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Zant v. Stephens

https://www.courtlistener.com/opinion/110702/zant-v-stephens/

or more statutory aggravating circumstances are found by the jury, the failure of one circumstance does not so taint the proceedings as to invalidate the other aggravating circumstance found and the sentence of death based thereon." cert. denied, Despite the clarity of the state rule we are asked to review, there is considerable uncertainty about the state-law premises *415 of that rule.[3] The Georgia Supreme Court has never explained the rationale for its position. It may be that implicit in the rule is a determination that multiple findings of statutory aggravating circumstances are superfluous, or a determination that the reviewing court may assume the role of the jury when the sentencing jury recommended the death penalty under legally erroneous instructions. In this Court, the Georgia Attorney General offered as his understanding the following construction of state law: The jury must first find whether one or more statutory aggravating circumstances *416 have been established beyond a reasonable doubt. The existence of one or more aggravating circumstances is a threshold finding that authorizes the jury to consider imposing the death penalty; it serves as a bridge that takes the jury from the general class of all murders to the narrower class of offenses the state legislature has determined warrant the death penalty. After making the finding that the death penalty is a possible punishment, the jury then makes a separate finding whether the death penalty should be imposed. It bases this finding "not upon the statutory aggravating circumstances but upon all the evidence before the jury in aggravation and mitigation of punishment which ha[s] been introduced at both phases of the trial." Brief for Petitioner 13. In view of the foregoing uncertainty, it would be premature to decide whether such determinations, or any of the others we might conceive as a basis for the Georgia Supreme Court's position, might undermine the confidence we expressed in that the Georgia capital-sentencing system, as we understood it then, would avoid the arbitrary and capricious imposition of the death penalty and would otherwise pass constitutional muster. Suffice it to say that the state-law premises of the Georgia Supreme Court's conclusion of state law are relevant to the constitutional issue at hand. The Georgia Supreme Court under certain circumstances will decide questions of state law upon certification from this Court. See Ga. Code 24-4536[4] We invoke that statute to certify the following question: What are the premises of state law that support the conclusion that the death sentence in this case is not impaired by the invalidity of *417 one of the statutory aggravating circumstances found by

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Butler v. Dexter

https://www.courtlistener.com/opinion/109425/butler-v-dexter/

This is an appeal under 28 U.S. C. 1253 from an order of a three-judge District Court enjoining the appellants from prosecuting the appellee on the felony charge that his motion picture projector is a "criminal instrument" under 16.01 of the Texas Penal Code.[1]*263 Since no substantial question about the constitutionality of 16.01 has been raised, we dismiss the appeal for want of jurisdiction in this Court.[2] The facts of this case are relatively simple. The appellee, Richard Dexter, ran the Fiesta Theatre in San Antonio, Tex., which in June and July 1974 was exhibiting the film "Deep Throat." On three[3] separate occasions, an officer of the San Antonio police force paid for admission, entered the theater, and viewed the film. The officer, on each occasion, then wrote out a "Motion for Adversary Hearing" to determine whether there was probable cause to seize the film for violating the Texas obscenity laws. Each time, a magistrate held a short "hearing" in the lobby of the theater, at which he heard the testimony of the police officer, then viewed the film. Each time, the magistrate then issued a warrant to seize the film and to seize the projector as a "criminal instrument" under 16.01 of the Texas Penal Code. Appellee was then arrested and charged with "commercial obscenity" in violation of Texas Penal Code, 43.23, and "use of a criminal instrument" in violation of 16.01. The charge of commercial obscenity is a Class B misdemeanor, carrying a fine not to exceed $1,000, confinement not to exceed 180 days, or both.[4] Appellee did not, according to the trial court, pursue any complaint about these charges in the federal court. He was brought to trial on these charges in the state courts and they are not in issue here. His challenge, rather, was against the prosecutor's charging him with violations of the criminal *264 instruments statute for his possession of ordinary 16-mm. movie projectors. Violation of that statute is a third-degree felony, and carries a penalty of from 2 to 10 years' confinement and a fine not to exceed $5,000.[5] Although the felony complaints were lodged and appellee was forced to post some $31,000 in bonds, these charges were never presented to the grand jury.[6] A "criminal instrument," for purposes of the Texas statute, is anything "specially designed, made, or adapted for the commission of an offense."[7] From an examination of the "clear language of the statute" and from an examination of the unofficial "practice commentary" to the statute, the District Court concluded that "[b]y no stretch of the imagination could this statute be

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per_curiam

Butler v. Dexter

https://www.courtlistener.com/opinion/109425/butler-v-dexter/

"[b]y no stretch of the imagination could this statute be used to cover the plaintiff's actions or the possession of an ordinary portable 16 millimeter motion picture projector with removable interchangeable reels."[8] From its conclusion as to the obvious inapplicability of the statute, and from the prosecutor's failure to present the charges to the grand jury, the District Court found that "[c]harging the plaintiff with a 16.01 violation cannot have been undertaken with any design to actually convict the plaintiff of the crime. Such a blatant use of an inappropriate statute, which bootstrapped the misdemeanor offense into a felony was effective in requiring *265 that bail for a felony offense be set, not once but several times. The authorities could not believe, however, that Dexter would ultimately be convicted."[9] Appellants present several contentions regarding the jurisdiction of the District Court and the correctness of its decision. We do not reach these questions, however, as we have concluded that we have no jurisdiction to consider this case on direct appeal. Jurisdiction is predicated on 28 U.S. C. 1253, granting the right of direct appeal from an order "granting an injunction in any civil action required by any Act of Congress to be heard and determined by a district court of three judges." Title 28 U.S. C. 2281 provides that "[a]n injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute shall not be granted upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges" Under this statute a three-judge court is required if "a complaint seeks to enjoin a state statute on substantial grounds of federal unconstitutionality, even though nonconstitutional grounds of attack are also alleged" Florida Lime However, in this case the District Court ruled that the actions of the appellants were not taken in the enforcement of the statute and thus no serious question about the constitutionality of the statute was presented. As noted above, the District Court found that the felony "criminal instruments" charges were made in bad faith and without any design actually to convict appellee on those charges. Rather, the felony charges were made as part of a pattern of harassment by the San *266 Antonio police designed to force appellee to stop exhibiting "Deep Throat." But the arrests and the charges were not made in any attempt to enforce 16.01.[10] Nor was the injunction granted on the ground that 16.01 was unconstitutional;

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per_curiam

Butler v. Dexter

https://www.courtlistener.com/opinion/109425/butler-v-dexter/

the injunction granted on the ground that 16.01 was unconstitutional; rather, it was granted on the ground that the local officials had acted unconstitutionally in using that statute as a pretext for arrest and the setting of felony bonds when they knew that the statute was inapplicable and that no conviction could ever be obtained. Since no substantial question concerning the constitutionality of 16.01 was presented to the District Court, a three-judge court was not required.[11] Cf. A somewhat better argument might be made that the prosecutor's actions were part of an effort to enforce the commercial obscenity statute, albeit in a somewhat irregular manner. However, it could not be contended that the District Court grounded its injunction in any way on the unconstitutionality of the commercial obscenity *267 statute; the constitutionality of that statute was not even considered in this case.[12] Since a three-judge court was not required in this case, the appeal should have been taken to the Court of Appeals for the Fifth Circuit. Since the time for appeal may have passed, we vacate the judgment and remand to the District Court so that it may enter a fresh decree from which a timely appeal can, if desired, be taken. ; It is so ordered.

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

Some years ago, the State of California prosecuted a man named John Kocak for rape. At a preliminary hear- ing, the State presented testimony from an analyst at the Cellmark Diagnostics Laboratory—the same facility used to generate DNA evidence in this case. The analyst had extracted DNA from a bloody sweatshirt found at the crime scene and then compared it to two control samples— one from Kocak and one from the victim. The analyst’s report identified a single match: As she explained on direct examination, the DNA found on the sweatshirt belonged to Kocak. But after undergoing cross- examination, the analyst realized she had made a mortify- ing error. She took the stand again, but this time to admit that the report listed the victim’s control sample as coming from Kocak, and Kocak’s as coming from the victim. So the DNA on the sweatshirt matched not Kocak, but the victim herself. See Tr. in No. SCD110465 (Super. Ct. San Diego Cty., Cal., Nov. 17, 1995), pp. 3–4 (“I’m a little hys- terical right now, but I think the two names should be switched”), online at http: //www.nlada.org/forensics/for_ lib/Documents/1037341561.0/JohnIvanKocak.pdf (as vis- ited June 15, 2012, and available in Clerk of Court’s case file). In trying Kocak, the State would have to look else- where for its evidence. 2 WILLIAMS v. ILLINOIS KAGAN, J., dissenting Our Constitution contains a mechanism for catching such errors—the Sixth Amendment’s Confrontation Clause. That Clause, and the Court’s recent cases inter- preting it, require that testimony against a criminal de- fendant be subject to cross-examination. And that com- mand applies with full force to forensic evidence of the kind involved in both the Kocak case and this one. In two decisions issued in the last three years, this Court held that if a prosecutor wants to introduce the results of fo- rensic testing into evidence, he must afford the defendant an opportunity to cross-examine an analyst responsible for the test. Forensic evidence is reliable only when properly produced, and the Confrontation Clause prescribes a par- ticular method for determining whether that has hap- pened. The Kocak incident illustrates how the Clause is designed to work: Once confronted, the analyst discovered and disclosed the error she had made. That error would probably not have come to light if the prosecutor had merely admitted the report into evidence or asked a third party to present its findings. Hence the genius of an 18th- century device as applied to 21st-century evidence: Cross- examination of the analyst is especially likely to reveal whether vials have been switched, samples contaminated, tests incompetently

