too little, classified material. See Reducing Over-Classification Act, 124 Stat. 2648; Exec. Order No. 13526, 2.1(d), 5.4(d)(10), 3 CFR 298, 299–300, 304, 321 (2009 Comp.). Indeed, Con gress recently found: “The 9/11 Commission and others have observed that the over-classification of information interferes with accurate, actionable, and timely information sharing, increases the cost of information security, and need lessly limits stakeholder and public access to informa tion. “Over-classification of information causes consider able confusion regarding what information may be shared with whom, and negatively affects the dis semination of information within the Federal Gov ernment and with State, local, and tribal entities, and with the private sector.” Reducing Over-Classification Act, (3), These legislative findings suggest that it is “over classification,” not that poses the more serious threat to the FOIA’s public information objectives. That leaves congressional action. As the Court points out, Congress remains free to correct whatever problems |
Justice Breyer | 2,011 | 2 | dissenting | Milner v. Department of Navy | https://www.courtlistener.com/opinion/206187/milner-v-department-of-navy/ | Court points out, Congress remains free to correct whatever problems it finds in today’s narrowing of Exemption 2. But legislative action takes time; Congress has much to do; and other matters, when compared with a FOIA revision, may war rant higher legislative priority. In my view, it is for the courts, through appropriate interpretation, to turn Con gress’ public information objectives into workable agency Cite as: 562 U. S. (2011) 9 BREYER, J., dissenting practice, and to adhere to such interpretations once they are settled. That is why: Where the courts have already interpreted Exemption 2, where that interpretation has been consis tently relied upon and followed for 30 years, where Con gress has taken note of that interpretation in amending other parts of the statute, where that interpretation is reasonable, where it has proved practically helpful and achieved commonsense results, where it is consistent with the FOIA’s overall statutory goals, where a new and dif ferent interpretation raises serious problems of its own, and where that new interpretation would require Con gress to act just to preserve a decades-long status quo, I would let sleeping legal dogs lie. For these reasons, with respect, I dissent |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | The Court today holds that the Klamath Tribe has no special right to hunt and fish on certain lands although it has done so undisturbed from time immemorial. Instead, the Tribe is determined to be subject to state regulation to the same extent as any other person in the State of Oregon. This Court has in the past recognized that Indian hunting and fishing rights even if nonexclusive, and even if existing apart from reservation lands are valuable property rights, not fully subject to state regulation and not to be deemed abrogated without explicit indication.[1] Although all agree that hunting and fishing have historically been vital to the continued prosperity of the Klamath, the Court today assumes that the Klamath Tribe silently gave up its rights to hunt and fish on these lands in a 1901 Agreement, approved by Congress in 1906, that had no purpose other than to benefit the Tribe for a previous injustice. It reaches this conclusion even though there is no historical evidence that any party to the Agreement envisioned it as having the effect of altering tribal hunting and fishing practices, and even though hunting and fishing practices did not in fact change as a result of the Agreement. Although I agree that the boilerplate language of the Agreement can be read as the Court does, I also believe that such a reading is not necessary, ignores the Agreement's historical context, and is not faithful to the well-established principles that Indian treaties are to be interpreted as they were likely understood by the tribe and that doubts concerning the meaning of a treaty should be resolved in favor of the tribe.[2] Accordingly, I dissent. *776 I I will only briefly summarize the relevant history of the Klamath Reservation. As the Court explains, in 186 the Klamath Tribe entered into a treaty with the United whereby it agreed to settle on a reservation of 1.9 million acres in south central Oregon. Treaty of Oct. 1, 186, This land was a small part of the 22 million acres of land to which the Klamath had held aboriginal title. As the Court points out: "The 186 Treaty also provided that the [Klamath Tribe] would have `the exclusive right of taking fish in the streams and lakes, included in said reservation, and of gathering edible roots, seeds, and berries within its limits.' " Ante, at 755. Although the borders of the reservation soon became the subject of some dispute, the purposes of the Treaty have always been clear. These purposes, and the importance of Indian hunting and |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | clear. These purposes, and the importance of Indian hunting and fishing rights to their accomplishment, were well stated in a report to Congress by a Commission appointed to study the later boundary dispute: "It was evidently a principal object of the treaty to draw the Indians in from the large extent of territory over which they were roaming, subject to constant collisions with the steadily encroaching whites, and to concentrate them on an area much more limited, but which would still be ample to provide them with the means of subsistence. "To attain this, the marked tendency of the treaty and the emphatic testimony of the Indians seek to make all the boundaries mountain ridges, a purpose of which the nature of the country renders easy of accomplishment on all sides except the north. "There is no provision in the treaty, however, for the support of the Indians by the Government, and as the *777 high altitude and the severity of the climate are unfavorable to the cultivation of cereals, their subsistence depended upon natural products, consisting principally of game, fish, wild roots, and seeds. These mountain barriers, therefore, must include a territory frequented by game, streams stocked with fish, and ground producing the roots and seeds which formed so large a portion of the subsistence of the Indians." S. Doc. No. 5th Cong., 2d Sess., 6-7 (1897) (Klamath Boundary Commission Report). The boundaries of the reservation that was eventually established pursuant to the Treaty, however, contained only about two-thirds of the land promised the Klamath Tribe, and among the areas left outside the reservation were tribal hunting, fishing, and gathering grounds of substantial importance. These areas had been specifically included in the Treaty's definition of the planned reservation at the Tribe's insistence; but, as the result of an erroneous 1871 survey, over 617,000 acres of land promised to the Tribe were excluded from the newly established reservation. As a result of the erroneous survey and in violation of the Treaty, non-Indians began to enter on the land for stock grazing and, to a lesser extent, for settlement. See, e. g., S. Exec. Doc. No. 129, 53d Cong., 2d Sess., -6, 8-9, 11, 17 (189) (various documents noting grazing uses and relatively light settlement); see also n. 5, infra. The Klamath vehemently and repeatedly protested these entrances, but nevertheless continued to hunt and fish on the excluded land. See S. Doc. No. The protests continued for decades, and eventually led to Congress' establishment of a Boundary Commission to determine the proper boundaries of the reservation and to determine the value |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | proper boundaries of the reservation and to determine the value of the erroneously excluded land. Act of June 10, 1896, ch. 398, 32. The Boundary Commission went to the reservation and interviewed large numbers of Klamath. Tribal elders all *778 insisted that they were sure that the disputed land was supposed to be in the reservation. They had explicitly demanded the land's inclusion in the 186 Treaty, they explained, because of the land's traditional importance in the Tribe's essential hunting, fishing, and gathering activities. The Commissioners inspected the land and found a tribal fishing site upon which a stone dam had been constructed and maintained by the Tribe to aid in gathering large numbers of fish. The Commission concluded that the Klamath's complaints were largely justified and deserving of redress.[3] The Commission determined, pursuant to the Tribe's desires, that redress would take the form of officially ceding the excluded land back to the United for compensation, leaving the border of the reservation where it had been erroneously set. As the Court notes, however, the Commission determined the value of the excluded land with no reference to its use for hunting, fishing, or gathering basing valuation on its use for timber and stock grazing. Yet the Commission knew the land's importance to the Tribe for hunting and fishing, since this was the basis of the Commission's finding that it had been erroneously excluded from the reservation. Similarly, during the course of the two years of negotiations toward an agreement, there was no reference to any cessation of hunting, fishing, or gathering activity on the land in question, nor, it is true, to the continuing of such activity. The *779 issue was simply never mentioned, and there is certainly no specific evidence that anyone, whether Klamath or Government official, envisioned that the Agreement would compel the Tribe to in any way alter the important hunting and fishing activities that it had been engaged in since the initial establishment of the reservation. During that time the Tribe had been forced to accept that others were entering and using the land, but the Tribe also had continued to fish and hunt as it always had done. The Court is correct that the Tribe seemed fully satisfied with the possibility that the excluded land would be ceded to the United for compensation, and there were no protests raised concerning loss of fishing, hunting, and gathering rights. Ante, at 759. But I cannot conclude from this silence that the Tribe understood and agreed to the extinguishing of hunting and fishing rights on the ceded land. |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | extinguishing of hunting and fishing rights on the ceded land. Ante, at 770. Given the historical context of the 1901 Agreement, its proper interpretation is that, first, it compensated the Tribe for the fact that its position since the reservation's establishment had been less than the Tribe had been promised, and, second, it preserved the Tribe's position as it had actually existed since the erroneous survey. The Tribe's actual position between the erroneous survey and the 1901 Agreement included no ability to exercise exclusive possession of the erroneously excluded lands, although they had been promised that right in the 186 Treaty; but the Tribe's position did include the ability to hunt and fish on those lands, and there is no reason to believe that a goal of the 1901 Agreement was to terminate such activities. II A As the Court notes, the case focuses on two provisions of the 1901 Agreement. Article I of the Agreement contained a broad cession by the Tribe of "all their claim, right, title, *780 and interest in and to" the excluded land. In contrast, Article IV of the Agreement broadly declared that "nothing in [the] agreement shall be construed to deprive the said Klamath of any benefits to which they are entitled under existing treaties, not inconsistent with the provisions of this agreement." Respondent and the courts below argued that the language of Article IV can reasonably be interpreted as a reservation by the Indians of a nonexclusive right to hunt and fish on those parts of the ceded land not in private hands.[] The Court rejects this construction of Article IV because of its unexplained insistence that the 1901 Agreement must be understood in terms of the structure of the 186 Treaty, which envisioned no nonexclusive or off-reservation hunting rights. Indeed, as the Court emphasizes, a provision of the 186 Treaty obligated the Tribe's members to remain on the reservation established by its terms. Thus, in the Court's view, because the reservation was diminished by the 1901 Agreement, and because the 186 Treaty envisioned that the Tribe would hunt and fish only on its reservation, the 1901 Agreement must also have diminished the area where hunting and fishing rights existed. To allow nonexclusive *781 hunting and fishing rights on the ceded lands would, in the Court's view, create a "glaring inconsistency" with the 186 Treaty, because to exercise such a right would have required the Tribe to leave the borders of its now-diminished reservation, in violation of the 186 Treaty obligation to remain on reservation land. Ante, at 770. B This overly formal |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | on reservation land. Ante, at 770. B This overly formal approach to treaty interpretation ignores the fundamental presumptions that Indian treaties are to be construed as the tribes would have understood them, Choctaw and that ambiguities should be resolved in favor of the tribe. I would have thought that an inquiry into the 1901 Agreement's meaning would focus, not primarily on the formal structure of the 186 Treaty leaving both documents abstracted from their actual purposes and historical contexts but instead on the problems that arose since 186 that gave rise to the need for the 1901 Agreement. Certainly, the latter approach is better suited to the goal of determining the purposes of the parties, and especially, to the goal of determining the understandings of the Tribe. When looking at the 1901 Agreement in terms of its own historical setting, the evidence clearly supports two conclusions first, that the Tribe had no expectation that it was losing its ability to continue those fishing and hunting practices that it had been pursuing from time immemorial on the ceded lands, and second, that the United had no particular interest in terminating such fishing and hunting activities. (1) The Tribe's perspective is not difficult to divine. At the time of the 1901 Agreement, as well as at the time of the 1906 *782 Act of Congress which ratified this Agreement, "[h]unting, fishing, gathering and trapping [were] crucial to the survival of the Klamath Indians." App. 19 The Tribe had received, under the 186 Treaty, the right to hunt and fish on the specific lands that were ceded in the 1901 Agreement, and had received that right because it had insisted on the particular importance to the Tribe of its ability to hunt and fish on those specific lands. Although these lands had not been included within the erroneous borders of the original reservation, the Tribe nevertheless entered them to hunt and fish. The 186 Treaty had also granted the Tribe the exclusive right to possess the lands in question, and particularly prohibited the use of these lands by non-Indians. But the Tribe had never been able to exercise this right to exclude others. The erroneous boundaries had opened the lands to others; thus, the Tribe's ability to hunt and fish had become nonexclusive and its ability to exercise exclusive possession had disappeared. This was what it had lost, and accordingly, tribal members' complaints had focused only on the presence of non-Indians on their lands. They never asserted an interference with their ability to hunt and fish. It is clear that |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | their ability to hunt and fish. It is clear that the Tribe envisioned the 1901 Agreement only as providing compensation for the loss that the Tribe had suffered. And there is certainly nothing in the record to indicate that the Agreement in any way was working a further loss on the Tribe. In this context, Article IV makes clear that the Tribe was not to lose any benefits that it had actually possessed as it entered the 1901 Agreement. (2) The United ' purposes were similarly clear, as the 1901 Agreement was entirely a result of Indian demands for the redress of an unfortunate mistake. The United fully understood that the land in question was ill-suited for agriculture and settlement, and the record reflects no other *783 collateral purposes of Congress. Indeed, there is no evidence of any pressures on Congress from non-Indians urging the cession at issue.[5] There is simply no reason to believe that the United acting as trustee and seeking to compensate the Tribe for an unjust and accidental diminishment of their reservation intended silently to effectuate a further diminution of tribal rights. We should not lightly assume that Congress, acting as a trustee of the Tribe's interests, wished to deprive the Tribe of access to food supplies that it might need and had always utilized. It is likely that the United ' interests in 1901 had little to do with preserving the formal structure of the 186 Treaty, an interest that the Court today assumes. Although the 186 Treaty required the Tribe to stay on the land reserved to it by the Treaty, the alternative in 186 was the Tribe's continued presence on over 22 million acres of land to which it held aboriginal title. The land on which the Tribe was to stay, although poor land for settlement, was known to contain game, fish, and vegetation in such quantities as to allow the Tribe to be self-sufficient with no reason to wander. By 1901, there was no longer an issue as to whether the Tribe would ever again wander over the 22 million acres they had once held under aboriginal title the Klamath had fully accepted that they would remain on a much smaller area. But the issue of retaining the Tribe's self-sufficiency was still a concern. In 1901, the Klamath were not viewed as hostile Indians, see n. 5, infra, and the surrounding land was minimally settled at best. For the United to prohibit all tribal *78 access to the ceded areas would have served no interest that the United ever |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | areas would have served no interest that the United ever publicly declared, and it would have compromised the Klamath's ability to remain self-sufficient. It is thus unreasonable to believe that the United while purporting to act for the benefit of the Indians, placed a high priority on assuring that the Klamath be strictly confined to the now-diminished area of their reservation, even if that would mean less access to food. The United ' interests would have been fully served by reading the 186 Treaty to require only that the Tribe not leave the area that was initially specified as the reservation. Article IV of the 1901 Agreement can thus easily be seen as an effort to preserve the Tribe's right to travel, hunt, and fish on the full area of the original reservation, so long as those activities are consistent with the Tribe's loss of exclusive possessory rights in the ceded lands. So long as the ceded lands were not opened to significant settlement, this resolution would fully serve what interest there still was in containing the Klamath and would not compromise the shared interest in continuing the Klamath's self-sufficiency. (3) This interpretation of the parties' perspectives fully conforms to what we know of the parties' subsequent behavior.