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

reveal whether vials have been switched, samples contaminated, tests incompetently run, or results inaccurately recorded. Under our Confrontation Clause precedents, this is an open-and-shut case. The State of Illinois prosecuted Sandy Williams for rape based in part on a DNA profile created in Cellmark’s laboratory. Yet the State did not give Williams a chance to question the analyst who pro- duced that evidence. Instead, the prosecution introduced the results of Cellmark’s testing through an expert wit- ness who had no idea how they were generated. That approach—no less (perhaps more) than the confrontation- free methods of presenting forensic evidence we have formerly banned—deprived Williams of his Sixth Amend- ment right to “confron[t] the witnesses against him.” Cite as: 567 U. S. (2012) 3 KAGAN, J., dissenting The Court today disagrees, though it cannot settle on a reason why. JUSTICE ALITO, joined by three other Jus- tices, advances two theories—that the expert’s summary of the Cellmark report was not offered for its truth, and that the report is not the kind of statement triggering the Confrontation Clause’s protection. In the pages that follow, I call JUSTICE ALITO’s opinion “the plurality,” because that is the conventional term for it. But in all except its disposition, his opinion is a dissent: Five Jus- tices specifically reject every aspect of its reasoning and every paragraph of its explication. See ante, at 1 (THOMAS, J., concurring in judgment) (“I share the dis- sent’s view of the plurality’s flawed analysis”). JUSTICE THOMAS, for his part, contends that the Cellmark report is nontestimonial on a different rationale. But no other Justice joins his opinion or subscribes to the test he offers. That creates five votes to approve the admission of the Cellmark report, but not a single good explanation. The plurality’s first rationale endorses a prosecutorial dodge; its second relies on distinguishing indistinguishable foren- sic reports. JUSTICE THOMAS’s concurrence, though posit- ing an altogether different approach, suffers in the end from similar flaws. I would choose another path—to adhere to the simple rule established in our decisions, for the good reasons we have previously given. Because de- fendants like Williams have a constitutional right to con- front the witnesses against them, I respectfully dissent from the Court’s fractured decision. I Our modern Confrontation Clause doctrine began with About a quarter century earlier, we had interpreted the Clause to allow the admission of any out-of-court statement falling within a “firmly rooted hearsay exception” or carrying “particularized guarantees of trustworthiness.” Ohio v. 4 But in we concluded that our old approach was misguided. Drawing on historical research about the

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

old approach was misguided. Drawing on historical research about the Clause’s purposes, we held that the prosecution may not admit “testimonial statements of a witness who [does] not appear at trial unless he [is] unavailable to testify, and the defendant had a prior opportunity for cross-examination.” 541 U. S., 3–54. That holding has two aspects. First, the Con- frontation Clause applies only to out-of-court statements that are “testimonial.” Second, where the Clause applies, it guarantees to a defendant just what its name sug- gests—the opportunity to cross-examine the person who made the statement. See A few years later, we made clear that ’s rule reaches forensic reports. In the Commonwealth introduced a laboratory’s “ ‘certificates of analysis’ ” stating that a sub- stance seized from the defendant was cocaine. at 308. We held that the certificates fell within the Clause’s “ ‘core class of testimonial statements’ ” because they had a clear “evidentiary purpose”: They were “ ‘made under circumstances which would lead an objective witness reasonably to believe that [they] would be available for use at a later trial.’ ” at 310– (quoting 541 U. S., 1–52). Accordingly, we ruled, the defendant had a right to cross-examine the analysts who had authored them. In reaching that conclusion, we rejected the Commonwealth’s argument that the Confrontation Clause should not apply because the statements resulted from “ ‘neutral scientific testing,’ ” and so were presumptively The Clause, we noted, commands that “ ‘reliability be assessed in a particular manner’ ”—through “ ‘testing in the crucible of cross- examination.’ ” (quoting 541 U. S., at 61). Further, we doubted that the testing summarized in the certificates was “as neutral or as reliable” as the Cite as: 567 U. S. (2012) 5 KAGAN, J., dissenting Commonwealth suggested. Citing chapter and verse from various studies, we concluded that “[f]orensic evidence is not uniquely immune from the risk of manipulation” and ; see And just two years later (and just one year ago), we reiterated ’s analysis when faced with a State’s attempt to evade it. In Bullcoming v. New Mexico, 564 U.S. (2011), a forensic report showed the defend- ant’s blood-alcohol concentration to exceed the legal limit for drivers. The State tried to introduce that finding through the testimony of a person who worked at the laboratory but had not performed or observed the blood test or certified its results. We held that foreclosed that tactic. The report, we stated, resembled the certificates in in “all material respects,” 564 U. S., at (slip op., at 15): Both were signed docu- ments providing the results

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

at 15): Both were signed docu- ments providing the results of forensic testing designed to “ ‘prov[e] some fact’ in a criminal proceeding,” at (slip op., at 14) (quoting ). And the State’s resort to a “surrogate” witness, in place of the analyst who produced the report, did not satisfy the Confrontation Clause. Bullcoming, 564 U. S., at (slip op., at 12). Only the presence of “that particular scientist,” we reasoned, would enable Bullcoming’s counsel to ask “questions designed to reveal whether incompetence or dishonesty” had tainted the results. at (slip op., at 2, 12). Repeating the refrain of we held that “[t]he accused’s right is to be confronted with” the actual analyst, unless he is unavailable and the ac- cused “had an opportunity, pretrial, to cross-examine” him. Bullcoming, 564 U. S., at (slip op., at 2). This case is of a piece. The report at issue here shows a DNA profile produced by an analyst at Cellmark’s labora- tory, allegedly from a vaginal swab taken from a young woman, L. J., after she was raped. That report is identical to the one in Bullcoming (and ) in “all mate- 6 WILLIAMS v. ILLINOIS KAGAN, J., dissenting rial respects.” 564 U. S., at (slip op., at 15). Once again, the report was made to establish “ ‘some fact’ in a criminal proceeding”—here, the identity of L. J.’s attacker. at (slip op., at 14) (quoting 557 U. S., at 310); see infra, at 20. And once again, it details the results of forensic testing on evidence gathered by the police. Viewed side-by-side with the Bullcoming report, the Cellmark analysis has a comparable title; similarly describes the relevant samples, test methodology, and results; and likewise includes the signatures of laboratory officials. Compare Cellmark Diagnostics Report of Labor- atory Examination (Feb. 15, 2001), Lodging of Petitioner with App. in Bullcoming v. New Mexico, O. T. 2010, No. 09–10876, pp. 62–65. So under this Court’s prior analysis, the substance of the report could come into evidence only if Williams had a chance to cross-examine the responsible analyst. But that is not what happened. Instead, the prosecutor used Sandra Lambatos—a state-employed scientist who had not participated in the testing—as the conduit for this piece of evidence. Lambatos came to the stand after two other state analysts testified about forensic tests they had performed. One recounted how she had developed a DNA profile of Sandy Williams from a blood sample drawn after his arrest. And another told how he had confirmed the presence of (unidentified) semen on the vaginal swabs taken from L. J. All this

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

on the vaginal swabs taken from L. J. All this was by the book: Williams had an opportunity to cross-examine both witnesses about the tests they had run. But of course, the State still needed to supply the missing link—it had to show that DNA found in the semen on L. J.’s vaginal swabs matched Williams’s DNA. To fill that gap, the prosecutor could have called the analyst from Cellmark to testify about the DNA profile she had produced from the swabs. But instead, the State called Lambatos as an expert witness and had her testify that the semen on those swabs contained Sandy Wil- Cite as: 567 U. S. (2012) 7 KAGAN, J., dissenting liams’s DNA: “Q Was there a computer match generated of the male DNA profile found in semen from the vaginal swabs of [L. J.] to a male DNA profile that had been identified as having originated from Sandy Williams? “A Yes, there was. “Q Did you compare the semen from the vaginal swabs of [L. J.] to the male DNA profile from the blood of Sandy Williams? “A Yes, I did. “Q [I]s the semen identified in the vaginal swabs of [L. J.] consistent with having originated from Sandy Williams? “A Yes.” App. 56–57. And so it was Lambatos, rather than any Cellmark em- ployee, who informed the trier of fact that the testing of L. J.’s vaginal swabs had produced a male DNA profile implicating Williams. Have we not already decided this case? Lambatos’s testimony is functionally identical to the “surrogate testi- mony” that New Mexico proffered in Bullcoming, which did nothing to cure the problem identified in Melendez- Diaz (which, for its part, straightforwardly applied our decision in ). Like the surrogate witness in Bullcoming, Lambatos “could not convey what [the actual analyst] knew or observed about the events i.e., the particular test and testing process he employed.” Bull­ coming, 564 U. S., at (slip op., at 12). “Nor could such 8 WILLIAMS v. ILLINOIS KAGAN, J., dissenting surrogate testimony expose any lapses or lies” on the testing analyst’s part. Like the lawyers in Melendez- Diaz and Bullcoming, Williams’s attorney could not ask questions about that analyst’s “proficiency, the care he took in performing his work, and his veracity.” 564 U. S., at n. 7 (slip op., at 12, n. 7). He could not probe whether the analyst had tested the wrong vial, inverted the labels on the samples, committed some more technical error, or simply made up the results. See App. to Brief for Public Defender Service for the District of Columbia