[6] Congress never opened the ceded lands to settlement, and in fact, by the time it had ratified the 1901 Agreement, "[v]irtually all the land ceded by the Tribe was closed to entry and placed in either national forests or parks." App. 13-1 No argument has been made that continued hunting and fishing by the Indians is incompatible with the land's uses. The Tribe's behavior is also fully consistent *785 with its current interpretation of the Agreement. The parties have stipulated that the Tribe has in fact "continued to hunt, fish and trap on the excluded lands from the time of their cession to the present," Thus, no subsequent behavior of the United or of the Tribe reflects an expectation that the Tribe would alter its hunting and fishing patterns as a result of the cession. () Last, the 1901 Agreement's treatment of the issue of compensation also provides evidence that the parties did not envision that the Agreement denied the Klamath continued access to these traditional hunting and fishing grounds. The parties have stipulated that the Commission in no way considered the land's value for hunting or fishing when it calculated the proper compensation to the Tribe. Yet, the Commission was well aware that the land was a hunting and fishing ground of some importance to the Tribe. Similarly, when the Indian |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | of some importance to the Tribe. Similarly, when the Indian Claims Commission reviewed and supplemented the compensation awarded the Klamath more than six decades after the ratification of the Agreement it never assigned any value to hunting or fishing rights. ; see also Klamath and Modoc Tribes v. United 20 Ind. Cl. Comm'n 522 (1969). The silence of both these bodies is not surprising, if one accepts that the cession did not envision that Indian hunting and fishing would cease. We do not normally assume that the United without providing compensation, intended to deprive a tribe of valued hunting and fishing rights. Menominee Tribe of ; cf. United Nor should we lightly assume that the Tribe silently accepted the lack of specific compensation because its members understood that their valued hunting and fishing rights were merely incidental to land ownership.[7] C The analysis of the Agreement offered here is fully consistent with this Court's prior cases regarding Indian hunting and fishing rights. We have accepted that nonexclusive hunting and fishing rights have often existed independently from rights of exclusive possession of land. Thus, there have been many treaties in which Indians have explicitly reserved nonexclusive hunting and fishing rights while ceding the corresponding lands. See nn. 1 and Similarly, Congress has explicitly reserved to a Tribe continued hunting and fishing rights even after a reservation has been fully terminated. See, e. g., 25 U.S. C. 56m(b) (fishing rights explicitly reserved upon termination of Klamath Reservation in 195); see also (CA9), cert. denied, U.S. 826 But most importantly, this Court has held that hunting and fishing rights can by implication survive the full termination of a reservation, even where the enactment terminating the reservation is written in broad language and makes no reference to those rights' survival. Menominee Tribe of In this case, as a result of the erroneous survey there was a de facto separation of the Klamath's hunting and fishing *787 rights from their rights of exclusive possession of the land. The former rights existed to the extent they could, consistent with the loss of the latter rights. In essence, the Tribe was left with off-reservation rights to hunt and fish on land from which it could not exclude others. The 1901 Agreement, which preserved to the Klamath all "benefits to which they are entitled under existing treaties, not inconsistent with the provisions of the [cession]," was not meant to take from them what was left of their right of access to their traditional hunting and fishing grounds. III In light of this Court's repeated statements that |
Justice Marshall | 1,985 | 15 | dissenting | Oregon Dept. of Fish and Wildlife v. Klamath Tribe | https://www.courtlistener.com/opinion/111516/oregon-dept-of-fish-and-wildlife-v-klamath-tribe/ | grounds. III In light of this Court's repeated statements that the abrogation of Indian rights should not be lightly inferred, and that treaties be interpreted as they would have been understood by the Indians, I find the Court's opinion today disturbing. Rather than follow the sort of historical inquiry that these canons should call for, the Court analyzes the case as one involving little more than the plain meaning of boilerplate language. It turns to history only to determine if its perceived "plain meaning" would be an impossible one. Ultimately, this produces a largely insensitive and conclusory historical inquiry that ignores how events almost certainly appeared to the Tribe. The decision today represents another erroneous deprivation of the Klamath's tribal rights. The Court has offered no reason to believe the 1901 Agreement was designed to accomplish anything other than the redress of the wrong that had already been done to the Tribe. The Court has certainly offered no reason to believe that it was designed to effectuate a further diminution of the Klamath's rights. I respectfully dissent. |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | Petitioner was tried on charges of violating a number of federal criminal statutes penalizing fraud. It is agreed that the District Court erred in refusing to submit the issue of materiality to the jury with respect to those charges involving tax fraud. See United v., We hold that the harmless-error rule of applies to this error. We also hold that materiality is an element of the federal mail fraud, wire fraud, and bank fraud statutes under which petitioner was also charged. I In the mid-1980's, petitioner Ellis E. Neder, Jr., an attorney and real estate developer in Jacksonville, Florida, engaged in a number of real estate transactions financed by fraudulently obtained bank loans. Between 1984 and 1986, Neder purchased 12 parcels of land using shell corporations set up by his attorneys and then immediately resold the land at much higher prices to limited partnerships that he controlled. * Using inflated appraisals, Neder secured bank loans that typically amounted to 70% to 7% of the inflated resale price of the land. In so doing, he concealed from lenders that he controlled the shell corporations, that he had purchased the land at prices substantially lower than the inflated resale prices, and that the limited partnerships had not made substantial down payments as represented. In several cases, Neder agreed to sign affidavits falsely stating that he had no relationship to the shell corporations and that he was not sharing in the profits from the inflated land sales. By keeping for himself the amount by which the loan proceeds exceeded the original purchase price of the land, Neder was able to obtain more than $7 million. He failed to report nearly all of this money on his personal income tax returns. He eventually defaulted on the loans. Neder also engaged in a number of schemes involving land development fraud. In 198, he obtained a $4,10,000 construction loan to build condominiums on a project known as Cedar Creek. To obtain the loan, he falsely represented to the lender that he had satisfied a condition of the loan by making advance sales of 20 condominium units. In fact, he had been unable to meet the condition, so he secured additional buyers by making their down payments himself. He then had the down payments transferred back to him from the escrow accounts into which they had been placed. Neder later defaulted on the loan without repaying any of the principal. He employed a similar scheme to obtain a second construction loan of $,400,000, and unsuccessfully attempted to obtain an additional loan in the same manner. Neder also |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | obtain an additional loan in the same manner. Neder also obtained a consolidated $14 million land acquisition and development loan for a project known as Reddie Point. Pursuant to the loan, Neder could request funds for work actually performed on the project. Between September 1987 and March 1988, he submitted numerous requests based on false invoices, the lender approved the requests, *6 and he obtained almost $ million unrelated to any work actually performed. Neder was indicted on, among other things, 9 counts of mail fraud, in violation of 18 U.S. C. 141; 9 counts of wire fraud, in violation of 14; 12 counts of bank fraud, in violation of 144; and 2 counts of filing a false income tax return, in violation of 26 U.S. C. 7206(1). The fraud counts charged Neder with devising and executing various schemes to defraud lenders in connection with the land acquisition and development loans, totaling over $40 million. The tax counts charged Neder with filing false statements of income on his tax returns. According to the Government, Neder failed to report more than $1 million in income for 198 and more than $4 million in income for 1986, both amounts reflecting profits Neder obtained from the fraudulent real estate loans. In accordance with then-extant Circuit precedent and over Neder's objection, the District Court instructed the jury that, to convict on the tax offenses, it "need not consider" the materiality of any false statements "even though that language is used in the indictment." App. 26. The question of materiality, the court instructed, "is not a question for the jury to decide." The court gave a similar instruction on bank fraud, and subsequently found, outside the presence of the jury, that the evidence established the materiality of all the false statements at issue, In instructing the jury on mail fraud and wire fraud, the District Court did not include materiality as an element of either offense. Neder again objected to the instruction. The jury convicted Neder of the fraud and tax offenses, and he was sentenced to 147 months' imprisonment, years' supervised release, and $2 million in restitution. The Court of Appeals for the Eleventh Circuit affirmed the conviction. It held that the District Court erred under our intervening decision in United in failing to submit the materiality element of the tax offense to the jury. It concluded, however, that the error was subject to harmless-error analysis and, further, that the error was harmless because "materiality was not in dispute," and thus the error "`did not contribute to the verdict obtained,' " ). The Court |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | not contribute to the verdict obtained,' " ). The Court of Appeals also held that materiality is not an element of the mail fraud, wire fraud, and bank fraud statutes, and thus the District Court did not err in failing to submit the question of materiality to the jury. We granted certiorari, to resolve a conflict in the Courts of Appeals on two questions: (1) whether, and under what circumstances, the omission of an element from the judge's charge to the jury can be harmless error, and (2) whether materiality is an element of the federal mail fraud, wire fraud, and bank fraud statutes. II Rule 2(a) of the Federal Rules of Criminal Procedure, which governs direct appeals from judgments of conviction in the federal system, provides that "[a]ny error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Although this Rule by its terms applies to all errors where a proper objection is made at trial, we have recognized a limited class of fundamental constitutional errors that "defy analysis by `harmless error' standards." ; see Errors of this type are so intrinsically harmful as to require automatic reversal (i. e., "affect substantial rights") without regard to their effect on the outcome. For all other constitutional errors, reviewing courts must apply Rule 2(a)'s harmless-error analysis and must "disregar[d]" errors that are harmless "beyond a reasonable doubt." *8 In this case the Government does not dispute that the District Court erred under in deciding the materiality element of a 7206(1) offense itself, rather than submitting the issue to the jury. See Brief for United 10, and n. 1. We must decide whether the error here is subject to harmless-error analysis and, if so, whether the error was harmless. A We have recognized that "most constitutional errors can be harmless." "[I]f the defendant had counsel and was tried by an impartial adjudicator, there is a strong presumption that any other [constitutional] errors that may have occurred are subject to harmless-error analysis." Indeed, we have found an error to be "structural," and thus subject to automatic reversal, only in a "very limited class of cases." ; ; ; ; ; ). The error at issue herea jury instruction that omits an element of the offensediffers markedly from the constitutional violations we have found to defy harmless-error review. Those cases, we have explained, contain a "defect affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself." Such errors "infect the entire trial process," and "necessarily render a trial fundamentally unfair," Put another |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | process," and "necessarily render a trial fundamentally unfair," Put another way, these errors deprive defendants of "basic protections" without which "a criminal *9 trial cannot reliably serve its function as a vehicle for determination of guilt or innocenceand no criminal punishment may be regarded as fundamentally fair." Unlike such defects as the complete deprivation of counsel or trial before a biased judge, an instruction that omits an element of the offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. Our decision in is instructive. was a perjury prosecution in which, as here, the element of materiality was decided by the judge rather than submitted to the jury. The defendant failed to object at trial, and we thus reviewed her claim for "plain error." Although reserving the question whether the omission of an element ipso facto "`affect[s] substantial rights,' " 20 U.S., at -469, we concluded that the error did not warrant correction in light of the "`overwhelming' " and "uncontroverted" evidence supporting materiality, Based on this evidence, we explained, the error did not "`seriously affec[t] the fairness, integrity or public reputation of judicial proceedings.' " ). That conclusion cuts against the argument that the omission of an element will always render a trial unfair. In fact, as this case shows, quite the opposite is true: Neder was tried before an impartial judge, under the correct standard of proof and with the assistance of counsel; a fairly selected, impartial jury was instructed to consider all of the evidence and argument in respect to Neder's defense against the tax charges. Of course, the court erroneously failed to charge the jury on the element of materiality, but that error did not render Neder's trial "fundamentally unfair," as that term is used in our cases. We have often applied harmless-error analysis to cases involving improper instructions on a single element of the offense. See, e. g., *10 ; v. (mandatory conclusive presumption); ; In other cases, we have recognized that improperly omitting an element from the jury can "easily be analogized to improperly instructing the jury on an element of the offense, an error which is subject to harmless-error analysis." ; see also v. Roy, ("The specific error at issue herean error in the instruction that defined the crimeis as easily characterized as a `misdescription of an element' of the crime, as it is characterized as an error of `omission' "). In both casesmisdescriptions and omissionsthe erroneous instruction precludes the jury from making a finding on the actual element of the offense. The same, |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | finding on the actual element of the offense. The same, we think, can be said of conclusive presumptions, which direct the jury to presume an ultimate element of the offense based on proof of certain predicate facts (e. g., "You must presume malice if you find an intentional killing"). Like an omission, a conclusive presumption deters the jury from considering any evidence other than that related to the predicate facts (e. g., an intentional killing) and "directly foreclose[s] independent jury consideration of whether the facts proved established certain elements of the offens[e]" (e. g., malice). ; see The conclusion that the omission of an element is subject to harmless-error analysis is consistent with the holding (if not the entire reasoning) of the case upon which Neder principally relies. In the trial court gave the jury a defective "reasonable doubt" instruction in violation of the defendant's Fifth and Sixth Amendment rights to have the charged offense proved beyond a reasonable doubt. See Applying our traditional mode of analysis, *11 the Court concluded that the error was not subject to harmless-error analysis because it "vitiates all the jury's findings," 08 U.S., and produces "consequences that are necessarily unquantifiable and indeterminate," By contrast, the jury-instruction error here did not "vitiat[e] all the jury's findings." ; see It did, of course, prevent the jury from making a finding on the element of materiality. Neder argues that `s alternative reasoning precludes the application of harmless error here. Under that reasoning, harmless-error analysis cannot be applied to a constitutional error that precludes the jury from rendering a verdict of guilty-beyond-a-reasonable-doubt because "the entire premise of review is simply absent." In the absence of an actual verdict of guiltybeyond-a-reasonable-doubt, the Court explained: "[T]he question whether the same verdict of guilty-beyond-areasonable-doubt would have been rendered absent the constitutional error is utterly meaningless. There is no object, so to speak, upon which the harmless-error scrutiny can operate." ; see Neder argues that this analysis applies with equal force where the constitutional error, as here, prevents the jury from rendering a "complete verdict" on every element of the offense. As in Neder argues, the basis for harmless-error review "`is simply absent.' " Brief for Petitioner 7. Although this strand of the reasoning in does provide support for Neder's position, it cannot be squared with our harmless-error cases. In Pope, for example, the trial court erroneously instructed the jury that it could find the defendant guilty in an obscenity prosecution if it found that the allegedly obscene material lacked serious value under "community standards," rather than the correct "reasonable person" standard |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | under "community standards," rather than the correct "reasonable person" standard required by the First -01. Because the jury was not properly *12 instructed, and consequently did not render a finding, on the actual element of the offense, the defendant's trial did not result in a "complete verdict" any more than in this case. Yet we held there that harmless-error analysis was appropriate. at 02-0. Similarly, in the jury was instructed to presume that the defendant "embezzled [a] vehicle" and "[i]nten[ded] to commit theft" if the jury found that the defendant failed to return a rental car within a certain number of days after the expiration of the rental Again, the jury's finding of guilt cannot be seen as a "complete verdict" because the conclusive presumption "directly foreclosed independent jury consideration of whether the facts proved established certain elements of the offenses." As in Pope, however, we held that the unconstitutional conclusive presumption was "subject to the harmless-error rule." 491 U.S., And in Roy, a federal habeas case involving a state-court murder conviction, the trial court erroneously failed to instruct the jury that it could convict the defendant as an aider and abettor only if it found that the defendant had the "intent or purpose" of aiding the confederate's 19 U.S., at Despite that omission, we held that "[t]he case before us is a case for application of the `harmless error' standard." at The Government argues, correctly we think, that the absence of a "complete verdict" on every element of the offense establishes no more than that an improper instruction on an element of the offense violates the Sixth Amendment's jury trial guarantee. The issue here, however, is not whether a jury instruction that omits an element of the offense was error (a point that is uncontested, see ), but whether the error is subject to harmless-error analysis. We *1 think our decisions in Pope, and Roy dictate the answer to that question. Forced to accept that this Court has applied harmlesserror review in cases where the jury did not render a "complete verdict" on every element of the offense, Neder attempts to reconcile our cases by offering an approach gleaned from a plurality opinion in Connecticut v. an opinion concurring in the judgment in and language in Under this restrictive approach, an instructional omission, misdescription, or conclusive presumption can be subject to harmless-error analysis only in three "rare situations": (1) where the defendant is acquitted of the offense on which the jury was improperly instructed (and, despite the defendant's argument that the instruction affected another count, the improper instruction had |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | that the instruction affected another count, the improper instruction had no bearing on it); (2) where the defendant admitted the element on which the jury was improperly instructed; and () where other facts necessarily found by the jury are the "functional equivalent" of the omitted, misdescribed, or presumed element. See ; -271 ; 7 Neder understandably contends that Pope, and Roy fall within this last exception, which explains why the Court in those cases held that the instructional error could be harmless. We believe this approach is mistaken for more than one reason. As an initial matter, we are by no means certain that the cases just mentioned meet the "functional equivalence" test as Neder at times articulates it. See Brief for Petitioner 29 ("[A]ppellate courts [cannot be] given even the slightest latitude to review the record to `fill the gaps' in a jury verdict, as `minor' as those gaps may seem"). In Pope, for example, there was necessarily a "gap" between what the jury did find (that the allegedly obscene material lacked value under "community standards") and what it was required *14 to find to convict (that the material lacked value under a national "reasonable person" standard). Petitioner's submission would have mandated reversal for a new trial in that case, because a juror in Rockford, Illinois, who found that the material lacked value under community standards, would not necessarily have found that it did so under presumably broader and more tolerant national standards. But since we held that harmless-error analysis was appropriate in Pope, that case not only does not support petitioner's approach, but rejects it. Petitioner's submission also imports into the initial structural-error determination (i. e., whether an error is structural) a case-by-case approach that is more consistent with our traditional harmless-error inquiry (i. e., whether an error is harmless). Under our cases, a constitutional error is either structural or it is not. Thus, even if we were inclined to follow a broader "functional equivalence" test (e. g., where other facts found by the jury are "so closely related" to the omitted element "that no rational jury could find those facts without also finding" the omitted element, 08 U. S., ), such a test would be inconsistent with our traditional categorical approach to structural errors. We also note that the present case arose in the legal equivalent of a laboratory test tube. The trial court, following existing law, ruled that the question of materiality was for the court, not the jury. It therefore refused a charge on the question of materiality. But future cases are not likely to |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | question of materiality. But future cases are not likely to be so clear cut. In Roy, we said that the error in question could be "as easily characterized as a `misdescription of an element' of the crime, as it is characterized as an error of `omission.' " 19 U.S., at As petitioner concedes, his submission would thus call into question the far more common subcategory of misdescriptions. And it would require a reviewing court in each case to determine just how serious a "misdescription" it was. *1 Difficult as such issues would be when dealing with the ample volume defining federal crimes, they would be measurably compounded by the necessity for federal courts, reviewing state convictions under 28 U.S. C. 224, to ascertain the elements of the offense as defined in the laws of 0 different It would not be illogical to extend the reasoning of from a defective "reasonable doubt" instruction to a failure to instruct on an element of the But, as indicated in the foregoing discussion, the matter is not res nova under our case law. And if the life of the law has not been logic but experience, see O. Holmes, The Common Law 1 (1881), we are entitled to stand back and see what would be accomplished by such an extension in this case. The omitted element was materiality. Petitioner under reported $ million on his tax returns, and did not contest the element of materiality at trial. Petitioner does not suggest that he would introduce any evidence bearing upon the issue of materiality if so allowed. Reversal without any consideration of the effect of the error upon the verdict would send the case back for retriala retrial not focused at all on the issue of materiality, but on contested issues on which the jury was properly instructed. We do not think the Sixth Amendment requires us to veer away from settled precedent to reach such a result. B Having concluded that the omission of an element is an error that is subject to harmless-error analysis, the question remains whether Neder's conviction can stand because the error was harmless. In we set forth the test for determining whether a constitutional error is harmless. That test, we said, is whether it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." ; see 47 U.S. 67, To obtain a conviction on the tax offense at issue, the Government must prove that the defendant filed a tax return "which he does not believe to be true and correct as to |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | does not believe to be true and correct as to every material matter." 26 U.S. C. 7206(1). In general, a false statement is material if it has "a natural tendency to influence, or [is] capable of influencing, the decision of the decision-making body to which it was addressed." United v. 1 U. S., at 09 ). In a prosecution under 7206(1), several courts have determined that "any failure to report income is material." United v. Holland, ; see Under either of these formulations, no jury could reasonably find that Neder's failure to report substantial amounts of income on his tax returns was not "a material matter."[1] At trial, the Government introduced evidence that Neder failed to report over $ million in income from the loans he obtained. The failure to report such substantial income incontrovertibly establishes that Neder's false statements were material to a determination of his income tax liability. The evidence supporting materiality was so overwhelming, in fact, that Neder did not argue to the juryand does not argue herethat his false statements of income could be found immaterial. Instead, he defended against the tax charges by arguing that the loan proceeds were not income *17 because he intended to repay the loans, and that he reasonably believed, based on the advice of his accountant and lawyer, that he need not report the proceeds as income. App. 208-211, 2 (closing argument). In this situation, where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. We think it beyond cavil here that the error "did not contribute to the verdict obtained." Neder disputes our conclusion that the error in this case was harmless. Relying on language in our and decisions, he argues that a finding of harmless error may be made only upon a determination that the jury rested its verdict on evidence that its instructions allowed it to consider. See 08 U. S., at 279; 00 U. S., at 404. To rely on overwhelming record evidence of guilt the jury did not actually consider, he contends, would be to dispense with trial by jury and allow judges to direct a guilty verdict on an element of the offense.[2] But at bottom this is simply another form of the argument that a failure to instruct on any element of the crime is not subject to harmless-error analysis. involved constitutionally infirm presumptions on an issue that was the crux |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | constitutionally infirm presumptions on an issue that was the crux of the casethe defendant's intent. But in the case of an omitted element, as the present one, the jury's instructions preclude any consideration of evidence relevant to the omitted *18 element, and thus there could be no harmless-error analysis. Since we have previously concluded that harmlesserror analysis is appropriate in such a case, we must look to other cases decided under for the proper mode of analysis. The erroneous admission of evidence in violation of the Fifth Amendment's guarantee against self-incrimination, see and the erroneous exclusion of evidence in violation of the right to confront witnesses guaranteed by the Sixth Amendment, see Delaware v.Van Arsdall, 47 U.S. 67 are both subject to harmless-error analysis under our cases. Such errors, no less than the failure to instruct on an element in violation of the right to a jury trial, infringe upon the jury's factfinding role and affect the jury's deliberative process in ways that are, strictly speaking, not readily calculable. We think, therefore, that the harmless-error inquiry must be essentially the same: Is it clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error? To set a barrier so high that it could never be surmounted would justify the very criticism that spawned the harmless-error doctrine in the first place: "Reversal for error, regardless of its effect on the judgment, encourages litigants to abuse the judicial process and bestirs the public to ridicule it." R. The Riddle of Harmless Error 0 (1970). We believe that where an omitted element is supported by uncontroverted evidence, this approach reaches an appropriate balance between "society's interest in punishing the guilty [and] the method by which decisions of guilt are to be made." Connecticut v. 460 U. S., 6 The harmless-error doctrine, we have said, "recognizes the principle that the central purpose of a criminal trial is to decide the factual question of the defendant's guilt or innocence, and promotes public respect for the criminal process by focusing on the underlying fairness of the trial." *19 Van Arsdall, at At the same time, we have recognized that trial by jury in serious criminal cases "was designed `to guard against a spirit of oppression and tyranny on the part of rulers,' and `was from very early times insisted on by our ancestors in the parent country, as the great bulwark of their civil and political liberties.' " 1 U. S., at 10-11 (quoting 2 J. Story, Commentaries on the Constitution of the United 40-41 (4th ed. 187)). In |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | the Constitution of the United 40-41 (4th ed. 187)). In a case such as this one, where a defendant did not, and apparently could not, bring forth facts contesting the omitted element, answering the question whether the jury verdict would have been the same absent the error does not fundamentally undermine the purposes of the jury trial guarantee. Of course, safeguarding the jury guarantee will often require that a reviewing court conduct a thorough examination of the record. If, at the end of that examination, the court cannot conclude beyond a reasonable doubt that the jury verdict would have been the same absent the errorfor example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary findingit should not find the error harmless. A reviewing court making this harmless-error inquiry does not, as Justice put it, "become in effect a second jury to determine whether the defendant is guilty." Rather a court, in typical appellatecourt fashion, asks whether the record contains evidence that could rationally lead to a contrary finding with respect to the omitted element. If the answer to that question is "no," holding the error harmless does not "reflec[t] a denigration of the constitutional rights involved." On the contrary, it "serve[s] a very useful purpose insofar as [it] block[s] setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial." We thus hold that the District Court's failure to submit the *20 element of materiality to the jury with respect to the tax charges was harmless error. III We also granted certiorari in this case to decide whether materiality is an element of a "scheme or artifice to defraud" under the federal mail fraud (18 U.S. C. 141), wire fraud ( 14), and bank fraud ( 144) statutes. The Court of Appeals concluded that the failure to submit materiality to the jury was not error because the fraud statutes do not require that a "scheme to defraud" employ material falsehoods. We disagree. Under the framework set forth in United v. Wells, 19 U.S. 482 we first look to the text of the statutes at issue to discern whether they require a showing of materiality. In this case, we need not dwell long on the text because, as the parties agree, none of the fraud statutes defines the phrase "scheme or artifice to defraud," or even mentions materiality. Although the mail fraud and wire fraud statutes contain different jurisdictional elements ( 141 requires use of the mails while 14 requires use of interstate |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | use of the mails while 14 requires use of interstate wire facilities), they both prohibit, in pertinent part, "any scheme or artifice to defraud" or to obtain money or property "by means of false or fraudulent pretenses, representations, or promises."[] The bank fraud statute, which was modeled on *21 the mail and wire fraud statutes, similarly prohibits any "scheme or artifice to defraud a financial institution" or to obtain any property of a financial institution "by false or fraudulent pretenses, representations, or promises."[4] Thus, based solely on a "natural reading of the full text," materiality would not be an element of the fraud statutes. That does not end our inquiry, however, because in interpreting statutory language there is a necessary second step. It is a well-established rule of construction that "`[w]here Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.' " Nationwide Mut. 0 U.S. 18, ); see Standard Oil Co. of N. J. v. United 9 Neder contends that "defraud" is just such a term, and that Congress implicitly incorporated its common-law meaning, including its requirement of materiality,[] into the statutes at issue. The Government does not dispute that both at the time of the mail fraud statute's original enactment in 1872, and later when Congress enacted the wire fraud and bank fraud statutes, actionable "fraud" had a well-settled meaning at common law. Nor does it dispute that the well-settled meaning of "fraud" required a misrepresentation or concealment of material fact. Indeed, as the sources we are aware of demonstrate, the common law could not have conceived of "fraud" without proof of materiality. See BMW of North America, 17 U.S. 9, ("[A]ctionable fraud requires a material misrepresentation or omission" (citing Restatement (Second) of Torts 8 (1977); W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 108 )); ; see also 1 J. Story, Commentaries on Equity Jurisprudence 19 (10th ed. 1870) ("In the first place, the misrepresentation must be of something material, constituting an inducement or motive to the act or omission of the other *2 party"). Thus, under the rule that Congress intends to incorporate the well-settled meaning of the common-law terms it uses, we cannot infer from the absence of an express reference to materiality that Congress intended to drop that element from the fraud statutes.[6] On the contrary, we must presume that Congress intended to incorporate materiality "`unless the statute otherwise dictates.' " Nationwide Mut. at[7] |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | materiality "`unless the statute otherwise dictates.' " Nationwide Mut. at[7] The Government attempts to rebut this presumption by arguing that the term "defraud" would bear its common-law meaning only if the fraud statutes "indicated that Congress had codified the crime of false pretenses or one of the common-law torts sounding in fraud." Brief for United 7. Instead, the Government argues, Congress chose *24 to unmoor the mail fraud statute from its common-law analogs by punishing, not the completed fraud, but rather any person "having devised or intending to devise any scheme or artifice to defraud." Read in this light, the Government contends, there is no basis to infer that Congress intended to limit criminal liability to conduct that would constitute "fraud" at common law, and in particular, to material misrepresentations or omissions. Rather, criminal liability would exist so long as the defendant intended to deceive the victim, even if the particular means chosen turn out to be immaterial, i. e., incapable of influencing the intended victim. See n. The Government relies heavily on Durland v. United 161 U.S. 06 our first decision construing the mail fraud statute, to support its argument that the fraud statutes sweep more broadly than common-law fraud. But Durland was different from this case. There, the defendant, who had used the mails to sell bonds he did not intend to honor, argued that he could not be held criminally liable because his conduct did not fall within the scope of the common-law crime of "false pretenses." We rejected the argument that "the statute reaches only such cases as, at common law, would come within the definition of `false pretenses,' in order to make out which there must be a misrepresentation as to some existing fact and not a mere promise as to the future." at 12. Instead, we construed the statute to "includ[e] everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future." at 1. Although Durland held that the mail fraud statute reaches conduct that would not have constituted "false pretenses" at common law, it did not hold, as the Government argues, that the statute encompasses more than common-law fraud. In one sense, the Government is correct that the fraud statutes did not incorporate all the elements of common-law fraud. The common-law requirements of "justifiable reliance" *2 and "damages," for example, plainly have no place in the federal fraud statutes. See, e. g., United v. Stewart, 872 F.2d 97, ; United v. Rowe, 6 F.2d 747, (CA2) (L. Hand, J.) ("Civilly of course the [mail |