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

Brief for Public Defender Service for the District of Columbia et al. as Amici Curiae 5a, 11a (describing mistakes and fraud at Cellmark’s laboratory). Indeed, Williams’s lawyer was even more hamstrung than Bullcoming’s. At least the surrogate witness in Bullcoming worked at the relevant laboratory and was familiar with its procedures. That is not true of Lambatos: She had no knowledge at all of Cellmark’s operations. Indeed, for all the record discloses, she may never have set foot in Cellmark’s laboratory. Under our case law, that is sufficient to resolve this case. “[W]hen the State elected to introduce” the sub- stance of Cellmark’s report into evidence, the analyst who generated that report “became a witness” whom Williams “had the right to confront.” Bullcoming, 564 U. S., at (slip op., at 13). As we stated just last year, “Our prece- dent[s] cannot sensibly be read any other way.” II The plurality’s primary argument to the contrary tries to exploit a limit to the Confrontation Clause recognized in “The Clause,” we cautioned there, “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” 541 U. S., –60, n. 9 (citing 414 (1985)). The Illinois Supreme Court relied on that statement in concluding that Lambatos’s testimony was permissible. On that court’s view, “Lambatos disclosed Cite as: 567 U. S. (2012) 9 KAGAN, J., dissenting the underlying facts from Cellmark’s report” not for their truth, but “for the limited purpose of explaining the basis for her [expert] opinion,” so that the factfinder could as- sess that opinion’s value. 939 N.E. 2d 268, 282 (2010). The plurality wraps itself in that holding, similarly asserting that Lambatos’s recitation of Cellmark’s findings, when viewed through the prism of state evidence law, was not introduced to establish “the truth of any matter concerning [the] Cellmark” report. Ante, at 16; see ante, at 2, 24–25. But five Justices agree, in two opinions reciting the same reasons, that this argument has no merit: Lambatos’s statements about Cellmark’s report went to its truth, and the State could not rely on her status as an expert to circumvent the Confrontation Clause’s requirements. See ante, at 2–8 (opinion of THOMAS, J.). To see why, start with the kind of case had in mind. In acknowledging the not-for-the-truth carveout from the Clause, the Court cited as exemplary. See 541 U. S., –60, n. 9. There, claimed that his stationhouse confession of murder was a sham: A police officer, he charged, had read aloud his alleged accomplice’s confession and forced him to repeat it. To help

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

accomplice’s confession and forced him to repeat it. To help rebut that defense, the State introduced the other confession into the record, so the jury could see how it differed from ’s. This Court rejected ’s Confrontation Clause claim because the State had offered the out-of-court statement not to prove “the truth of [the accomplice’s] assertions” about the murder, but only to disprove ’s claim of how the police elicited his con- fession. Otherwise said, the truth of the admitted statement was utterly immaterial; the only thing that mattered was that the statement (whether true or false) varied from ’s. The situation could not be more different when a wit- ness, expert or otherwise, repeats an out-of-court state- 10 WILLIAMS v. ILLINOIS KAGAN, J., dissenting ment as the basis for a conclusion, because the statement’s utility is then dependent on its truth. If the statement is true, then the conclusion based on it is probably true; if not, not. So to determine the validity of the witness’s conclusion, the factfinder must assess the truth of the out- of-court statement on which it relies. That is why the principal modern treatise on evidence variously calls the idea that such “basis evidence” comes in not for its truth, but only to help the factfinder evaluate an expert’s opin- ion “very weak,” “factually implausible,” “nonsense,” and “sheer fiction.” D. Kaye, D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence pp. 196–197 (2d ed. 2011); at 24 (Supp. 2012). “One can sym- pathize,” notes that treatise, “with a court’s desire to permit the disclosure of basis evidence that is quite prob- ably reliable, such as a routine analysis of a drug, but to pretend that it is not being introduced for the truth of its contents strains credibility.” at 198 (2d ed. 2011); see also, e.g., 128, (“The distinction between a statement offered for its truth and a statement offered to shed light on an expert’s opinion is not meaning- ful”). Unlike in admission of the out-of-court statement in this context has no purpose separate from its truth; the factfinder can do nothing with it except assess its truth and so the credibility of the conclusion it serves to buttress.1 —————— 1 In responding to this reasoning, the plurality confirms it. According to the plurality, basis evidence supports the “credibility of the expert’s opinion” by showing that he has relied on, and drawn logical inferences from, sound “factual premises.” Ante, at 24. Quite right. And that process involves assessing such premises’ truth: If they are, as the plurality puts it, “unsupported by other

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

they are, as the plurality puts it, “unsupported by other evidence in the record” or otherwise baseless, they will not “allay [a factfinder’s] fears” about an “expert’s reasoning.” Ante, at 24–25. I could not have said it any better. Cite as: 567 U. S. (2012) 11 KAGAN, J., dissenting Consider a prosaic example not involving scientific ex- perts. An eyewitness tells a police officer investigating an assault that the perpetrator had an unusual, star- shaped birthmark over his left eye. The officer arrests a person bearing that birthmark (let’s call him Starr) for committing the offense. And at trial, the officer takes the stand and recounts just what the eyewitness told him. Presumably the plurality would agree that such testimony violates the Confrontation Clause unless the eyewitness is unavailable and the defendant had a prior opportunity to cross-examine him. Now ask whether anything changes if the officer couches his testimony in the following way: “I concluded that Starr was the assailant because a reliable eyewitness told me that the assailant had a star-shaped birthmark and, look, Starr has one just like that.” Surely that framing would make no constitutional difference, even though the eyewitness’s statement now explains the basis for the officer’s conclusion. It remains the case that the prosecution is attempting to introduce a testimonial statement that has no relevance to the proceedings apart from its truth—and that the defendant cannot cross- examine the person who made it. Allowing the admission of this evidence would end-run the Confrontation Clause, and make a parody of its strictures. And that example, when dressed in scientific clothing, is no different from this case. The Cellmark report identified the rapist as having a particular DNA profile (think of it as the quintessential birthmark). The Confrontation Clause prevented the State from introducing that report into evidence except by calling to the stand the person who prepared it. See –; Bullcoming, 564 U. S., at (slip op., at 2). So the State tried another route—introducing the substance of the re- port as part and parcel of an expert witness’s conclusion. In effect, Lambatos testified (like the police officer above): “I concluded that Williams was the rapist because Cell- 12 WILLIAMS v. ILLINOIS KAGAN, J., dissenting mark, an accredited and trustworthy laboratory, says that the rapist has a particular DNA profile and, look, Williams has an identical one.” And here too, that form of testimony should change nothing. The use of the Cellmark statement remained bound up with its truth, and the statement came into evidence without any oppor- tunity for Williams to cross-examine the person

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

without any oppor- tunity for Williams to cross-examine the person who made it. So if the plurality were right, the State would have a ready method to bypass the Constitution (as much as in my hypothetical case); a wink and a nod, and the Confron- tation Clause would not pose a bar to forensic evidence. The plurality tries to make plausible its not-for-the- truth rationale by rewriting Lambatos’s testimony about the Cellmark report. According to the plurality, Lambatos merely “assumed” that Cellmark’s DNA profile came from L. J.’s vaginal swabs, accepting for the sake of argument the prosecutor’s premise. Ante, at 18. But that is incor- rect. Nothing in Lambatos’s testimony indicates that she was making an assumption or considering a hypothesis. To the contrary, Lambatos affirmed, without qualification, that the Cellmark report showed a “male DNA profile found in semen from the vaginal swabs of [L. J.].” App. 56. Had she done otherwise, this case would be different. There was nothing wrong with Lambatos’s testifying that two DNA profiles—the one shown in the Cellmark report and the one derived from Williams’s blood—matched each other; that was a straightforward application of Lamba- tos’s expertise. Similarly, Lambatos could have added that if the Cellmark report resulted from scientifically sound testing of L. J.’s vaginal swab, then it would link Williams to the assault. What Lambatos could not do was what she did: indicate that the Cellmark report was pro- duced in this way by saying that L. J.’s vaginal swab contained DNA matching Williams’s.2 By testifying in —————— 2 The plurality suggests that Lambatos’s testimony is merely a mod- Cite as: 567 U. S. (2012) 13 KAGAN, J., dissenting that manner, Lambatos became just like the surrogate witness in Bullcoming—a person knowing nothing about “the particular test and testing process,” but vouching for them regardless. 564 U. S., at (slip op., at 12). We have held that the Confrontation Clause requires some- thing more. The plurality also argues that Lambatos’s characteriza- tion of the Cellmark report did not violate the Confronta- tion Clause because the case “involve[d] a bench trial.” Ante, at 19 (emphasis deleted). I welcome the plurality’s concession that the Clause might forbid presenting Lam- batos’s statement to a jury, see ante, at 18–19; it indicates that the plurality realizes that her testimony went beyond an “assumption.” But the presence of a judge does not transform the constitutional question. In applying the Confrontation Clause, we have never before considered relevant the decisionmaker’s identity. See, e.g., v. —————— ern, streamlined way of answering hypothetical questions and therefore raises no constitutional