Justice Rehnquist | 1,999 | 19 | majority | Neder v. United States | https://www.courtlistener.com/opinion/118298/neder-v-united-states/ | 747, (CA2) (L. Hand, J.) ("Civilly of course the [mail fraud statute] would fail without proof of damage, but that has no application to criminal liability"), cert. denied, 286 U.S. 4 (192). By prohibiting the "scheme to defraud," rather than the completed fraud, the elements of reliance and damage would clearly be inconsistent with the statutes Congress enacted. But while the language of the fraud statutes is incompatible with these requirements, the Government has failed to show that this language is inconsistent with a materiality requirement. Accordingly, we hold that materiality of falsehood is an element of the federal mail fraud, wire fraud, and bank fraud statutes. Consistent with our normal practice where the court below has not yet passed on the harmlessness of any error, see -267, we remand this case to the Court of Appeals for it to consider in the first instance whether the jury-instruction error was harmless. IV The judgment of the Court of Appeals respecting the tax fraud counts is affirmed. The judgment of the Court of Appeals on the remaining counts is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Justice Stevens, concurring in part and concurring in the judgment. |
Justice Stevens | 1,981 | 16 | concurring | Federal Election Comm'n v. Democratic Senatorial Campaign Comm. | https://www.courtlistener.com/opinion/110577/federal-election-commn-v-democratic-senatorial-campaign-comm/ | The issue presented in this case is whether the National Republican Senatorial Committee (NRSC) violated the Federal Election Campaign Act, 2 U.S. C. 441 et seq. (1976 ed. and Supp. IV), by making expenditures that state political committees are authorized to make under 441a(d)(1). Section 441a(d)(1) authorizes "the national committee of a political party and a State committee of a political party, including any subordinate committee of a State committee," to make certain expenditures in connection with a candidate's general election campaign, subject to defined limitations. See 441a(d)(3). Since the NRSC clearly is not "the national committee of a political party,"[1] or "a State committee of a political party, including any subordinate committee of a State committee,"[2] it is clear that nothing in 441a(d)(3) limits the permissible expenditure of funds by the NRSC. The NRSC is, however, a "political committee" as that term is defined in the statute.[3] Section 441a(a)(2)(A) provides *44 that no multicandidate political committee may make contributions to a candidate that exceed $5,000.[4] Section 441a(h) provides, however, that "amounts totaling not more than $17,500 may be contributed to a candidate for nomination for election, or for election, to the United States Senate during the year in which an election is held in which he is such a candidate, by the Republican or Democratic Senatorial Campaign Committee" No section of the statute directly limits expenditures by the Republican or Democratic Senatorial Campaign Committees.[5] However, 441a(a)(7) (B)(i) provides that "expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of, a candidate, his authorized political committees, or their agents, shall be considered to be a contribution to such candidate." Thus, the only way that the NRSC could be said to have violated the statute in this case is if it made expenditures "in cooperation, consultation, or concert" with a candidate that exceeded $17,500. The record discloses that the NRSC in several instances made expenditures that exceeded $17,500. As I understand the record, however, it does not demonstrate that these expenditures were made in cooperation, consultation, or concert with the candidates. The record simply is silent on this point. The only way that the NRSC could be said to have violated the statute, therefore, is if, as a matter of law, it is incapable of making expenditures that are not made in cooperation, *45 consultation, or concert with a candidate. In other words, the NRSC could not be said to have violated the statute unless the NRSC is deemed as a matter of law to be an agent of the candidate on whose |
Justice Stevens | 1,981 | 16 | concurring | Federal Election Comm'n v. Democratic Senatorial Campaign Comm. | https://www.courtlistener.com/opinion/110577/federal-election-commn-v-democratic-senatorial-campaign-comm/ | law to be an agent of the candidate on whose behalf it expends funds. If this is the case, however, it would appear to me to follow almost automatically that the NRSC may act as an agent for the state committees in spending the amounts that state committees are authorized to spend by 441a(d), since state committees are largely controlled by the state candidates that they serve. It would seem incongruous to hold that the NRSC must be treated as an agent of a candidate when it makes expenditures, but may not act as a lawful agent of that candidate's state committee. I concur fully in the conclusion of the Court that the agency relationship utilized in this case does not violate the Act, and I join its opinion subject only to the caveat that I am not entirely sure that the expenditures at issue in this case "otherwise would be impermissible," ante, at 28, and n. 1. I assume, arguendo, that this is so, for otherwise petitioners would bear absolutely no burden to justify the expenditures made in this case.[6] |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | We granted certiorari to review the holding of the Court of Appeals (a) that the Environmental Protection Agency's aerial observation of petitioner's plant complex did not exceed EPA's statutory investigatory authority, and (b) that EPA's aerial photography of petitioner's 2,000-acre plant complex without a warrant was not a search under the Fourth Amendment. I Petitioner Dow Chemical Co. operates a 2,000-acre facility manufacturing chemicals at Midland, Michigan. The facility consists of numerous covered buildings, with manufacturing equipment and piping conduits located between the various buildings exposed to visual observation from the air. At all times, Dow has maintained elaborate security around the perimeter of the complex barring ground-level public views of these areas. It also investigates any low-level flights by aircraft over the facility. Dow has not undertaken, however, to conceal all manufacturing equipment within the complex from aerial views. Dow maintains that the cost of covering its exposed equipment would be prohibitive. In early 1978, enforcement officials of EPA, with Dow's consent, made an on-site inspection of two powerplants in this complex. A subsequent EPA request for a second inspection, however, was denied, and EPA did not thereafter seek an administrative search warrant. Instead, EPA employed a commercial aerial photographer, using a standard floor-mounted, precision aerial mapping camera, to take photographs of the facility from altitudes of 12,000, 3,000, and 1,200 feet. At all times the aircraft was lawfully within navigable airspace. See 49 U.S. C. App. 1304; 14 CFR 91.79 *230 EPA did not inform Dow of this aerial photography, but when Dow became aware of it, Dow brought suit in the District Court alleging that EPA's action violated the Fourth Amendment and was beyond EPA's statutory investigative authority. The District Court granted Dow's motion for summary judgment on the ground that EPA had no authority to take aerial photographs and that doing so was a search violating the Fourth Amendment. EPA was permanently enjoined from taking aerial photographs of Dow's premises and from disseminating, releasing, or copying the photographs already taken. The District Court accepted the parties' concession that EPA's " `quest for evidence' " was a "search," and limited its analysis to whether the search was unreasonable under Proceeding on the assumption that a search in Fourth Amendment terms had been conducted, the court found that Dow manifested an expectation of privacy in its exposed plant areas because it intentionally surrounded them with buildings and other -1366. The District Court held that this expectation of privacy was reasonable, as reflected in part by trade secret protections restricting Dow's commercial competitors from aerial photography of these exposed |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | restricting Dow's commercial competitors from aerial photography of these exposed areas. The court emphasized that use of "the finest precision aerial camera available" permitted EPA to capture on film "a great deal more than the human eye could ever see." The Court of Appeals reversed. It recognized that Dow indeed had a subjective expectation of privacy in certain areas from ground-level intrusions, but the court was not persuaded that Dow had a subjective expectation of being free from aerial surveillance since Dow had taken no precautions against such observation, in contrast to its elaborate ground-level precautions. The court rejected the argument that it was not feasible to shield any of the critical parts of the exposed plant areas from aerial surveys. The Court of Appeals, *231 however, did not explicitly reject the District Court's factual finding as to Dow's subjective expectations. Accepting the District Court finding of Dow's privacy expectation, the Court of Appeals held that it was not a reasonable expectation "[w]hen the entity observed is a multibuilding complex, and the area observed is the outside of these buildings and the spaces in between the buildings." Viewing Dow's facility to be more like the "open field" in than a home or an office, it held that the common-law curtilage doctrine did not apply to a large industrial complex of closed buildings connected by pipes, conduits, and other exposed manufacturing 749 F.2d, -314. The Court of Appeals looked to "the peculiarly strong concepts of intimacy, personal autonomy and privacy associated with the home" as the basis for the curtilage protection. The court did not view the use of sophisticated photographic equipment by EPA as controlling. The Court of Appeals then held that EPA clearly acted within its statutory powers even absent express authorization for aerial surveillance, concluding that the delegation of general investigative authority to EPA, similar to that of other law enforcement agencies, was sufficient to support the use of aerial photography. II The photographs at issue in this case are essentially like those commonly used in mapmaking. Any person with an airplane and an aerial camera could readily duplicate them. In common with much else, the technology of photography has changed in this century. These developments have enhanced industrial processes, and indeed all areas of life; they have also enhanced law enforcement techniques. Whether they may be employed by competitors to penetrate trade secrets is not a question presented in this case. Governments do not generally seek to appropriate trade secrets of the private *232 sector, and the right to be free of appropriation of trade secrets is |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | right to be free of appropriation of trade secrets is protected by law. Dow nevertheless relies heavily on its claim that trade secret laws protect it from any aerial photography of this industrial complex by its competitors, and that this protection is relevant to our analysis of such photography under the Fourth Amendment. That such photography might be barred by state law with regard to competitors, however, is irrelevant to the questions presented here. State tort law governing unfair competition does not define the limits of the Fourth Amendment. Cf. The Government is seeking these photographs in order to regulate, not to compete with, Dow. If the Government were to use the photographs to compete with Dow, Dow might have a Fifth Amendment "taking" claim. Indeed, Dow alleged such a claim in its complaint, but the District Court dismissed it without prejudice. But even trade secret laws would not bar all forms of photography of this industrial complex; rather, only photography with an intent to use any trade secrets revealed by the photographs may be proscribed. Hence, there is no prohibition of photographs taken by a casual passenger on an airliner, or those taken by a company producing maps for its mapmaking purposes. Dow claims first that EPA has no authority to use aerial photography to implement its statutory authority for "site inspection" under 114(a) of the Clean Air Act, 42 U.S. C. 7414(a);[1] second, Dow claims EPA's use of aerial photography *233 was a "search" of an area that, notwithstanding the large size of the plant, was within an "industrial curtilage" rather than an "open field," and that it had a reasonable expectation of privacy from such photography protected by the Fourth Amendment. III Congress has vested in EPA certain investigatory and enforcement authority, without spelling out precisely how this authority was to be exercised in all the myriad circumstances that might arise in monitoring matters relating to clean air and water standards. When Congress invests an agency with enforcement and investigatory authority, it is not necessary to identify explicitly each and every technique that may be used in the course of executing the statutory mission. Aerial observation authority, for example, is not usually expressly extended to police for traffic control, but it could hardly be thought necessary for a legislative body to tell police that aerial observation could be employed for traffic control of a metropolitan area, or to expressly authorize police to send messages to ground highway patrols that a particular over-the-road truck was traveling in excess of 55 miles per hour. Common sense and ordinary human |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | of 55 miles per hour. Common sense and ordinary human experience teach that traffic violators are apprehended by Regulatory or enforcement authority generally carries with it all the modes of inquiry and investigation traditionally employed or useful to execute the authority granted. Environmental standards such as clean air and clean water cannot be enforced only in libraries and laboratories, helpful as those institutions may be. Under 114(a)(2), the Clean Air Act provides that "upon presentation of credentials," EPA has a "right of entry to, upon, or through any premises." 42 U.S. C. 7414(a)(2)(A). Dow argues this limited grant of authority to enter does not *234 authorize any aerial In particular, Dow argues that unannounced aerial observation deprives Dow of its right to be informed that an inspection will be made or has occurred, and its right to claim confidentiality of the information contained in the places to be photographed, as provided in 114(a) and (c), 42 U.S. C. 7414(a) and (c). It is not claimed that EPA has disclosed any of the photographs outside the agency. Section 114(a), however, appears to expand, not restrict, EPA's general powers to investigate. Nor is there any suggestion in the statute that the powers conferred by this section are intended to be exclusive. There is no claim that EPA is prohibited from taking photographs from a ground-level location accessible to the general public. EPA, as a regulatory and enforcement agency, needs no explicit statutory provision to employ methods of observation commonly available to the public at large: we hold that the use of aerial observation and photography is within EPA's statutory authority.[2] IV We turn now to Dow's contention that taking aerial photographs constituted a search without a warrant, thereby violating Dow's rights under the Fourth Amendment. In making this contention, however, Dow concedes that a simple flyover with naked-eye observation, or the taking of a photograph from a nearby hillside overlooking such a facility, would give rise to no Fourth Amendment problem. In California v. ante, p. 207, decided today, we hold that naked-eye aerial observation from an altitude of *235 1,000 feet of a backyard within the curtilage of a home does not constitute a search under the Fourth Amendment. In the instant case, two additional Fourth Amendment claims are presented: whether the common-law "curtilage" doctrine encompasses a large industrial complex such as Dow's, and whether photography employing an aerial mapping camera is permissible in this context. Dow argues that an industrial plant, even one occupying 2,000 acres, does not fall within the "open fields" doctrine of but rather is an "industrial |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | the "open fields" doctrine of but rather is an "industrial curtilage" having constitutional protection equivalent to that of the curtilage of a private home. Dow further contends that any aerial photography of this "industrial curtilage" intrudes upon its reasonable expectations of privacy. Plainly a business establishment or an industrial or commercial facility enjoys certain protections under the Fourth Amendment. See ; See v. City of Two lines of cases are relevant to the inquiry: the curtilage doctrine and the "open fields" doctrine. The curtilage area immediately surrounding a private house has long been given protection as a place where the occupants have a reasonable and legitimate expectation of privacy that society is prepared to accept. See As the curtilage doctrine evolved to protect much the same kind of privacy as that covering the interior of a structure, the contrasting "open fields" doctrine evolved as well. From Hester v. United to the Court has drawn a line as to what expectations are reasonable in the open areas beyond the curtilage of a dwelling: "open fields do not provide the setting for those intimate activities that the [Fourth] Amendment is intended to shelter from governmental interference or surveillance." Oliver, In Oliver, we held that "an individual may not legitimately demand privacy for activities out of doors in fields, except in the area *236 immediately surrounding the home." To fall within the "open fields" doctrine the area "need be neither `open' nor a `field' as those terms are used in common speech." Dow plainly has a reasonable, legitimate, and objective expectation of privacy within the interior of its covered buildings, and it is equally clear that expectation is one society is prepared to observe. E. g., See v. City of Moreover, it could hardly be expected that Dow would erect a huge cover over a 2,000-acre tract. In contending that its entire enclosed plant complex is an "industrial curtilage," Dow argues that its exposed manufacturing facilities are analogous to the curtilage surrounding a home because it has taken every possible step to bar access from ground level. The Court of Appeals held that whatever the limits of an "industrial curtilage" barring ground-level intrusions into Dow's private areas, the open areas exposed here were more analogous to "open fields" than to a curtilage for purposes of aerial -314. In Oliver, the Court described the curtilage of a dwelling as "the area to which extends the intimate activity associated with the `sanctity of a man's home and the privacies of life.' " ). See California v. The intimate activities associated with family privacy and the |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | v. The intimate activities associated with family privacy and the home and its curtilage simply do not reach the outdoor areas or spaces between structures and buildings of a manufacturing plant. Admittedly, Dow's enclosed plant complex, like the area in Oliver, does not fall precisely within the "open fields" doctrine. The area at issue here can perhaps be seen as falling somewhere between "open fields" and curtilage, but lacking some of the critical characteristics of both.[3] Dow's inner *237 manufacturing areas are elaborately secured to ensure they are not open or exposed to the public from the ground. Any actual physical entry by EPA into any enclosed area would raise significantly different questions, because "[t]he businessman, like the occupant of a residence, has a constitutional right to go about his business free from unreasonable official entries upon his private commercial property." See v. City of The narrow issue raised by Dow's claim of search and seizure, however, concerns aerial observation of a 2,000-acre outdoor manufacturing facility without physical entry.[4] We pointed out in that the Government has "greater latitude to conduct warrantless inspections of commercial property" because "the expectation of privacy that the owner of commercial property enjoys in such property differs significantly *238 from the sanctity accorded an individual's home." We emphasized that unlike a homeowner's interest in his dwelling, "[t]he interest of the owner of commercial property is not one in being free from any inspections." And with regard to regulatory inspections, we have held that "[w]hat is observable by the public is observable without a warrant, by the Government inspector as well." 436 U. S., Oliver recognized that in the open field context, "the public and police lawfully may survey lands from the air." Here, EPA was not employing some unique sensory device that, for example, could penetrate the walls of buildings and record conversations in Dow's plants, offices, or laboratories, but rather a conventional, albeit precise, commercial camera commonly used in mapmaking. The Government asserts it has not yet enlarged the photographs to any significant degree, but Dow points out that simple magnification permits identification of objects such as wires as small as 1/2-inch in diameter. It may well be, as the Government concedes, that surveillance of private property by using highly sophisticated surveillance equipment not generally available to the public, such as satellite technology, might be constitutionally proscribed absent a warrant. But the photographs here are not so revealing of intimate details as to raise constitutional concerns. Although they undoubtedly give EPA more detailed information than naked-eye views, they remain limited to an outline of |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | than naked-eye views, they remain limited to an outline of the facility's buildings and The mere fact that human vision is enhanced somewhat, at least to the degree here, does not give rise to constitutional problems.[5]*239 An electronic device to penetrate walls or windows so as to hear and record confidential discussions of chemical formulae or other trade secrets would raise very different and far more serious questions; other protections such as trade secret laws are available to protect commercial activities from private surveillance by competitors.[6] We conclude that the open areas of an industrial plant complex with numerous plant structures spread over an area of 2,000 acres are not analogous to the "curtilage" of a dwelling for purposes of aerial surveillance;[7] such an industrial complex is more comparable to an open field and as such it is open to the view and observation of persons in aircraft lawfully in the public airspace immediately above or sufficiently near the area for the reach of cameras. We hold that the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment. Affirmed. *240 JUSTICE POWELL, with whom JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE BLACKMUN join, concurring in part, and dissenting in part. The Fourth Amendment protects private citizens from arbitrary surveillance by their Government. For nearly 20 years, this Court has adhered to a standard that ensured that Fourth Amendment rights would retain their vitality as technology expanded the Government's capacity to commit unsuspected intrusions into private areas and activities. Today, in the context of administrative aerial photography of commercial premises, the Court retreats from that standard. It holds that the photography was not a Fourth Amendment "search" because it was not accompanied by a physical trespass and because the equipment used was not the most highly sophisticated form of technology available to the Government. Under this holding, the existence of an asserted privacy interest apparently will be decided solely by reference to the manner of surveillance used to intrude on that interest. Such an inquiry will not protect Fourth Amendment rights, but rather will permit their gradual decay as technology advances. I Since the 1890's, petitioner Dow Chemical Company (Dow) has been manufacturing chemicals at a facility in Midland, Michigan. Its complex covers 2,000 acres and contains a number of chemical process plants. Many of these are "open-air" plants, with reactor equipment, loading and storage facilities, transfer lines, and motors located in the open areas between buildings. Dow claims that the technology used in these plants constitutes confidential business information, |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | the technology used in these plants constitutes confidential business information, and that the design and configuration of the equipment located there reveal details of Dow's secret manufacturing processes.[1] *241 Short of erecting a roof over the Midland complex, Dow has, as the Court states, undertaken "elaborate" precautions to secure the facility from unwelcome intrusions. Ante, at 229. In fact, Dow appears to have done everything commercially feasible to protect the confidential business information and property located within the borders of the facility. Security measures include an 8-foot-high chain link fence completely surrounding the facility that is guarded by security personnel and monitored by closed-circuit television, alarm systems that are triggered by unauthorized entry into the facility, motion detectors that indicate movement of persons within restricted areas, a prohibition on use of camera equipment by anyone other than authorized Dow personnel, and a strict policy under which no photographs of the facility may be taken or released without prior management review and approval.[2] In addition to these precautions, the open-air plants were placed within the internal portion of the 2,000-acre complex to conceal them from the view of members of the public outside the perimeter fence. Dow's security program also includes procedures designed to protect the facility from aerial photography. Dow has instructed its employees that it is "concerned when other than commercial passenger flights pass over the plant property." App. 14. When "suspicious" overflights occur, such as where a plane makes several passes over the facility, employees try to obtain the plane's identification number and description. *242 Working with personnel from the State Police and local airports, Dow employees then locate the pilot to determine if he has photographed the facility. If Dow learns that he has done so, Dow takes steps to prevent dissemination of photographs that show details of its proprietary technology.[3] The controversy underlying this litigation arose out of the efforts of the Environmental Protection Agency (EPA) to check emissions from the power houses located within Dow's Midland complex for violations of federal air quality standards. After making one ground-level inspection with Dow's consent, and obtaining schematic drawings of the power houses from Dow, EPA requested Dow's permission to conduct a second inspection during which EPA proposed to photograph the facility. Dow objected to EPA's decision to take photographs and denied the request. EPA then informed Dow that it was considering obtaining a search warrant to gain entry to the plant. Inexplicably, EPA did not follow that procedure, but instead hired a private firm to take aerial photographs of the facility. Using a sophisticated aerial mapping camera,[4] |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | photographs of the facility. Using a sophisticated aerial mapping camera,[4] this firm took approximately 75 color photographs of various parts of *243 the plant. The District Court found that "some of the photographs taken from directly above the plant at 1,200 feet are capable of enlargement to a scale of 1 inch equals 20 feet or greater, without significant loss of detail or resolution. When enlarged in this manner, and viewed under magnification, it is possible to discern equipment, pipes, and power lines as small as 1/2 inch in diameter." Observation of these minute details is, as the District Court found, "a near physical impossibility" from anywhere "but directly above" the complex. Because of the complicated details captured in the photographs, the District Court concluded, "the camera saw a great deal more than the human eye could ever see," even if the observer was located directly above the facility.[5] Several weeks later, Dow learned about the EPA-authorized overflight from an independent source. Dow filed this lawsuit, alleging that the aerial photography was an unreasonable search under the Fourth Amendment and constituted an inspection technique outside the scope of EPA's authority under the Clean Air Act, 42 U.S. C. 7413, 7414.[6] The District Court upheld Dow's position on both issues and entered a permanent injunction restraining EPA from conducting future aerial surveillance and photography of the Midland facility. The Court of Appeals for the Sixth Circuit reversed. It concluded that, while Dow had a reasonable expectation of privacy with respect to *244 ground-level intrusion into the enclosed buildings within its facility, it did not have such an expectation with respect to aerial observation and photography.[7] The court also held that EPA's use of aerial photography did not exceed its authority under 114 of the Clean Air Act, 42 U.S. C. 7414. We granted certiorari to review both of these holdings. The Court rejects Dow's constitutional claim on the ground that "the taking of aerial photographs of an industrial plant complex from navigable airspace is not a search prohibited by the Fourth Amendment." Ante, at 239.[8] The Court does not explicitly reject application of the reasonable expectation of privacy standard of in this context; nor does it explain how its result squares with Katz and its progeny. Instead, the Court relies on questionable assertions concerning the manner of the surveillance, and on its conclusion that the Midland facility more closely resembles an "open field" than it does the "curtilage" of a private home. The Court's decision marks a drastic reduction in the Fourth Amendment protections previously afforded to private commercial premises under |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | Fourth Amendment protections previously afforded to private commercial premises under our decisions. Along with California v. ante, p. 207, also decided today, the decision may signal a significant retreat from the rationale of prior Fourth Amendment decisions. *245 II Fourth Amendment protection of privacy interests in business premises "is based upon societal expectations that have deep roots in the history of the Amendment." In we observed that the "particular offensiveness" of the general warrant and writ of assistance, so despised by the Framers of the Constitution, "was acutely felt by the merchants and businessmen whose premises and products were inspected" under their authority. Against that history, "it is untenable that the ban on warrantless searches was not intended to shield places of business as well as of residence." Our precedents therefore leave no doubt that proprietors of commercial premises, including corporations, have the right to conduct their business free from unreasonable official intrusion. See G. M. Leasing Corp. v. United ; See v. City of In the context of administrative inspections of business premises, the Court has recognized an exception to the Fourth Amendment rule that warrantless searches of property not accessible to members of the public are presumptively unreasonable. Since the interest of the owner of commercial property is "in being free from unreasonable intrusions onto his property by agents of the government," not in being free from any inspections whatsoever, the Court has held that "the assurance of regularity provided by a warrant may be unnecessary under certain inspection schemes." Thus, where Congress has made a reasonable determination that a system of warrantless inspections is necessary to enforce its regulatory purpose, and where "the federal regulatory presence is sufficiently comprehensive and defined that the owner of commercial property cannot help but be aware that his property will be subject to periodic inspections," *246 warrantless inspections may be permitted. This exception does not apply here. The Government does not contend, nor does the Court hold, that the Clean Air Act authorizes a warrantless inspection program that adequately protects the privacy interests of those whose premises are subject to inspection. Instead, the Court characterizes our decisions in this area simply as giving the Government " `greater latitude to conduct warrantless inspections of commercial property' " because privacy interests in such property differ significantly from privacy interests in the home. Ante, at 237 (citation omitted). This reasoning misunderstands the relevant precedents. The exception we have recognized for warrantless inspections, limited to pervasively regulated businesses, see ; United v. Biswell, ; Colonnade Catering Corp. v. United is not founded solely on the |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | Catering Corp. v. United is not founded solely on the differences between the premises occupied by such businesses and homes, or on a conclusion that administrative inspections do not intrude on protected privacy interests and therefore do not implicate Fourth Amendment concerns. Rather, the exception is based on a determination that the reasonable expectation of privacy that the owner of a business does enjoy may be adequately protected by the regulatory scheme itself. We have never held that warrantless intrusions on commercial property generally are acceptable under the Fourth Amendment. On the contrary, absent a sufficiently defined and regular program of warrantless inspections, the Fourth Amendment's warrant requirement is fully applicable in the commercial context. -315, 324; G. M. Leasing Corp. v. United ; See v. City of -546. III Since our decision in the question whether particular governmental conduct constitutes a *247 Fourth Amendment "search" has turned on whether that conduct intruded on a constitutionally protected expectation of privacy. ; United v. United District Court, In the context of governmental inspection of commercial property, the Court has relied on the standard of Katz to determine whether an inspection violated the Fourth Amendment rights of the owner of the property. See 315. Today, while purporting to consider the Fourth Amendment question raised here under the rubric of Katz, the Court's analysis of the issue ignores the heart of the Katz standard. A The Court correctly observes that Dow has an expectation of privacy in the buildings located on the Midland property and that society is prepared to recognize that expectation as reasonable. Ante, at 236. Similarly, in view of the numerous security measures protecting the entire Dow complex from intrusion on the ground, the Court properly concludes that Dow has a reasonable expectation in being free from such intrusion. Ante, at 236-237. Turning to the issue presented in this case, however, the Court erroneously states that the Fourth Amendment protects Dow only from "actual physical entry" by the Government "into any enclosed area." This statement simply repudiates Katz. The reasonable expectation of privacy standard was designed to ensure that the Fourth Amendment continues to protect privacy in an era when official surveillance can be accomplished without any physical penetration of or proximity to the area under inspection. Writing for the Court in Katz, Justice Stewart explained that Fourth Amendment protections would mean little in our modern world if the reach of the Amendment "turn[ed] upon the presence or absence of a physical intrusion into any given enclosure." 