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

way of answering hypothetical questions and therefore raises no constitutional issue, see ante, at 2, 13–15; similarly, the plurality contends that the difference between what Lambatos said and what I would allow involves only “slightly revis[ing]” her testimony and so can be of no consequence, see ante, at 18, n. 3. But the statement “if X is true, then Y follows” differs materially—and constitutionally— from the statement “Y is true because X is true (according to Z).” The former statement is merely a logical proposition, whose validity the defendant can contest by questioning the speaker. And then, assum- ing the prosecutor tries to prove the statement’s premise through some other witness, the defendant can rebut that effort through cross- examination. By contrast, the latter statement as well contains a factual allegation (that X is true), which the defendant can only effec- tively challenge by confronting the person who made it (Z). That is why recognizing the difference between these two forms of testimony is not to insist on an archaism or a formality, but to ensure, in line with the Constitution, that defendants have the ability to confront their accus- ers. And if prosecutors can easily conform their conduct to that consti- tutional directive, as the plurality suggests, so much the better: I would not have thought it a ground of complaint that the Confrontation Clause, properly understood, manages to protect defendants without overly burdening the State. 14 And this case would be a poor place to begin. Lambatos’s description of the Cellmark report was offered for its truth because that is all such “basis evidence” can be offered for; as described earlier, the only way the factfinder could consider whether that statement supported her opinion (that the DNA on L. J.’s swabs came from Williams) was by assessing the statement’s truth. See at 9–12. That is so, as a simple matter of logic, whether the factfinder is a judge or a jury. And thus, in either case, admission of the state- ment, without the opportunity to cross-examine, violates the Confrontation Clause. See ante, at 3–4, n. 1 (opinion of THOMAS, J.). In saying that much, I do not doubt that a judge typi- cally will do better than a jury in excluding such inadmis- sible evidence from his decisionmaking process. Perhaps the judge did so here; perhaps, as the plurality thinks, he un- derstood that he could not consider Lambatos’s repre- sentation about the Cellmark report, and found that other, “circumstantial evidence” established “the source of the sample that Cellmark tested” and “the reliability of the Cellmark profile.” See

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

Cellmark tested” and “the reliability of the Cellmark profile.” See ante, at 22–23. Some indications are to the contrary: In delivering his verdict, the judge never referred to the circumstantial evidence the plurality marshals, but instead focused only on Lambatos’s testi- mony. See 4 Record JJJ151 (calling Lambatos “the best DNA witness I have ever heard” and referring to Williams as “the guy whose DNA, according to the evidence from the experts, is in the semen recovered from the victim’s vagina”). But I take the plurality’s point that when read “[i]n context” the judge’s statements might be “best under- stood” as meaning something other than what they appear to say. See ante, at 20, n. 6. Still, that point suggests only that the admission of Lambatos’s statement was harm- less—that the judge managed to put it out of mind. After all, whether a factfinder is confused by an error is a sepa- Cite as: 567 U. S. (2012) 15 KAGAN, J., dissenting rate question from whether an error has occurred. So the plurality’s argument does not answer the only question this case presents: whether a constitutional violation happened when Lambatos recited the Cellmark report’s findings.3 At bottom, the plurality’s not-for-the-truth rationale is a simple abdication to state-law labels. Although the utility of the Cellmark statement that Lambatos repeated logi- cally depended on its truth, the plurality thinks this case decided by an Illinois rule holding that the facts underly- ing an expert’s opinion are not admitted for that purpose. See ante, at 14–18; 175– 177, But we do not typically allow state law to define federal constitutional require- ments. And needless to say (or perhaps not), the Confron- —————— 3 The plurality asserts (without citation) that I am “reach[ing] the truly remarkable conclusion that the wording of Lambatos’ testimony confused the trial judge,” ante, at 19, and then spends three pages explaining why that conclusion is wrong, see ante, at 19–21. But the plurality is responding to an argument of its own imagining, because I reach no such conclusion. As I just stated, the trial judge might well have ignored Lambatos’s statement about the Cellmark report and relied on other evidence to conclude that “the Cellmark profile was derived from the sample taken from the victim,” ante, at 19. All I am saying is that the admission of that statement violated the Confronta- tion Clause even if the judge ultimately put it aside, because it came into evidence for nothing other than its truth. See at 9–12. Similarly, the plurality claims (still without citation) that I think the other evidence

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

claims (still without citation) that I think the other evidence about the Cellmark report insufficient, see ante, at 21. But once again, the plurality must be reading someone else’s opinion. I express no view on sufficiency of the evidence because it is irrelevant to the Confrontation Clause issue we took this case to decide. It is the plurality that wrongly links the two, spending another five pages trumpeting the strength of the Cellmark report, see ante, at 22–24, 32– 33. But the plurality cannot properly decide whether a Confrontation Clause violation occurred at Williams’s trial by determining that Williams was guilty. The American criminal justice system works the opposite way: determining guilt by holding trials in accord with consti- tutional requirements. 16 WILLIAMS v. ILLINOIS KAGAN, J., dissenting tation Clause is a constitutional rule like any other. As JUSTICE THOMAS observes, even before we did not allow the Clause’s scope to be “dictated by state or federal evidentiary rules.” See ante, at 2. Indeed, in we independently reviewed whether an out-of-court statement was introduced for its truth—the very question at issue in this case. See –416. And in we still more firmly disconnected the Confron- tation Clause inquiry from state evidence law, by overrul- ing an approach that looked in part to whether an out- of-court statement fell within a “ ‘firmly rooted hearsay exception.’ ” (quoting Roberts, 448 U. S., at ). That decision made clear that the Confrontation Clause’s protections are not coterminous with rules of evidence. So the plurality’s state-law-first approach would be an about-face. Still worse, that approach would allow prosecutors to do through subterfuge and indirection what we previously have held the Confrontation Clause prohibits. Imagine for a moment a poorly trained, incompetent, or dishonest laboratory analyst. (The analyst in Bullcoming, placed on unpaid leave for unknown reasons, might qualify.) Under our precedents, the prosecutor cannot avoid exposing that analyst to cross-examination simply by introducing his report. See 557 U. S., at Nor can the prosecutor escape that fate by offering the results through the testimony of another analyst from the laboratory. See Bullcoming, 564 U. S., at (slip op., at 2). But under the plurality’s approach, the prosecutor could choose the analyst-witness of his dreams (as the judge here said, “the best DNA witness I have ever heard”), offer her as an expert (she knows nothing about the test, but boasts im- pressive degrees), and have her provide testimony identi- cal to the best the actual tester might have given (“the DNA extracted from the vaginal swabs matched Sandy Williams’s”)—all so long as a

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

the vaginal swabs matched Sandy Williams’s”)—all so long as a state evidence rule says that Cite as: 567 U. S. (2012) 17 KAGAN, J., dissenting the purpose of the testimony is to enable the factfinder to assess the expert opinion’s basis. (And this tactic would not be confined to cases involving scientific evidence. As JUSTICE THOMAS points out, the prosecutor could similarly substitute experts for all kinds of people making out-of- court statements. See ante, at 7.) The plurality thus would countenance the Constitution’s circumvention. If the Confrontation Clause prevents the State from getting its evidence in through the front door, then the State could sneak it in through the back. What a neat trick—but really, what a way to run a criminal justice system. No wonder five Justices reject it. III The plurality also argues, as a “second, independent basis” for its decision, that the Cellmark report falls out- side the Confrontation Clause’s ambit because it is nontes- timonial. Ante, at 3. The plurality tries out a number of supporting theories, but all in vain: Each one either con- flicts with this Court’s precedents or misconstrues this case’s facts. JUSTICE THOMAS rejects the plurality’s views for similar reasons as I do, thus bringing to five the num- ber of Justices who repudiate the plurality’s understand- ing of what statements count as testimonial. See ante, at 1, 12–15. JUSTICE THOMAS, however, offers a rationale of his own for deciding that the Cellmark report is non- testimonial. I think his essay works no better. When all is said and done, the Cellmark report is a testimonial statement. A According to the plurality, we should declare the Cellmark report nontestimonial because “the use at trial of a DNA report prepared by a modern, accredited labora- tory ‘bears little if any resemblance to the historical prac- tices that the Confrontation Clause aimed to eliminate.’ ” Ante, at 33 (quoting Michigan v. Bryant, 562 U.S. 18 WILLIAMS v. ILLINOIS KAGAN, J., dissenting (2011) (THOMAS, J., concurring in judgment) (slip op., at 2)). But we just last year treated as testimonial a forensic report prepared by a “modern, accredited laboratory”; indeed, we declared that the report at issue “fell within the core class of testimonial statements” implicating the Confrontation Clause. Bullcoming, 564 U. S., at (slip op., at 16) (internal quotation marks omitted); see Brief for New Mexico Department of Health, Scientific Laboratory Division as Amicus Curiae in Bullcoming, O. T. 2010, No. 09–10786, p. 1 (discussing accreditation). And although the plurality is close, it is not quite ready (or able) to dispense with that