389 U.S., at Thus, the Court's observation that the aerial photography was not |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | Thus, the Court's observation that the aerial photography was not accompanied by a physical trespass is irrelevant to the analysis *248 of the Fourth Amendment issue raised here, just as it was irrelevant in Katz. Since physical trespass no longer functions as a reliable proxy for intrusion on privacy, it is necessary to determine if the surveillance, whatever its form, intruded on a reasonable expectation that a certain activity or area would remain private. B An expectation of privacy is reasonable for Fourth Amendment purposes if it is rooted in a "source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by Dow argues that, by enacting trade secret laws, society has recognized that it has a legitimate interest in preserving the privacy of the relevant portions of its open-air plants. As long as Dow takes reasonable steps to protect its secrets, the law should enforce its right against theft or disclosure of those secrets.[10] As discussed above, our cases holding that Fourth Amendment protections extend to business property have expressly relied on our society's historical understanding that owners *249 of such property have a legitimate interest in being free from unreasonable governmental inspection. 436 U. S., -313; see 466 U. S., n. 8. Moreover, despite the Court's misconception of the nature of Dow's argument concerning the laws protecting the trade secrets within its open-air plants,[11] Dow plainly is correct to argue that those laws constitute society's express determination that commercial entities have a legitimate interest in the privacy of certain kinds of property. Dow has taken every feasible step to protect information claimed to constitute trade secrets from the public and particularly from its competitors. Accordingly, Dow has a reasonable expectation of privacy in its commercial facility in the sense required by the Fourth Amendment. EPA's conduct in this case intruded on that expectation because the aerial photography captured information that Dow had taken reasonable steps to preserve as private. C In this case, the Court does not claim that Dow's expectation of privacy is unreasonable because members of the public fly in airplanes. Whatever the merits of this position in California v. ante, p. 207, it is inapplicable here, for it is not the case that "[a]ny member of the public flying in this airspace who cared to glance down" could have obtained the information captured by the aerial photography of Dow's facility. California v. ante, at 213. As the District Court expressly found, the camera used to photograph the facility "saw a |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | found, the camera used to photograph the facility "saw a great deal more than the human eye could *250 ever see."[12] 536 F. Supp., See and n. 5. Thus, the possibility of casual observation by passengers on commercial or private aircraft provides no support for the Court's rejection of Dow's privacy interests. The Court nevertheless asserts that Dow has no constitutionally protected privacy interests in its open-air facility because the facility more closely resembles an "open field" than a "curtilage." Of course, the Dow facility resembles neither. The purpose of the curtilage doctrine is to identify the limited outdoor area closely associated with a home. See The doctrine is irrelevant here since Dow makes no argument that its privacy interests are equivalent to those in the home. Moreover, the curtilage doctrine has never been held to constitute a limit on Fourth Amendment protection. Yet, the Court applies the doctrine, which affords heightened protection to homeowners, in a manner that eviscerates the protection traditionally given to the owner of commercial property. The Court offers no convincing explanation for this application. Nor does the open field doctrine have a role to play in this case. Open fields, as we held in Oliver, are places in which people do not enjoy reasonable expectations of privacy and therefore are open to warrantless inspections from ground *251 and air alike. -181. Here, the Court concedes that Dow was constitutionally protected against warrantless intrusion by the Government on the ground. The complex bears no resemblance to an open field either in fact or within the meaning of our cases. The other basis for the Court's judgment assorted observations concerning the technology used to photograph Dow's plant is even less convincing. The Court notes that EPA did not use "some unique sensory device that, for example, could penetrate the walls of buildings and record conversations." Ante, at 238. Nor did EPA use "satellite technology" or another type of "equipment not generally available to the public." Instead, as the Court states, the surveillance was accomplished by using "a conventional, albeit precise, commercial camera commonly used in mapmaking." These observations shed no light on the antecedent question whether Dow had a reasonable expectation of privacy. Katz measures Fourth Amendment rights by reference to the privacy interests that a free society recognizes as reasonable, not by reference to the method of surveillance used in the particular case. If the Court's observations were to become the basis of a new Fourth Amendment standard that would replace the rule in Katz, privacy rights would be seriously at risk as technological |
Justice Burger | 1,986 | 12 | majority | Dow Chemical Co. v. United States | https://www.courtlistener.com/opinion/111667/dow-chemical-co-v-united-states/ | Katz, privacy rights would be seriously at risk as technological advances become generally disseminated and available in our society.[13] *252 IV I would reverse the decision of the Court of Appeals. EPA's aerial photography penetrated into a private commercial enclave, an area in which society has recognized that privacy interests legitimately may be claimed. The photographs captured highly confidential information that Dow had taken reasonable and objective steps to preserve as private. Since the Clean Air Act does not establish a defined and regular program of warrantless inspections, see EPA should have sought a warrant from a neutral judicial officer.[14] The Court's holding that the warrantless photography does not constitute an unreasonable search within the meaning of the Fourth Amendment is based on the absence of any physical trespass a theory disapproved in a line of cases beginning with the decision in E. g., United v. United District Court, These cases have provided a sensitive and reasonable means of preserving interests in privacy cherished by our society. The Court's decision today cannot be reconciled with our precedents or with the purpose of the Fourth Amendment. |
Justice Stevens | 2,006 | 16 | dissenting | Kansas v. Marsh | https://www.courtlistener.com/opinion/145632/kansas-v-marsh/ | Having joined Justice Blackmun's dissent from the plurality's opinion in I necessarily also subscribe to the views expressed by JUSTICE SOUTER today. I write separately for two reasons: to explain why agreement with Justice Blackmun's dissent is fully consistent with refusing to read Walton as "control[ling]," but see ante, at 5 (opinion of the Court), and to explain why the grant of certiorari in this case was a misuse of our discretion. Under Justice Blackmun's understanding of Arizona law, Walton did present exactly the same issue before us today. The Arizona statute at issue required the judge to impose death upon finding aggravating factors if " 'there are no mitigating circumstances sufficiently substantial to call for leniency.'" (quoting (E) (West 1989)). In Justice Black- mun's view, Arizona case law indicated "that a defendant's mitigating evidence will be deemed 'sufficiently substan- tial to call for leniency' only if the mitigating factors 'out- weigh' those in aggravation." Accord- ingly, Justice Blackmun believed that we confronted the constitutionality of a statute that mandated death when the scales were evenly balanced. But Justice Blackmun never concluded that the plural- ity similarly read Arizona case law as "requir[ing] a capi- tal sentence in a case where aggravating and mitigating circumstances are evenly balanced." To the contrary, he observed that "the plurality does not even acknowledge that this is the dispositive question." Because Justice Blackmun did not read the plurality opinion as confronting the problem of equipoise that he believed Arizona law to present, my join of his dissent is consistent with my conclusion that stare decisis does not bind us today. As JUSTICE SOUTER explains, post, at 2, n. 1, the Walton plurality painstakingly avoided an express endorsement of a rule that allows a prosecutor to argue, and allows a judge to instruct the jury, that if the scales are evenly balanced when the choice is between life and death, the law requires the more severe penalty. There is a further difference between this case and Waltonone that should have kept us from granting certiorari in the first place. In Walton, the defendant petitioned for certiorari, and our grant enabled us to con- sider whether the Arizona Supreme Court had adequately protected his rights under the Federal Constitution. In this case, by contrast, the State of Kansas petitioned us to review a ruling of its own Supreme Court on the grounds that the Kansas court had granted more protection to a Kansas litigant than the Federal Constitution required. A policy of judicial restraint would allow the highest court of the State to be the final |
Justice Stevens | 2,006 | 16 | dissenting | Kansas v. Marsh | https://www.courtlistener.com/opinion/145632/kansas-v-marsh/ | the highest court of the State to be the final decisionmaker in a case of this kind. See Brigham City v. Stuart, 547 U. S. (2006) (STEVENS, J., concurring) (slip op., at 3). There is a remarkable similarity between the decision to grant certiorari in this case and our comparable decision in In Ramos, we reviewed a decision of the California Supreme Court that had invalidated a standard jury instruction concern- ing the Governor's power to commute life without parole sentencesan instruction that was unique to California. By a vote of 5 to 4, the Court reversed the judgment of the state court, concludingsomewhat ironicallythat "the wisdom of the decision to permit juror consideration of possible commutation is best left to the States." In response I asked, as I do again today, "what harm would have been done to the administration of justice by state courts if the [Kansas] court had been left undis- turbed in its determination[?]" "If it were true that this instruction may make the difference be- tween life and death in a case in which the scales are otherwise evenly balanced, that is a reason why the in- struction should not be givennot a reason for giving it." "No matter how trivial the impact of the instruction may be, it is fundamentally wrong for the presiding judge at the trialwho should personify the evenhanded ad- ministration of justiceto tell the jury, indirectly to be sure, that doubt concerning the proper penalty should be resolved in favor of [death]." As in Ramos, in this case "no rule of law commanded the Court to grant certiorari." Furthermore, "[n]o other State would have been required to follow the [Kansas] precedent if it had been permitted to stand. Nothing more than an interest in facilitating the imposi- tion of the death penalty in [Kansas] justified this Court's exercise of its discretion to review the judgment of the [Kansas] Supreme Court." And "[t]hat interest, in my opinion, is not sufficient to warrant this Court's review of the validity of a jury instruction when the wisdom of giving that instruction is plainly a matter that is best left to the States." [*] We decided Ramos on the same day as Prior to that time, "we had virtually no interest" in criminal cases where States sought to set aside the rulings of their own courts. Although in recent years the trend has been otherwise, I continue to hope "that a future Court will recognize the error of this allocation of resources," and return to our older and better practice of restraint. |
Justice Rehnquist | 2,003 | 19 | majority | Janette Price, Warden v. Duyonn Andre Vincent | https://www.courtlistener.com/opinion/127895/janette-price-warden-v-duyonn-andre-vincent/ | The United States Court of Appeals for the Sixth Circuit granted habeas relief to respondent Duyonn Andre after concluding that the Double Jeopardy Clause of the Fifth Amendment, as applied to the States through the Fourteenth Amendment, barred his conviction for firstdegree murder. Because this decision exceeds the limits imposed on federal habeas review by 28 U.S. C. we granted the petition for certiorari, and now reverse. 2 * In an altercation between two groups of youths in front of a high school in Flint, Michigan, Markeis Jones was shot and killed. Respondent was arrested in connection with the shooting and was charged with open murder. At the close of the prosecution's case in chief and outside the hearing of the jury, defense counsel moved for a directed verdict of acquittal as to first-degree murder, arguing that there was insufficient evidence of premeditation and deliberation. The trial judge stated: 3 "`[M]y impression at this time is that there's not been shown premeditation or planning in the, in the alleged slaying. That what we have at the very best is Second Degree Murder. I think that Second Degree Murder is an appropriate charge as to the defendants. Okay.'" 4 Before court adjourned, the prosecutor asked to make a brief statement regarding first-degree murder the following morning. The trial judge agreed to hear it. When the prosecution made the statement, however, defense counsel objected. The defense argued that the court had granted its motion for a directed verdict as to first-degree murder the previous day, and that further prosecution on that charge would violate the Double Jeopardy Clause. The judge responded, "`Oh, I granted a motion but I have not directed a verdict.'" He noted that the jury had not been informed of his statements, and said that he would reserve a ruling on the matter. Subsequently, he decided to permit the charge of first-degree murder to be submitted to the jury. The jury convicted respondent of first-degree murder, and respondent appealed. The Michigan Court of Appeals reversed, concluding that the trial judge had directed a verdict on the charge and that the Double Jeopardy Clause prevented respondent's prosecution for firstdegree murder. The Michigan Supreme Court reversed. It noted that "a judge's characterization of a ruling and the form of the ruling may not be controlling" for purposes of determining whether a ruling terminated jeopardy. The State Supreme Court then reviewed the context and substance of the trial judge's comments, and concluded that the comments were not sufficiently final to constitute a judgment of acquittal terminating jeopardy. After the Michigan Supreme Court's |
Justice Rehnquist | 2,003 | 19 | majority | Janette Price, Warden v. Duyonn Andre Vincent | https://www.courtlistener.com/opinion/127895/janette-price-warden-v-duyonn-andre-vincent/ | judgment of acquittal terminating jeopardy. After the Michigan Supreme Court's decision, respondent discovered that the Clerk had made the following entry on the docket sheet: " `Motions by all atts for directed verdict. Court amended c[oun]t: open murder to 2nd degree murder.'" ; see also Tr. of Oral Arg. 7. Respondent moved the State Supreme Court to reconsider its judgment in light of this statement. The motion was denied without opinion. Judgt. order reported at 7 Respondent sought a writ of habeas corpus from the United States District Court for the Eastern District of Michigan. That court determined that respondent's prosecution for first-degree murder violated the Double Jeopardy Clause, and it granted his petition. App. to Pet. for Cert. 78a. The United States Court of Appeals for the Sixth Circuit affirmed, and this petition ensued. II 8 A habeas petitioner whose claim was adjudicated on the merits in state court is not entitled to relief in federal court unless he meets the requirements of 28 U.S. C. The double jeopardy claim in respondent's habeas petition arises out of the same set of facts upon which he based his direct appeal, and the State Supreme Court's holding that no double jeopardy violation occurred therefore constituted an adjudication of this claim on the merits. Thus, under respondent is not entitled to relief unless he can demonstrate that the state court's adjudication of his claim: "() resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or 0 "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Although the Court of Appeals recited this it proceeded to evaluate respondent's claim de novo rather than through the lens of apparently because it "agree[d] with the district court that whether the state trial judge acquitted [respondent] of first-degree murder is a question of law and not one of fact." The Court of Appeals did not consider whether the Michigan Supreme Court's decision was "contrary to" or an "unreasonable application of" our clearly established precedents, or whether it was "based on an unreasonable determination of the facts." Instead, the Court of Appeals declared: 2 "`[W]e are not bound by the holding of the Michigan Supreme Court that the trial judge's statements did not constitute a directed verdict under Michigan law. Instead, we must examine the state trial judge's comments to determine whether he made a ruling which resolved the factual elements |
Justice Rehnquist | 2,003 | 19 | majority | Janette Price, Warden v. Duyonn Andre Vincent | https://www.courtlistener.com/opinion/127895/janette-price-warden-v-duyonn-andre-vincent/ | whether he made a ruling which resolved the factual elements of the first-degree murder charge.'" 3 The Court of Appeals then concluded that, in its judgment, the state trial court's actions "constituted a grant of an acquittal on the first-degree murder charge such that jeopardy attached," and affirmed. 4 This was error. As noted above, under it must be shown that the Michigan Supreme Court's decision was either contrary to, or an unreasonable application of, this Court's clearly established precedents, or was based upon an unreasonable determination of the facts. The parties do not dispute the underlying facts, and respondent is therefore entitled to habeas relief only if he can meet one of the two bases for relief provided in (). We will address these bases in turn. First, we have explained that a decision by a state court is "contrary to" our clearly established law if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." See also Here, the Michigan Supreme Court identified the applicable Supreme Court precedents, United and and "reaffirm[ed] the principles articulated" in those decisions. Moreover, the Michigan Supreme Court properly followed Martin by recognizing that the trial judge's characterization of his own ruling is not controlling for purposes of double jeopardy, and by inquiring into "`whether the ruling of the [trial] judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.'" 4 Mich., at N. W. 2d, at 33 (citing Martin ). Nowhere did the Michigan Supreme Court apply a legal contrary to those set forth in our cases. Nor did that court confront a set of facts materially indistinguishable from those presented in any of this Court's clearly established precedents. In Smalis and Martin unlike in the present case, the trial courts not only rendered statements of clarity and finality but also entered formal orders from which appeals were ; Second, respondent can satisfy if he can demonstrate that the Michigan Supreme Court's decision involved an "unreasonable application" of clearly established law. As we have explained, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the state-court decision applied [a Supreme Court case] incorrectly. See ; Rather, it is the habeas applicant's burden to show that the state court applied [that case] to the facts of his case |
Justice Rehnquist | 2,003 | 19 | majority | Janette Price, Warden v. Duyonn Andre Vincent | https://www.courtlistener.com/opinion/127895/janette-price-warden-v-duyonn-andre-vincent/ | court applied [that case] to the facts of his case in an objectively unreasonable manner." 7 Here, having recognized that, under Martin the trial judge's characterization of his own ruling was not controlling for purposes of double jeopardy, the court went on to examine the substance of the judge's actions, to determine whether "further proceedings would violate the defendant's double jeopardy rights." 4 Mich., at In doing so, the court noted the goal of the Double Jeopardy Clause to prevent against a second prosecution for the same offense after acquittal. n. ; see also Martin at ; The Michigan Supreme Court also considered Smalis, in which this Court stated: 8 "the Double Jeopardy Clause bars a postacquittal appeal by the prosecution not only when it might result in a second trial, but also if reversal would translate into `further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.'" 47 U.S., at 4-4 (quoting Martin at 70). Applying Martin and Smalis, the State Supreme Court concluded that the judge's comments simply were not sufficiently final as to terminate jeopardy. 4 Mich., at 20, ; n. ; N.W.2d, at 3 20 In reaching this conclusion, in addition to reviewing the context and substance of the trial judge's comments at length, the Michigan Supreme Court observed that "there was no formal judgment or order entered on the record." The Michigan Supreme Court noted that formal motions or rulings were not required to demonstrate finality as a matter of Michigan law, but cautioned that "the judgment must bear sufficient indicia of finality to survive an appeal." N.W.2d, at 3, n. The court listed factors that might be considered in evaluating finality as including "a clear statement in the record or a signed order," "an instruction to the jury that a charge or element of the charge has been dismissed by the judge," or "a docket entry." "[E]ach case," the court said, "will turn on its own particular circumstances." Even after the docket entry was brought to its attention, the State Supreme Court adhered to its original decision that, in this case, the trial judge's comments were not sufficiently final to terminate jeopardy. This was not an objectively unreasonable application of clearly established law as defined by this Court. Indeed, numerous other courts have refused to find double jeopardy violations under similar circumstances.2 Even if we agreed with the Court of Appeals that the Double Jeopardy Clause should be read to prevent continued prosecution of a defendant under these circumstances, it was at least reasonable |
Justice Rehnquist | 2,003 | 19 | majority | Janette Price, Warden v. Duyonn Andre Vincent | https://www.courtlistener.com/opinion/127895/janette-price-warden-v-duyonn-andre-vincent/ | a defendant under these circumstances, it was at least reasonable for the state court to conclude otherwise. 2 Because respondent did not meet the statutory requirements for habeas relief, the judgment of the Court of Appeals is reversed. 22 It is so ordered. Notes: The Michigan Supreme Court noted that the comments at issue were never discussed in front of the jury, 4 Mich., at 4-, n. N.W.2d, at 3, n. and that the jury was never discharged, at 2, n. n. Moreover, the State Supreme Court noted, no trial proceedings took place with respondent laboring under the mistaken impression that he was not facing the possibility of conviction for first-degree murder. at 4-, n. N.W.2d, at 3, n. 2 InUnited F.2d 4, 4 (82), for example, the Second Circuit held that double jeopardy did not bar continued prosecution on a charge when the judge withdrew an oral grant of a motion to dismiss a count "[w]here no judgment has been entered and there has been no dismissal of the jury." In United 203 F.3d 7 the Ninth Circuit found no double jeopardy violation where a trial judge orally granted a motion for acquittal, then agreed to consider an additional transcript. at 74. ("[T]here was no announcement of the court's decision to the jury, and the trial did not resume until" after the court had denied the defendant's motion). See also United 2 F.3d 087, 0 (CA 200) ("Byrne and LoRusso stand for the proposition that an oral grant of a Rule 2 motion outside of the jury's presence does not terminate jeopardy, inasmuch as a court is free to change its mind prior to the entry of judgment"); 24 A.2d (R. I. 87) on the grounds that in the case before it, "the jury remained impaneled to adjudicate lesser included charges, and that defendant was not faced with any threat of reprosecution beyond the jury already assembled to hear his case"); 4 Ore. App. 0, 4 P.2d 4, 0 |
Justice Burger | 1,974 | 12 | majority | Marshall v. United States | https://www.courtlistener.com/opinion/108901/marshall-v-united-states/ | We granted certiorari to consider petitioner's claim that the provisions of Title II of the Narcotic Addict Rehabilitation Act of 1966, 18 U.S. C. 4251-4255, deny due process and equal protection by excluding from discretionary rehabilitative commitment, in lieu of penal incarceration, addicts with two or more prior felony convictions. The Circuits are in apparent conflict on this question. See the opinion of the Court of Appeals in this case, sub nom. (CA9), and ; United ; United ; and cert. pending, No. 72-5539. (1) Petitioner, Robert Edward Marshall, pleaded guilty to an indictment charging him with entering a bank with intent to commit a felony, in violation of 18 U.S. C. 2113 (a). At sentencing, petitioner requested that he be considered for treatment as a narcotic addict pursuant to Tit. II of the Narcotic Addict Rehabilitation Act of *419 1966 (NARA). The sentencing judge, after noting petitioner's prior felony convictions for burglary, forgery, and possession of a firearm, concluded that the exclusion of persons with two prior convictions from the discretionary provisions of the Act as set forth in 18 U.S. C. 4251 (f) (4)[1] did not permit commitment under *420 NARA. Petitioner was sentenced to 10 years' imprisonment pursuant to 18 U.S. C. 4208 (a) (2), but the District Judge recommended that petitioner receive treatment for narcotics addiction while incarcerated.[2] Ten months after being sentenced, petitioner moved to vacate his sentence under 28 U.S. C. 2255 on the ground that the two-prior-felony exclusion of NARA under 4251 (f) (4) violates equal protection as embodied in the Due Process Clause of the Fifth Amendment. The District Judge took note of v. United but declined to follow that holding. The District Judge also noted that there was no showing, as in that petitioner's prior convictions and his drug addiction were related[3] and since his prior convictions did not relate to traffic in narcotics, the provisions *421 of 18 U.S. C. 4251 (f) (2) did not apply. The District Judge determined that, given the purposes of the statute, Congress had not acted arbitrarily in providing different disposition standards for convicted persons with records of prior felony convictions from those without such convictions, these classifications being related to eligibility for rehabilitative commitment under NARA. The Court of Appeals viewed petitioner's 2255 petition as a motion under Rule 35 of the Federal Rules of Criminal Procedure for correction of an illegal sentence, and held the statutory classification constitutionally permissible, noting its disagreement with the decisions in and United v. Viewing the Act in its entirety,[4] the Court of Appeals concluded that Congress expressly |
Justice Burger | 1,974 | 12 | majority | Marshall v. United States | https://www.courtlistener.com/opinion/108901/marshall-v-united-states/ | its entirety,[4] the Court of Appeals concluded that Congress expressly limited the reach of the Act to addicts most likely to be rehabilitated through treatment and provided an exclusion as to convicted persons having two or more prior convictions. Concluding there is no "fundamental right" to rehabilitation from narcotics addiction at public expense after conviction of a crime, and there being no "suspect" classification under the statutory scheme, the Court of Appeals considered the correct standard to be whether the statutory *422 classification bore "some relevance to the purpose for which the classification is made." ; The court reasoned that Congress adopted the challenged standards in an effort to restrict eligibility to those most likely to respond to treatment and held that Congress could not be said to have acted irrationally in so doing. The District Court's denial of petitioner's motion to vacate his sentence was affirmed, We granted certiorari, We agree with the District Court's and the Court of Appeals' reading of the statute and affirm. (2) Petitioner concedes that the concept of equal protection as embodied in the Due Process Clause of the Fifth Amendment, see does not require that all persons be dealt with identically, but rather that there be some "rational basis" for the statutory distinctions made, or that they "have some relevance to the purpose for which the classification is made." at ; See also ; He argues that no such nexus exists under the classification provided by the challenged statute. The broad purpose of Congress in enacting NARA, as set forth in the Act itself, was: "[T]hat certain persons charged with or convicted of violating Federal criminal laws, who are determined to be addicted to narcotic drugs, and likely to be rehabilitated through treatment, should, in lieu of prosecution or sentencing, be civilly committed for confinement and treatment designed to *423 effect their restoration to health, and return to society as useful members." 42 U.S. C. 3401. See also H. R. Rep. No. 1486, 89th Cong., 2d Sess., 7 ("to provide for the treatment and rehabilitation of narcotic addicts when they are charged with or convicted of offenses against the United "); S. Rep. No. 1667, 89th Cong., 2d Sess., 12 Congress recognized that some relationship between drug addiction and crime probably existed, and concluded that prosecution and imprisonment of all addicts, without more, would not cure addiction or retard the rising addiction rate, and that a rehabilitative rather than a purely penal aproach to the problem was called for. It was not the purpose of Congress, however, to make every addict eligible for |
Justice Burger | 1,974 | 12 | majority | Marshall v. United States | https://www.courtlistener.com/opinion/108901/marshall-v-united-states/ | purpose of Congress, however, to make every addict eligible for civil commitment simply by reason of addiction. The congressional intent in adopting the statutory exclusion based on prior convictions which is challenged here is somewhat less explicitly defined,[5] but the objectives emerge clearly when the Act is read as a whole. Having recognized some nexus between drug addiction and crime, Congress specifically sought to insure that any program aimed at providing for the treatment of drug addiction would not hinder *424 traditional efforts to deal effectively with the strictly criminal aspects of the problem.[6] The most explicit statement of congressional intent is found in the House Report: "The practical effect of the implementation of the law provided for in the bill, is that strict punishment can be meted out where required to the hardened criminal, while justice can be tempered with judgment and fairness in those cases where it is to the best interest of society and the individual that such a course be followed. "The definition of `eligible individual' as set forth in the bill insures that the persons considered as candidates for civil commitment will not include criminals charged with violent crimes or be those whose records disclose a history of serious crimes."[7] H. R. Rep. No. 1486, pp. 9-10. (Emphasis supplied.) Similarly, the Senate Report notes: "The bill contains sufficient safeguards to assure adequate protection of the general public against the addict who is or may be a hardened criminal, while providing the flexibility necessary to enable *425 Federal authorities to medically treat the addict who is capable of being cured and rehabilitated" S. Rep. No. 1667, p. 13.[8] It is quite clear that in adopting the two-prior-felony exclusion, Congress sought first, to exclude from NARA treatment those less likely to be rehabilitated by such treatment, and second, to exclude those whose records disclosed a "history of serious crimes." The question we are called upon to decide is whether Congress could rationally have assumed that a person who has committed two or more prior felonies and is an addict at the time sentence is to be imposed is likely to be less susceptible of rehabilitation by reason of his past record, thus posing a greater threat to society upon release. Congress' concern with susceptibility and suitability of multiple offenders to rehabilitative treatment can reasonably be said to derive from its belief that because of the nature of addiction treatment, one who had evidenced greater difficulty in conforming his behavior to societal rules and laws would himself be less likely to benefit from treatment. Additionally, such a person |
Justice Burger | 1,974 | 12 | majority | Marshall v. United States | https://www.courtlistener.com/opinion/108901/marshall-v-united-states/ | less likely to benefit from treatment. Additionally, such a person might also pose impediments to the successful treatment of others in the program. As testimony before both the House and *426 Senate committees revealed, the treatment process for narcotics addiction is an arduous and a delicate undertaking, particularly in the aftercare stage when the subject is released into an unstructured environment which requires from the addict strict obedience to the limitations of the prescribed regime and full cooperation in the rehabilitative efforts.[9] Additionally, there is no generally accepted medical view as to the efficacy of presently known therapeutic methods of treating addicts and the prospect for the successful rehabilitation of narcotics addicts thus remains shrouded in uncertainty. Indeed, even the premise that drug addiction is one of the significant root causes of crime is not without challenge. See generally D. Musto, The American Disease: Origins of Narcotic Control See also American Bar Association and American Medical Association, Joint Committee on Narcotic Drugs, Drug Addiction: Crime or Disease? As testimony before the Congress revealed, no evidence to date has demonstrated more than a speculative chance for the successful rehabilitation of narcotics addicts. H. R. Rep. No. 1486, at 51. S. Rep. No. 1667, at 14. The NARA program was therefore fundamentally experimental in nature. See 112 Cong. Rec. 11896-11901 The suggestion that there is "obscurity" in the holding of this Court in fails to take into account that when courts deal with problems in the administration of criminal law such as those related to drug addiction, alcoholism, *427 mental disease, and the like, they are necessarily confined to the existing limits of human knowledge in those areas. As MR. JUSTICE MARSHALL noted in Powell: "[T]he inescapable fact is that there is no agreement among members of the medical profession about what it means to say that `alcoholism' is a `disease.' One of the principal works in this field states that `alcoholism has too many definitions and disease has practically none.' " The holding in Powell was a candid acknowledgment that the medical uncertainties afford little basis for judicial responses in absolute terms. When Congress undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation, even assuming, arguendo, that judges with more direct exposure to the problem might make wiser choices. Accordingly, it would have been a permissible choice for Congress to permit discretionary inclusion in NARA programs of those whose prior offenses were determined to be addiction related or motivated. Such a discretion might appropriately |
Justice Burger | 1,974 | 12 | majority | Marshall v. United States | https://www.courtlistener.com/opinion/108901/marshall-v-united-states/ | be addiction related or motivated. Such a discretion might appropriately have been vested in the trial judge much in the manner in which he is now required to exercise his discretion under 4252 in determining whether the defendant is an addict who is likely to be rehabilitated through treatment.[10] That Congress has not yet chosen to so provide, however, does not render constitutionally impermissible its decision to limit treatment to those with less than two prior felony convictions. ; 428 Williams, ; ; It should be recognized that the classification selected by Congress is not one which is directed "against" any individual or category of persons, but rather it represents a policy choice in an experimental program made by that branch of Government vested with the power to make such choices. The Court has frequently noted that legislative classifications need not be perfect or ideal. The line drawn by Congress at two felonies, for example, might, with as much soundness, have been drawn instead at one, but this was for legislative, not judicial choice. ; Against this background, it cannot be said that it was unreasonable or irrational for Congress to act on the predicate reflected in the legislative history and explicitly stated in the exclusion provision of 4251 (f) (4), that a person with two or more prior felonies would be less likely to adjust and adhere to the disciplines and rigors of the treatment program[11] and hence is a less promising prospect for treatment than those with lesser criminal records. In addition, Congress might rationally have sought to exclude from NARA treatment centers those it thought might be potentially disruptive elements within the sensitive environment of a drug treatment program.[12] Nor *429 can Congress be said to have acted without reason in determining that an addict with multiple convictions was more "hardened" and thus a greater potential danger to society on early release than the addict who had committed one prior felony or none. Under NARA, Congress provided for comparatively lenient sentencing possibilities,[13] but in excluding addicts with two prior felonies, it sought to assure that in an essentially experimental program to which limited resources were allocated these features would not be exploited by persons who were viewed by Congress as primarily antisocial and only secondarily addicts.[14] In addition, since the fact of two prior felony convictions may be said to evidence a lesser susceptibility of deterrence, *430 the reduced level of deterrence implicit in the benign policy of Title II could reasonably be thought by Congress to create an unacceptable risk to society and thus require the |