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

is not quite ready (or able) to dispense with that decision. See ante, at 29, n. 13 (“Expe- rience might yet show that the holdings in [Bullcoming and other post-] cases should be reconsidered”). So the plurality must explain: What could support a dis- tinction between the laboratory analysis there and the DNA test in this case?4 As its first stab, the plurality states that the Cellmark report was “not prepared for the primary purpose of accus- ing a targeted individual.” Ante, at 31. Where that test comes from is anyone’s guess. JUSTICE THOMAS rightly shows that it derives neither from the text nor from the —————— 4 JUSTICE BREYER does not attempt to distinguish our precedents, opting simply to adhere to “the dissenting view set forth in Melendez- Diaz and Bullcoming.” See ante, at 8 (concurring opinion). He princi- pally worries that under those cases, a State will have to call to the witness stand “[s]ix to twelve or more technicians” who have worked on a report. See ante, ; see also ante, at 3, 16–18. But none of our cases—including this one—has presented the question of how many analysts must testify about a given report. (That may suggest that in most cases a lead analyst is readily identifiable.) The problem in the cases—again, including this one—is that no analyst came forward to testify. In the event that some future case presents the multiple- technician issue, the Court can focus on “the broader ‘limits’ question” that troubles JUSTICE BREYER, ante, at 7. But the mere existence of that question is no reason to wrongly decide the case before us—which, it bears repeating, involved the testimony of not twelve or six or three or one, but zero Cellmark analysts. Cite as: 567 U. S. (2012) 19 KAGAN, J., dissenting history of the Confrontation Clause. See ante, at 14–15 (opinion concurring in judgment). And it has no basis in our precedents. We have previously asked whether a statement was made for the primary purpose of establish- ing “past events potentially relevant to later criminal prosecution”—in other words, for the purpose of providing evidence. ; see also Bullcoming, 564 U. S., at (slip op., at 14); Bryant, 562 U. S., at (slip op., at 14, 29); – ; –52. None of our cases has ever suggested that, in addition, the statement must be meant to accuse a previously identified individual; indeed, in we rejected a related argument that laboratory “analysts are not subject to confrontation be- cause they are not ‘accusatory’ witnesses.” 557 U. S., at 313. Nor does the plurality give

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

557 U. S., at 313. Nor does the plurality give any good reason for adopting an “accusation” test. The plurality apparently agrees with JUSTICE BREYER that prior to a suspect’s identification, it will be “unlikely that a particular researcher has a defendant-related motive to behave dishonestly.” Ante, at 12 (BREYER, J., concurring); see ante, at 31–32 (plurality opinion). But surely the typical problem with laboratory analyses—and the typical focus of cross-examination—has to do with careless or incompetent work, rather than with personal vendettas. And as to that predominant concern, it makes not a whit of difference whether, at the time of the laboratory test, the police already have a suspect.5 —————— 5 Neither can the plurality gain any purchase from the idea that a DNA profile is not “inherently inculpatory” because it “tends to excul- pate all but one of the more than 7 billion people in the world today.” Ante, at 3; see ante, at 32. All evidence shares this feature: the more inculpatory it is of a single person, the more exculpatory it is of the rest of the world. The one is but the flipside of the other. But no one has ever before suggested that this logical corollary provides a reason to ignore the Constitution’s efforts to ensure the reliability of evidence. 20 WILLIAMS v. ILLINOIS KAGAN, J., dissenting The plurality next attempts to invoke our precedents holding statements nontestimonial when made “to respond to an ‘ongoing emergency,’ ” rather than to create evidence for trial, Bryant, 562 U. S., at (slip op., at 11); here, the plurality insists, the Cellmark report’s purpose was “to catch a dangerous rapist who was still at large.” Ante, at 31. But that is to stretch both our “ongoing emergency” test and the facts of this case beyond all recognition. We have previously invoked that test to allow statements by a woman who was being assaulted and a man who had just been shot. In doing so, we stressed the “informal [and] harried” nature of the statements, Bryant, 562 U. S., at (slip op., at 31)—that they were made as, or “minutes” after, at (slip op., at 28), the events they described “actually happen[ed],” (emphasis deleted), by “frantic” victims of criminal attacks, ib to officers trying to figure out “what had occurred” and what threats remained, Bryant, 562 U. S., at (slip op., at 30) (internal quotation marks omitted). On their face, the decisions have nothing to say about laboratory ana- lysts conducting routine tests far away from a crime scene. And this case presents a peculiarly inapt set of

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

scene. And this case presents a peculiarly inapt set of facts for extending those precedents. Lambatos testified at trial that “all reports in this case were prepared for this crimi- nal investigation [a]nd for the purpose of the eventual litigation,” App. 82—in other words, for the purpose of producing evidence, not enabling emergency responders. And that testimony fits the relevant timeline. The police did not send the swabs to Cellmark until November 2008—nine months after L. J.’s rape—and did not receive the results for another four months. See at 30–34, 51– 52, 54. That is hardly the typical emergency response. Finally, the plurality offers a host of reasons for why reports like this one are reliable: “[T]here [i]s no prospect of fabrication,” ante, at 31 (internal quotation marks omitted); multiple technicians may “work on each DNA Cite as: 567 U. S. (2012) 21 KAGAN, J., dissenting profile,” ante, at 32; and “defects in a DNA profile may often be detected from the profile itself,” See also ante, at 10–14 (opinion of BREYER, J.). But once again: Been there, done that. In this Court re- jected identical arguments, noting extensive documenta- tion of “[s]erious deficiencies in the forensic evidence used in criminal trials.” 557 U. S., ; see at 4– 5; see also Bullcoming, 564 U. S., at n. 1 (slip op., at 4, n. 1) (citing similar errors in laboratory analysis); Brief for Public Defender Service for the District of Columbia et al. as Amici Curiae 13 (discussing “[s]ystemic problems,” such as sample contamination, sample switching, mislabeling, and fraud, at “ ‘flagship’ DNA labs”). Scientific testing is “technical,” to be sure, ante, at 1 (opinion of BREYER, J.); but it is only as reliable as the people who perform it. That is why a defendant may wish to ask the analyst a variety of questions: How much experience do you have? Have you ever made mistakes in the past? Did you test the right sample? Use the right procedures? Contaminate the sample in any way? Indeed, as scientific evidence plays a larger and larger role in criminal prosecutions, those inquiries will often be the most important in the case.6 —————— 6 Both the plurality and JUSTICE BREYER warn that if we require ana- lysts to testify, we will encourage prosecutors to forgo DNA evidence in favor of less reliable eyewitness testimony and so “increase the risk of convicting the innocent.” Ante, at 13 (BREYER, J., concurring); see ante, at 3–4 (plurality opinion). Neither opinion provides any evidence, even by way of anecdote, for that view, and I doubt any exists.

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

of anecdote, for that view, and I doubt any exists. DNA evi- dence is usually the prosecutor’s most powerful weapon, and a prosecu- tor is unlikely to relinquish it just because he must bring the right analyst to the stand. Consider what Lambatos told the factfinder here: The DNA in L. J.’s vaginal swabs matched Williams’s DNA and would match only “1 in 8.7 quadrillion black, 1 in 390 quadrillion white, or 1 in 109 quadrillion Hispanic unrelated individuals.” App. 56–57. No eyewitness testimony could replace that evidence. I note as well that the Innocence Network—a group particularly knowledgeable about the 22 WILLIAMS v. ILLINOIS KAGAN, J., dissenting And made yet a more fundamental point in response to claims of the über alles reliability of scien- tific evidence: It is not up to us to decide, ex ante, what evidence is trustworthy and what is not. See 557 U. S., at 317–318; see also Bullcoming, 564 U. S., at (slip op., at 11). That is because the Confrontation Clause prescribes its own “procedure for determining the reliability of testi- mony in criminal trials.” That procedure is cross-examination. And “[d]ispensing with [it] because testimony is obviously reliable is akin to dis- pensing with jury trial because a defendant is obviously guilty.” So the plurality’s second basis for denying Williams’s right of confrontation also fails. The plurality can find no reason consistent with our precedents for treating the Cellmark report as nontestimonial. That is because the report is, in every conceivable respect, a statement meant to serve as evidence in a potential criminal trial. And that simple fact should be sufficient to resolve the question. B JUSTICE THOMAS’s unique method of defining testimo- nial statements fares no better. On his view, the Con- frontation Clause “regulates only the use of statements bearing ‘indicia of solemnity.’ ” Ante, at 8 (quoting –837). And Cellmark’s report, he con- cludes, does not qualify because it is “neither a sworn nor a certified declaration of fact.” Ante, at 9. But JUSTICE THOMAS’s approach grants constitutional significance to minutia, in a way that can only undermine the Confronta- tion Clause’s protections. —————— kinds of evidence that produce erroneous convictions—disagrees with the plurality’s and JUSTICE BREYER’s view. It argues here that “[c]on- frontation of the analyst is essential to permit proper adversarial testing” and so to decrease the risk of convicting the innocent. Brief for the Innocence Network as Amicus Curiae 3, 7. Cite as: 567 U. S. (2012) 23 KAGAN, J., dissenting To see the point, start with precedent, because the Court rejected this same kind of

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

with precedent, because the Court rejected this same kind of argument, as applied to this same kind of document, at around this same time just last year. In Bullcoming, the State asserted that the forensic report at issue was nontestimonial because— unlike the report in —it was not sworn before a notary public. We responded that applying the Confrontation Clause only to a sworn forensic report “would make the right to confrontation easily erasable”— next time, the laboratory could file the selfsame report without the oath. 564 U. S., at (slip op., at 15). We then held, as noted earlier, that “[i]n all material re- spects,” the forensic report in Bullcoming matched the one in 564 U. S., at (slip op., at 15); see First, a law enforcement officer provided evidence to a state laboratory assisting in police investiga- tions. See 564 U. S., at (slip op., at 15). Second, the analyst tested the evidence and “prepared a certificate concerning the result[s].” Third, the certificate was “formalized in a signed document headed a ‘report.’ ” That was enough. Now compare that checklist of “material” features to the report in this case. The only differences are that Cellmark is a private laboratory under contract with the State (which no one thinks relevant), and that the report is not labeled a “certificate.” That amounts to (maybe) a nickel’s worth of difference: The similarities in form, function, and purpose dwarf the distinctions. See –6. Each report is an official and signed record of laboratory test results, meant to establish a certain set of facts in legal proceedings. Neither looks any more “formal” than the other; neither is any more formal than the other. See The variances are no more (probably less) than would be found if you compared different law schools’ transcripts or different companies’ cash flow statements or different 24 WILLIAMS v. ILLINOIS KAGAN, J., dissenting States’ birth certificates. The difference in labeling—a “certificate” in one case, a “report of laboratory examina- tion” in the other—is not of constitutional dimension. Indeed, JUSTICE THOMAS’s approach, if accepted, would turn the Confrontation Clause into a constitutional gee- gaw—nice for show, but of little value. The prosecution could avoid its demands by using the right kind of forms with the right kind of language. (It would not take long to devise the magic words and rules—principally, never call anything a “certificate.”)7 And still worse: The new con- ventions, precisely by making out-of-court statements less “solem[n],” ante, at 1, would also make them less relia- ble—and so turn the Confrontation Clause upside down. See 541 U.

Justice Kagan

dissenting

Williams v. Illinois

https://www.courtlistener.com/opinion/802772/williams-v-illinois/

so turn the Confrontation Clause upside down. See 541 U. S., 2–53, n. 3 (“We find it im- plausible that a provision which concededly condemned trial by sworn ex parte affidavit thought trial by unsworn ex parte affidavit perfectly OK”). It is not surprising that no other Member of the Court has adopted this position. To do so, as JUSTICE THOMAS rightly says of the plurality’s decision, would be to “diminis[h] the Confrontation Clause’s protection” in “the very cases in which the ac- cused should ‘enjoy the right to be confronted with the witnesses against him.’ ” Ante, at 16. IV Before today’s decision, a prosecutor wishing to admit the results of forensic testing had to produce the techni- cian responsible for the analysis. That was the result of not one, but two decisions this Court issued in the last three years. But that clear rule is clear no longer. The five Justices who control the outcome of today’s case agree —————— 7 JUSTICE THOMAS asserts there is no need to worry, because “the Confrontation Clause reaches bad-faith attempts to evade the formal- ized process.” Ante, at 10; see ante, at 9, n. 5. I hope he is right. But JUSTICE THOMAS provides scant guidance on how to conduct this novel inquiry into motive. Cite as: 567 U. S. (2012) 25 KAGAN, J., dissenting on very little. Among them, though, they can boast of two accomplishments. First, they have approved the introduc- tion of testimony at Williams’s trial that the Confrontation Clause, rightly understood, clearly prohibits. Second, they have left significant confusion in their wake. What comes out of four Justices’ desire to limit and Bullcoming in whatever way possible, combined with one Justice’s one-justice view of those holdings, is—to be frank—who knows what. Those decisions apparently no longer mean all that they say. Yet no one can tell in what way or to what extent they are altered because no pro- posed limitation commands the support of a majority. The better course in this case would have been simply to follow and Bullcoming. Precedent-based decisionmaking provides guidance to lower court judges and predictability to litigating parties. Today’s plurality and concurring opinions, and the uncertainty they sow, bring into relief that judicial method’s virtues. I would decide this case consistently with, and for the reasons stated by, and Bullcoming. And until a majority of this Court reverses or confines those decisions, I would understand them as continuing to govern, in every particular, the admission of forensic evidence. I respectfully dissent

Justice Marshall

majority

Scarborough v. United States

https://www.courtlistener.com/opinion/109672/scarborough-v-united-states/

Petitioner was convicted of possessing a firearm in violation of Title VII of the Omnibus Crime Control and Safe Streets *564 Act of 1968 (Omnibus Crime Control Act), 18 U.S. C. App. 1201-1203. The statute provides, in pertinent part: "Any person who— "(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony "and who receives, possesses, or transports in commerce or affecting commerce any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both." 18 U.S. C. App. 1202(a).[1] The issue in this case is whether proof that the possessed firearm previously traveled in interstate commerce is sufficient to satisfy the statutorily required nexus between the possession of a firearm by a convicted felon and commerce. I In 1972 petitioner pleaded guilty in the Circuit Court of Fairfax County, Va., to the felony of possession of narcotics with intent to distribute. A year later, in August 1973, law *565 enforcement officials, in the execution of a search warrant for narcotics, seized four firearms from petitioner's bedroom. Petitioner was subsequently charged with both receipt and possession of the four firearms in violation of 18 U.S. C. App. 1202 (a) (1). In a jury trial in the Eastern District of Virginia, the Government offered evidence to show that all of the seized weapons had traveled in interstate commerce. All the dates established for such interstate travel were prior to the date petitioner became a convicted felon.[2] The Government made no attempt to prove that the petitioner acquired these weapons after his conviction.[3] Holding such proof necessary for a receipt conviction, the judge, at the close of the Government's case, granted petitioner's motion for a judgment of acquittal on that part of the indictment charging receipt. Petitioner's defense to the possession charge was twofold. As a matter of fact, he contended that by the time of his conviction he no longer possessed the firearms. His claim was that, to avoid violating this statute, he had transferred these guns to his wife prior to pleading guilty to the narcotics felony. Secondly, he argued that, as a matter of law, proof that the *566 guns had at some time traveled in interstate commerce did not provide an adequate nexus between the possession and commerce. In furtherance of this defense, petitioner requested that the jury be instructed as follows: "In order for the defendant to be found guilty of the crime with which he is charged, it is incumbent upon the Government to demonstrate a

Justice Marshall

majority

Scarborough v. United States

https://www.courtlistener.com/opinion/109672/scarborough-v-united-states/

charged, it is incumbent upon the Government to demonstrate a nexus between the `possession' of the firearms and interstate commerce. For example, a person `possesses' in commerce or affecting commerce if at the time of the offense the firearms were moving interstate or on an interstate facility, or if the `possession' affected commerce. It is not enough that the Government merely show that the firearms at some time had travelled in interstate commerce." App. 12-13. The judge rejected this instruction. Instead he informed the jury: "The government may meet its burden of proving a connection between commerce and the possession of a firearm by a convicted felon if it is demonstrated that the firearm possessed by a convicted felon had previously travelled in interstate commerce. "It is not necessary that the government prove that the defendant purchased the gun in some state other than that where he was found with it or that he carried it across the state line, nor must the government prove who did purchase the gun." Petitioner was found guilty and he appealed. The Court of Appeals for the Fourth Circuit affirmed.[5] We affirm. II Our first encounter with Title VII of the Omnibus Crime Control Act came in United There we had to decide whether the statutory phrase "in commerce or affecting commerce" in 1202 (a) applied to "possesses" and "receives" as well as to "transports." We noted that the statute was not a model of clarity. On the one hand, we found "significant support" in the legislative history for the contention that the statute "reaches the mere possession of guns without any showing of an interstate commerce nexus" in individual cases. -346. On the other hand, we could not ignore Congress' inserting the phrase "in commerce or affecting commerce" in the statute. The phrase clearly modified "transport" *568 and we could find no sensible explanation for requiring a nexus only for transport. Faced with this ambiguity,[6] the Court adopted the narrower reading that the phrase modified all three offenses. We found this result dictated by two principles of statutory interpretation: First, that "ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity," and second, that "unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance," Since "[a]bsent proof of some interstate commerce nexus in each case 1202 (a) dramatically intrudes upon traditional state criminal jurisdiction," we were unwilling to conclude, without a "clearer statement of intention," ib that Congress meant to dispense entirely with a nexus requirement in individual cases. It was

Justice Marshall

majority

Scarborough v. United States

https://www.courtlistener.com/opinion/109672/scarborough-v-united-states/

entirely with a nexus requirement in individual cases. It was unnecessary in for us to decide what would constitute an adequate nexus with commerce as the Government had made no attempt to show any nexus at all. While we did suggest some possibilities,[7] the present case presents the first opportunity to focus on the question with the benefit of full briefing and argument. The Government's position is that to establish a nexus with interstate commerce it need prove only that the firearm possessed by the convicted felon traveled at some time in interstate commerce. The petitioner contends, however, that the nexus must be "contemporaneous" with the possession, that the statute proscribes "only crimes with a present connection to commerce." Brief for Petitioner 9. He suggests that at the time of the offense the possessor must be engaging *569 in commerce or must be carrying the gun at an interstate facility. Tr. of Oral Arg. 11. At oral argument he suggested an alternative theory—that one can be convicted for possession without any proof of a present connection with commerce so long as the firearm was acquired after conviction. In our effort to resolve the dispute, we turn first to the text of the statute. Petitioner contends that the meaning can be readily determined from the face of the statute, at least when it is contrasted with Title IV of the Omnibus Crime Control Act, another title dealing with gun control.[8] He points to one section of Title IV, 18 U.S. C. 922 (h), arguing, in reliance on our decision in that this section shows how Congress can, if it chooses, specify an offense based on firearms that have previously traveled in commerce. In 922 (h), Congress employed the present perfect tense, as it prohibited a convicted felon from receiving a firearm "which has been shipped or transported in interstate or foreign commerce." This choice of tense led us to conclude in Barrett that Congress clearly "denot[ed] an act that has been completed." Thus, petitioner argues, since Congress knows how to specify completed transactions, its failure to use that language in the present statute must mean that it wanted to reach only ongoing transactions. The essential difficulty with this argument is that it is not very meaningful to compare Title VII with Title IV. See Title VII was a last-minute amendment to the Omnibus Crime Control Act enacted hastily with little discussion and no hearings.[9] The statute, as we noted in *570 is not the product of model legislative deliberation or draftsmanship. Title IV, on the other hand, is a carefully constructed