Justice Stewart | 1,971 | 18 | majority | Usner v. Luckenbach Overseas Corp. | https://www.courtlistener.com/opinion/108234/usner-v-luckenbach-overseas-corp/ | The petitioner, a longshoreman employed by an independent stevedoring contractor, was injured while engaged with his fellow employees in loading cargo aboard *495 the S. S. Edgar F. Luckenbach. He brought this action for damages against the respondents, the owner and the charterer of the ship, in a federal district court, alleging that his injuries had been caused by the ship's unseaworthiness. In the course of pretrial proceedings the circumstances under which the petitioner had been injured were fully disclosed, and they are not in dispute. On the day in question the ship lay moored to a dock in New Orleans, Louisiana, receiving cargo from a barge positioned alongside. The loading operations were being performed by the petitioner and his fellow longshoremen under the direction of their employer. Some of the men were on the ship, operating the port winch and boom at the No. 2 hatch. The petitioner and others were on the barge, where their job was to "break out" the bundles of cargo by securing them to a sling attached to the fall each time it was lowered from the ship's boom by the winch operator. The loading operations had been proceeding in this manner for some time, until upon one occasion the winch operator did not lower the fall far enough. Finding the sling beyond his reach, the petitioner motioned to the flagman standing on the deck of the ship to direct the winch operator to lower the fall farther. The winch operator then lowered the fall, but he lowered it too far and too fast. The sling struck the petitioner, knocking him to the deck of the barge and causing his injuries. Neither before nor after this occurrence was any difficulty experienced with the winch, boom, fall, sling, or any other equipment or appurtenance of the ship or her cargo. The respondents moved for summary judgment in the District Court, upon the ground that a single negligent act by a fellow longshoreman could not render the ship unseaworthy. The District Court denied the motion, but granted the respondents leave to take an interlocutory *496 appeal under 28 U.S. C. 1292 (b).[1] The United States Court of Appeals for the Fifth Circuit allowed the appeal and, reversing the District Court, directed that the respondents' motion for summary judgment be granted. It was the appellate court's view that " `[i]nstant unseaworthiness' resulting from `operational negligence' of the stevedoring contractor is not a basis for recovery by an injured longshoreman." -986. We granted certiorari, because of a conflict among the circuits on the basic issue presented.[2] The development |
Justice Stewart | 1,971 | 18 | majority | Usner v. Luckenbach Overseas Corp. | https://www.courtlistener.com/opinion/108234/usner-v-luckenbach-overseas-corp/ | among the circuits on the basic issue presented.[2] The development in admiralty law of the doctrine of unseaworthiness as a predicate for a shipowner's liability for personal injuries or death has been fully chronicled elsewhere, and it would serve no useful purpose to repeat the details of that development here.[3] Suffice it to recall *497 that from its humble origin as a dictum in an obscure case in 1922,[4] the doctrine of liability based upon unseaworthiness has experienced a most extraordinary expansion in a series of cases decided by this Court over the last 25 years.[5] The Court's decisions in some of those cases have been severely questioned, by dissenting Justices and by others, on the basis of history, reason, and logic.[6] The present case, however, offers no occasion to re-examine any of our previous decisions. We may accept it as fully settled that a shipowner's liability for an unseaworthy vessel extends beyond the members of the crew and includes *498 a longshoreman like the petitioner.[7] We may accept it as settled, too, that the shipowner is liable though the unseaworthiness be transitory,[8] and though the injury be suffered elsewhere than aboard the ship.[9] But these propositions do not dispose of the case before us. For the question here goes to the very definition of what unseaworthiness is and what it is not. A major burden of the Court's decisions spelling out the nature and scope of the cause of action for unseaworthiness has been insistence upon the point that it is a remedy separate from, independent of, and additional to other claims against the shipowner, whether created by statute[10] or under general maritime law.[11] More specifically, the Court has repeatedly taken pains to point out that liability based upon unseaworthiness is wholly distinct from liability based upon negligence.[12] The reason, of course, is that unseaworthiness is a condition, and how that condition came into beingwhether by negligence or otherwiseis quite irrelevant to the owner's liability for personal injuries resulting from it. We had occasion to emphasize this basic distinction again in There the unseaworthy condition causing the plaintiff's injury *499 was a ship's rail made slippery by the presence of fish gurry and slime. The trial judge had instructed the jury that the shipowner could be held liable for this unseaworthy condition only upon a finding that the slime and gurry had been on the ship's rail for a time long enough for the respondent to have learned about it and to have removed it. The Court of Appeals affirmed the judgment for the defendant shipowner, holding that at |
Justice Stewart | 1,971 | 18 | majority | Usner v. Luckenbach Overseas Corp. | https://www.courtlistener.com/opinion/108234/usner-v-luckenbach-overseas-corp/ | affirmed the judgment for the defendant shipowner, holding that at least with respect to "an unseaworthy condition which arises only during the progress of the voyage," the shipowner's obligation "is merely to see that reasonable care is used under the circumstances incident to the correction of the newly arisen defect." We reversed the judgment, holding that the trial and appellate courts had been wrong in confusing liability for negligence with liability for unseaworthiness. What has evolved in our case law, we said, is the "complete divorcement of unseaworthiness liability from concepts of negligence." Trawler Racer involved the defective condition of a physical part of the ship itself. But our cases have held that the scope of unseaworthiness is by no means so limited. A vessel's condition of unseaworthiness might arise from any number of circumstances. Her gear might be defective,[13] her appurtenances in disrepair,[14] her crew unfit.[15] The number of men assigned to perform a shipboard task might be insufficient.[16] The method of loading her cargo, or the manner of its stowage, might be improper.[17] For any of these reasons, or others, a vessel might not be reasonably fit for her intended service. *500 What caused the petitioner's injuries in the present case, however, was not the condition of the ship, her appurtenances, her cargo, or her crew,[18] but the isolated, personal negligent act of the petitioner's fellow longshoreman. To hold that this individual act of negligence rendered the ship unseaworthy would be to subvert the fundamental distinction between unseaworthiness and negligence that we have so painstakingly and repeatedly emphasized in our decisions.[19] In Trawler Racer, there existed a condition of unseaworthiness, and we held it was error to require a finding of negligent conduct in order to hold the shipowner liable. The case before us presents the other side of the same coin. For it would be equally erroneous here, where no condition of unseaworthiness existed, to hold the shipowner liable for a third party's single and wholly unforeseeable act of negligence. The judgment of the Court of Appeals is affirmed. It is so ordered. *501 MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK and MR. |
Justice Powell | 1,985 | 17 | majority | Countyof Oneida v. Oneida Indian Nation of NY | https://www.courtlistener.com/opinion/111362/countyof-oneida-v-oneida-indian-nation-of-ny/ | [*] These cases present the question whether three Tribes of the Oneida ndians may bring a suit for damages for the occupation and use of tribal land allegedly conveyed unlawfully in 95. The Oneida ndian Nation of New York, the Oneida ndian Nation of Wisconsin, and the Oneida of the Thames Band Council (the Oneidas) instituted this suit in 70 against the Counties of Oneida and Madison, New York. The Oneidas alleged that their ancestors conveyed 100,000 acres to the State of New York under a 95 agreement that violated the Trade and ntercourse Act of 93 (Nonintercourse Act), and thus that the transaction was void. The Oneidas' complaint sought damages representing the fair rental value of that part of the land presently owned and occupied by the Counties of Oneida and Madison, for the period January 1, through December 31, 69. The United States District Court for the Northern District of New York initially dismissed the action on the ground that the complaint failed to state a claim arising under the laws of the United States. The United States Court of Appeals for the Second Circuit affirmed. Oneida ndian We then granted certiorari and reversed. Oneida ndian We held unanimously that, at least for jurisdictional purposes, the Oneidas stated a claim for possession under federal The case was remanded for trial. *230 On remand, the District Court trifurcated trial of the issues. n the first phase, the court found the counties liable to the Oneidas for wrongful possession of their lands. n the second phase, it awarded the Oneidas damages in the amount of $16,6, plus interest, representing the fair rental value of the land in question for the 2-year period specified in the complaint. Finally, the District Court held that the State of New York, a third-party defendant brought into the case by the counties, must indemnify the counties for the damages owed to the Oneidas. The Court of Appeals affirmed the trial court's rulings with respect to liability and indemnification. t remanded, however, for further proceedings on the amount of damages. The counties and the State petitioned for review of these rulings. Recognizing the importance of the Court of Appeals' decision not only for the Oneidas, but potentially for many eastern ndian land claims, we granted certiorari, to determine whether an ndian tribe may have a live cause of action for a violation of its possessory rights that occurred 5 years ago. We hold that the Court of Appeals correctly so ruled. The respondents in these cases are the direct descendants of members of the Oneida ndian |
Justice Powell | 1,985 | 17 | majority | Countyof Oneida v. Oneida Indian Nation of NY | https://www.courtlistener.com/opinion/111362/countyof-oneida-v-oneida-indian-nation-of-ny/ | are the direct descendants of members of the Oneida ndian Nation, one of the six nations of the roquois, the most powerful ndian Tribe in the Northeast at the time of the American Revolution. See B. The roquois in the American Revolution (hereinafter ). From time immemorial to shortly after the Revolution, the Oneidas inhabited what is now central New York State. Their aboriginal land was approximately six million acres, extending from the Pennsylvania border to the St. Lawrence River, from the shores of Lake Ontario to the western foothills of the Adirondack Mountains. See *231 Although most of the roquois sided with the British, the Oneidas actively supported the colonists in the Revolution. ; see also This assistance prevented the roquois from asserting a united effort against the colonists, and thus the Oneidas' support was of considerable aid. After the War, the United States recognized the importance of the Oneidas' role, and in the Treaty of Fort Stanwix, (Oct. 22, 84), the National Government promised that the Oneidas would be secure "in the possession of the lands on which they are settled." Within a short period of time, the United States twice reaffirmed this promise, in the Treaties of Fort Harmar, (Jan. 9, 89), and of Canandaigua, (Nov. 11, ).[1] During this period, the State of New York came under increasingly heavy pressure to open the Oneidas' land for settlement. Consequently, in 88, the State entered into a "treaty" with the ndians, in which it purchased the vast majority of the Oneidas' land. The Oneidas retained a reservation of about 300,000 acres, an area that, the parties stipulated below, included the land involved in this suit. n 90, at the urging of President Washington and Secretary of War Knox, Congress passed the first ndian Trade and ntercourse Act, ch. 33, See 4 American State Papers, ndian Affairs, Vol. 1, p. 53 ; F. Prucha, American ndian Policy in the Formative Years 43-44 (62). The Act prohibited the conveyance of ndian land except * where such conveyances were entered pursuant to the treaty power of the United States.[2] n 93, Congress passed a stronger, more detailed version of the Act, providing that "no purchase or grant of lands, or of any title or claim thereto, from any ndians or nation or tribe of ndians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution [and] in the presence, and with the approbation of the commissioner or commissioners of |
Justice Powell | 1,985 | 17 | majority | Countyof Oneida v. Oneida Indian Nation of NY | https://www.courtlistener.com/opinion/111362/countyof-oneida-v-oneida-indian-nation-of-ny/ | and with the approbation of the commissioner or commissioners of the United States" appointed to supervise such transactions. 8. Unlike the 90 version, the new statute included criminal penalties for violation of its terms. Despite Congress' clear policy that no person or entity should purchase ndian land without the acquiescence of the Federal Government, in 95 the State of New York began negotiations to buy the remainder of the Oneidas' land. When this fact came to the attention of Secretary of War Pickering, he warned Governor Clinton, and later Governor Jay, that New York was required by the Nonintercourse Act to request the appointment of federal commissioners to supervise any land transaction with the Oneidas. See -535. The State ignored these warnings, and in the summer of 95 entered into an agreement with the Oneidas whereby they conveyed virtually all of their remaining land to the State for annual cash payments. t is this transaction that is the basis of the Oneidas' complaint in this case. The District Court found that the 95 conveyance did not comply with the requirements of the Nonintercourse *233 Act. n particular, the court stated that "[t]he only finding permitted by the record is that no United States Commissioner or other official of the federal government was present at the trans" The petitioners did not dispute this finding on appeal. Rather, they argued that the Oneidas did not have a federal common-law cause of action for this violation. Even if such an action once existed, they contended that the Nonintercourse Act pre-empted it, and that the Oneidas could not maintain a private cause of action for violations of the Act. Additionally, they maintained that any such cause of action was time-barred or nonjusticiable, that any cause of action under the 93 Act had abated, and that the United States had ratified the conveyance. The Court of Appeals, with one judge dissenting, rejected these arguments. Petitioners renew these claims here; we also reject them and affirm the court's finding of liability. At the outset, we are faced with petitioner counties' contention that the Oneidas have no right of action for the violation of the 93 Act. Both the District Court and the Court of Appeals rejected this claim, finding that the Oneidas had the right to sue on two theories: first, a common-law right of action for unlawful possession; and second, an implied statutory cause of action under the Nonintercourse Act of 93. We need not reach the latter question as we think the ndians' common-law right to sue is firmly established. A Federal Common Law |
Justice Powell | 1,985 | 17 | majority | Countyof Oneida v. Oneida Indian Nation of NY | https://www.courtlistener.com/opinion/111362/countyof-oneida-v-oneida-indian-nation-of-ny/ | right to sue is firmly established. A Federal Common Law By the time of the Revolutionary War, several well-defined principles had been established governing the nature of a tribe's interest in its property and how those interests could be conveyed. t was accepted that ndian nations held *234 "aboriginal title" to lands they had inhabited from time immemorial. See Cohen, Original ndian Title, The "doctrine of discovery" provided, however, that discovering nations held fee title to these lands, subject to the ndians' right of occupancy and use. As a consequence, no one could purchase ndian land or otherwise terminate aboriginal title without the consent of the sovereign.[3]Oneida See Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of ndian Land: The Origins of the Eastern Land Claims, With the adoption of the Constitution, ndian relations became the exclusive province of federal Oneida at 670 ).[4] From the first ndian claims presented, this Court *235 recognized the aboriginal rights of the ndians to their lands. The Court spoke of the "unquestioned right" of the ndians to the exclusive possession of their lands, Cherokee and stated that the ndians' right of occupancy is "as sacred as the fee simple of the whites." This principle has been reaffirmed consistently. See also ; Johnson v. Mcntosh, ; ; ; ; Wall. 211 Thus, as we concluded in Oneida "the possessory right claimed [by the Oneidas] is a federal right to the lands at issue in this case." Numerous decisions of this Court prior to Oneida recognized at least implicitly that ndians have a federal commonlaw right to sue to enforce their aboriginal land rights.[5] n Johnson v. Mcntosh, the Court declared invalid two private purchases of ndian land that occurred in 73 and 75 without the Crown's consent. Subsequently in it was held: "That an action of ejectment could be maintained on an ndian right to occupancy and use, is not open to question. This is the result of the decision in Johnson v. Mcntosh." More recently, the Court held that ndians have a common-law right of action for an accounting of "all rents, issues and *236 profits" against trespassers on their land. United[6] Finally, the Court's opinion in Oneida implicitly assumed that the Oneidas could bring a common-law action to vindicate their aboriginal rights. Citing United we noted that the ndians' right of occupancy need not be based on treaty, statute, or other formal Government -669. We stated that "absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common |
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