Justice Marshall

majority

Scarborough v. United States

https://www.courtlistener.com/opinion/109672/scarborough-v-united-states/

Title IV, on the other hand, is a carefully constructed package of gun control legislation. It is obvious that the tenses used throughout Title IV were chosen with care. For example, in addition to the prohibition in 922 (h) on receipt by convicted felons, Congress also made it illegal in 922 (g) for such person to "ship or transport any firearm or ammunition in interstate or foreign commerce." In 922 (j), Congress made it unlawful for "any person to receive, conceal, store, barter, sell or dispose of any stolen firearm which is moving as, which is part of, or which constitutes, interstate or foreign commerce." And 922 (k) makes it illegal for "any person knowingly to transport, ship, or receive, in interstate or foreign commerce, any firearm which has had [its] serial number removed, obliterated or altered." In view of such fine nuances in the tenses employed in the statute, the Court could easily conclude in Barrett that "Congress knew the significance and meaning of the language it employed." The language it chose was "without ambiguity." "Had Congress intended to confine 922 (h) to direct interstate receipts, it would have so provided, just as it did in other sections of [Title IV]." In the present case, by contrast, Congress' choice of language was ambiguous at best. While it is true that Congress did not choose the precise language used in 922 (h) to indicate that a present nexus with commerce is not required, neither did it use the language of 922 (j) to indicate that the gun must have a contemporaneous connection with commerce at the time of the offense. Thus, while petitioner is correct *571 in nothing that Congress has the skills to be precise, the fact that it did not employ those skills here helps us not at all. While Congress' choice of tenses is not very revealing, its findings and its inclusion of the phrase "affecting commerce" are somewhat more helpful. In the findings at the beginning of Title VII, Congress expressly declared that "the receipt, possession, or transportation of a firearm by felons constitutes. a burden on commerce or threat affecting the free flow of commerce," 18 U.S. C. App. 1201 (1).[10] It then implemented those findings by prohibiting possessions "in commerce and affecting commerce." As we have previously observed, Congress is aware of the "distinction between legislation limited to activities `in commerce' and an assertion of its full Commerce Clause power so as to cover all activity substantially affecting interstate commerce." United ; see also Indeed, that awareness was explicitly demonstrated here. In arguing that

Justice Marshall

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Scarborough v. United States

https://www.courtlistener.com/opinion/109672/scarborough-v-united-states/

Indeed, that awareness was explicitly demonstrated here. In arguing that Congress could, *572 consistent with the Constitution, "outlaw the mere possession of weapons," Senator Long, in introducing Title VII, pointed to the fact that "many of the items and transactions reached by the broad swath of the Civil Rights Act of 1964 were reached by virtue of the power of Congress to regulate matters affecting commerce, not just to regulate interstate commerce itself." 114 Cong. Rec. 13868 (1968). He advised a similar reliance on the power to regulate matters affecting commerce and urged that "Congress simply [find] that the possession of these weapons by the wrong kind of people is either a burden on commerce or a threat that affects the free flow of commerce." While in we noted that we could not be sure that Congress meant to do away entirely with a nexus requirement, it does seem apparent that in implementing these findings by prohibiting both possessions in commerce and those affecting commerce, Congress must have meant more than to outlaw simply those possessions that occur in commerce or in interstate facilities. And we see no basis for contending that a weapon acquired after a conviction affects commerce differently from one acquired before and retained. The legislative history in its entirety, while brief, further supports the view that Congress sought to rule broadly—to keep guns out of the hands of those who have demonstrated that "they may not be trusted to possess a firearm without becoming a threat to society." 773. There is simply no indication of any concern with either the movement of the gun or the possessor or with the time of acquisition. In introducing the amendment, Senator Long stated: "I have prepared an amendment which I will offer at an appropriate time, simply setting forth the fact that anybody who has been convicted of a felony is not permitted to possess a firearm "It might be well to analyze, for a moment, the logic involved. When a man has been convicted of a felony, *573 unless—as this bill sets forth—he has been expressly pardoned by the President and the pardon states that the person is to be permitted to possess firearms in the future, that man would have no right to possess firearms. He would be punished criminally if he is found in possession of them. "It seems to me that this simply strikes at the possession of firearms by the wrong kind of people. It avoids the problem of imposing on an honest hardware store owner the burden of keeping a lot of records

Justice Marshall

majority

Scarborough v. United States

https://www.courtlistener.com/opinion/109672/scarborough-v-united-states/

store owner the burden of keeping a lot of records and trying to keep up with the ultimate disposition of weapons sold. It places the burden and the punishment on the kind of people who have no business possessing firearms in the event they come into possession of them." The purpose of the amendment was to complement Title IV. 774; see also Senator Long noted: "Of all the gun bills that have been suggested, debated, discussed and considered, none except this Title VII attempts to bar possession of a firearm from persons whose prior behaviors have established their violent tendencies. ". Under Title VII, every citizen could possess a gun until the commission of his first felony. Upon his conviction, however, Title VII would deny every assassin, murderer, thief and burglar of [sic] the right to possess a firearm in the future "Despite all that has been said about the need for controlling firearms in this Country, no other amendment heretofore offered would get at the Oswalds or the Galts. They are the types of people at which Title VII is aimed." 773-14774. *574 He proposed this amendment to remedy what he thought was an erroneous conception of the drafters of Title IV that there was "a constitutional doubt that the Federal Government could outlaw the mere possession of weapons." The intent to outlaw possession without regard to movement and to apply it to a case such as petitioner's could not have been more clearly revealed than in a colloquy between Senators Long and McClellan: "Mr. McClellan. I have not had an opportunity to study the amendment. The thought that occurred to me, as the Senator explained it, is that if a man had been in the penitentiary, had been a felon, and had been pardoned, without any condition in his pardon to which the able Senator referred, granting him the right to bear arms, could that man own a shotgun for the purpose of hunting? "Mr. Long of Louisiana. No, he could He could own it, but he could not possess it. "Mr. McClellan. I beg the Senator's pardon? "Mr. Long of Louisiana. This amendment does not seek to do anything about who owns a firearm. He could not carry it around; he could not have it. "Mr. McClellan. Could he have it in his home? "Mr. Long of Louisiana. No, he could " 774 It was after this colloquy that Senator McClellan suggested that the amendment be taken to conference for "further thought." While that appeared to be its destination, the House, after Senate passage of the bill,

Justice Marshall

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Scarborough v. United States

https://www.courtlistener.com/opinion/109672/scarborough-v-united-states/

its destination, the House, after Senate passage of the bill, defeated a motion to go to conference and adopted the entire Senate bill, including Title VII, without alteration. Title VII thus became law without modification. *575 It seems apparent from the foregoing that the purpose of Title VII was to proscribe mere possession but that there was some concern about the constitutionality of such a statute. It was that observed ambivalence that made us unwilling in to find the clear intent necessary to conclude that Congress meant to dispense with a nexus requirement entirely. However, we see no indication that Congress intended to require any more than the minimal nexus that the firearm have been, at some time, in interstate commerce.[11] In particular, we find no support for petitioner's theories. Initially, we note our difficulty in fully comprehending petitioner's conception of a nexus with commerce. In his view, if an individual purchases a gun before his conviction, the fact that the gun once traveled in commerce does not provide an adequate nexus. It is necessary, in addition, that the person also carry it in an interstate facility. If, however, one purchases the same gun from the same dealer one day after the conviction as opposed to one day before, somehow the nexus magically appears, regardless of whether the purchaser carries the gun in any particular place. Such an interpretation strains credulity. We find no evidence in either the language or the legislative history for such a construction.[12] *576 More significantly, these theories create serious loopholes in the congressional plan to "make it unlawful for a firearm to be in the possession of a convicted felon." 114 Cong. Rec. 14773 (1968). A person who obtained a firearm prior to his conviction can retain it forever so long as he is not caught with it in an interstate facility. Indeed, petitioner's interpretation allows an individual to go out in the period between his arrest and conviction and purchase and stockpile weapons with impunity. In addition, petitioner's theories would significantly impede enforcement efforts. Those who do acquire guns after their conviction obviously do so surreptitiously and, as petitioner concedes, Tr. of Oral Arg. 19, it is very difficult as a practical matter to prove that such possession began after the possessor's felony conviction. Petitioner responds that the Government's reading of the statute fails to give effect to all three terms of the statute— receive, possess, transport. He argues that someone guilty of receipt or transport will necessarily be guilty of possession and that, therefore, there was no need to include the other two

Justice Marshall

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Scarborough v. United States

https://www.courtlistener.com/opinion/109672/scarborough-v-united-states/

therefore, there was no need to include the other two offenses in the statute. While this contention is not frivolous,[13] the fact is that petitioner's theory is similarly vulnerable. By his proposed definitions, there are essentially only two crimes—receipt and transport. The possessor who acquires the weapon after his conviction is guilty of receipt and the one who is carrying the gun in commerce or at an interstate *577 facility presumably is guilty of transporting.[14] Thus, the definitions offered by both sides fail to give real substance to all three terms. The difference, however, is that the Government's definition captures the essence of Congress' intent, striking at the possession of weapons by people "who have no business possessing [them]." 114 Cong. Rec. 13869 (1968). Petitioner's version, on the other hand, fails completely to fulfill the congressional purpose. It virtually eliminates the one offense on which Congress focused in enacting the law. Finally, petitioner seeks to invoke the two principles of statutory construction relied on in —lenity in construing criminal statutes and caution where the federal-state balance is implicated. Petitioner, however, overlooks the fact that we did not turn to these guides in until we had concluded that "[a]fter `seizing every thing from which aid can be derived,' we are left with an ambiguous statute." The principles are applicable only when we are uncertain about the statute's meaning and are not to be used "in complete disregard of the purpose of the legislature." United Here, the intent of Congress is clear. We do not face the conflicting pull between the text and the history that confronted us in In this case, the history is unambiguous and the text consistent with it. Congress sought to reach possessions broadly, with little concern for when the nexus with commerce occurred. Indeed, it was a close question in whether 1202 (a) even required proof of any nexus at all in individual cases. The only reason we concluded it did was because it was not "plainly and unmistakably" clear that it did But there is no question that Congress intended no more than a minimal nexus requirement. *578 Since the District Court and the Court of Appeals employed the proper standard, we affirm the conviction of petitioner. It is so ordered. MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR.

Justice Blackmun

majority

United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

Chapter 75, subchapter A, of the Internal Revenue Code of 1954, as amended, 26 U.S. C. 7201-7241, is concerned with tax crimes. Sections 7201-7207, inclusive, which in the aggregate relate to attempts to evade or defeat tax, to failures to act, and to fraud, all include the word "willfully" in their respective contexts. Specifically, 7206 is a felony statute and reads: " 7206. Fraud and false statements. "Any person who— "(1) Declaration under penalties of perjury. "Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter "shall be guilty of a felony and, upon conviction thereof, shall be fined not more than $5,000, or imprisoned not more than 3 years, or both, together with the costs of prosecution." Section 7207 is a misdemeanor statuteC[1] and reads: "7207. Fraudulent returns, statements, or other documents. *348 "Any person who willfully delivers or discloses to the Secretary or his delegate any list, return, account, statement, or other document, known by him to be fraudulent or to be false as to any material matter, shall be fined not more than $1,000, or imprisoned not more than 1 year, or both." This case presents the issue of the meaning of the critical word "willfully" as it is employed in these two successive statutes. Is its meaning the same in each, or is the willfulness specified by the misdemeanor statute, 7207, of somewhat less degree than the felony willfulness specified by 7206? I Respondent, Cecil J. Bishop, was convicted by a jury on all three counts of an indictment charging him with felony violations of 7206 (1) with respect to his federal income tax returns for the calendar years 1963, 1964, and 1965. The Court of Appeals, holding that a lesser-included-offense instruction directed to the misdemeanor statute, 7207, was improperly refused by the trial judge, reversed the judgment of the District Court and remanded the case for a new trial. Since the meaning of "willfully," as used in the tax crime statutes, has divided the circuits,[2] we granted certiorari. *349 We conclude that it was proper and correct for the District Court to refuse the lesser-included-offense instruction. In our view, the word "willfully" has the same meaning in both statutes. Consequently, we reverse and remand so that the Court of Appeals may now proceed to consider the additional issues that court found it unnecessary to reach. II Mr. Bishop is a lawyer

Justice Blackmun

majority

United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

it unnecessary to reach. II Mr. Bishop is a lawyer who has practiced his profession in Sacramento, California, since 1951. During that period, he owned an interest in a walnut ranch he and his father operated. In his secretary, Louise, married his father. The father died, and thereafter respondent's stepmother managed the ranch. Respondent periodically sent checks to Louise. These were used to run the ranch, to pay principal on loans, and to make improvements. Louise maintained a record of ranch of expenditures and submitted an itemized list of these disbursements to respondent at the end of each calendar year. In his 1963 return respondent asserted as business deductions all amounts paid to Louise and, in addition, all the expenses Louise listed. This necessarily resulted in a double deduction for all ranch expenditures in 1963. Moreover, some of these expenditures were for repayment of loans and for other personal items that did not qualify as income tax deductions. In his 1964 and 1965 returns respondent similarly included nondeductible amounts among the ranch figures that were deducted. The aggregate amount of improper deductions taken by respondent for the three taxable years exceeded *350 $45,000. He enjoyed aggregate gross income for those years of about $70,000. The incorrectness of the returns as filed for the three years was not disputed at trial. Transcript of Trial 869-872, 1148. Neither is it disputed here. Brief for Respondent 4. III Section 7206 (1), the felony statute, is violated when one "[w]illfully makes and subscribes any return," under penalties of perjury, "which he does not believe to be true and correct as to every material matter." Respondent based his defense at trial on the ground that he was not aware of the double deductions asserted in 1963 or of the improper deductions taken in the three taxable years. He claimed that his law office secretary prepared the return schedules from his records and from the information furnished by Louise; he merely failed to check the returns for accuracy. Respondent requested lesser-included-offense instructions based on the misdemeanor statute, 7207. This tax misdemeanor is committed by one "who willfully delivers or discloses" to the Internal Revenue Service any return or document "known by him to be fraudulent or to be false as to any material matter." Respondent argued that the word "willfully" in the misdemeanor statute should be construed to require less scienter than the same word in the felony statute. App. 28. With the state of respondent's guilty knowledge in dispute, his proposed instructions would have allowed the jury to choose between a misdemeanor based on caprice

Justice Blackmun

majority

United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

the jury to choose between a misdemeanor based on caprice or careless disregard and a felony requiring evil purpose. The trial judge declined to give the requested instructions and, instead, gave an instruction only on the felony, requiring a finding by the jury that the defendant intended *351 "with evil motive or bad purpose either to disobey or to disregard the law." App. 24. After the guilty verdict on all counts was returned, respondent was sentenced to two years' imprisonment on each count, the sentences to run concurrently. The court, however, suspended all but 90 days of each sentence and placed respondent on probation for five years on condition that he pay a fine of $5,000. App. 31. IV The Court of Appeals relied upon and a series of its own cases,[3] particularly enunciating the proposition that the word "willfully" has a meaning in tax felony statutes that is more stringent than its meaning in tax misdemeanor statutes.[4] Our examination of these Ninth Circuit precedents in the light of this Court's decisions leads us to conclude that the Court of Appeals' opinion cannot be sustained by this asserted distinction between 7206 (1) and 7207. A. The Ninth Circuit rule appears to have been evolved from language in this Court's opinion in In the defendant requested an instruction to the effect that an affirmative act was necessary to constitute a willful attempt to evade or defeat a tax, within the meaning of 145 (b) of the Revenue Act of 1936, The trial court *352 refused the request. The Second Circuit affirmed. This Court reversed. We were concerned in with a felony statute, 145 (b), applying to one "who willfully attempts in any manner to evade or defeat any tax," and with a companion misdemeanor statute, 145 (a), applying to one who "willfully fails to pay such tax, make such return, keep such records, or supply such information, at the time or times required by law or regulations." These statutes were the predecessors of the current 7201 and 7203, respectively, of the 1954 Code. In distinguishing between the two offenses, the Court said: "The difference between willful failure to pay a tax when due, which is made a misdemeanor, and willful attempt to defeat and evade one, which is made a felony, is not easy to detect or define. Both must be willful, and willful, as we have said, is a word of many meanings, its construction often being influenced by its context. United It may well mean something more as applied to nonpayment of a tax than when applied to failure

Justice Blackmun

majority

United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

to nonpayment of a tax than when applied to failure to make a return. Mere voluntary and purposeful, as distinguished from accidental, omission to make a timely return might meet the test of willfulness. But in view of our traditional aversion to imprisonment for debt, we would not without the clearest manifestation of Congressional intent assume that mere knowing and intentional default in payment of a tax, where there had been no willful failure to disclose the liability, is intended to constitute a criminal offense of any degree. We would expect willfulness in such a case to include some element of evil motive and want of justification in view of all the financial circumstances of the taxpayer. "Had 145 (a) not included willful failure to pay a tax, it would have defined as misdemeanors generally *353 a failure to observe statutory duties to make timely returns, keep records, or supply information— duties imposed to facilitate administration of the Act even if, because of insufficient net income, there were no duty to pay a tax. It would then be a permissible and perhaps an appropriate construction of 145 (b) that it made felonies of the same willful omissions when there was the added element of duty to pay a tax. The definition of such nonpayment as a misdemeanor, we think, argues strongly against such an interpretation." -498. In Abdul the court considered an appeal by a taxpayer convicted of tax misdemeanors ( 2707 (b) of the 1939 Code and 7203 of the 1954 Code) based on failure to file but acquitted of tax felonies ( 2707 (c) of the 1939 Code and 7202 of the 1954 Code) based on failure to account for and pay withholding taxes. The defense was inability to pay. The trial judge instructed the jury that the term "wilful" in the misdemeanor counts meant, among other things, "capriciously or with a careless disregard whether one has the right so to act," whereas the same word in the felony counts meant "with knowledge of one's obligation to pay the taxes due and with intent to defraud the Government of that tax by any affirmative conduct." Relying on the Court of Appeals approved these instructions and concluded that "the word `wilful' as used in the misdemeanor statute means something less when applied to a failure to make a return than as applied to a felony non-payment of a tax. This being true, then the words used in the instruction defining `wilful' as relates to a misdemeanor adequately and clearly point up that difference." *354 Because of an error in

Justice Blackmun

majority

United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

point up that difference." *354 Because of an error in the cross-examination of Abdul. his conviction was reversed. On retrial, he was again convicted. He appealed, and the judgment was affirmed. When Abdul sought certiorari, the Solicitor General conceded that the sentence under one of the counts could not stand and undertook to say that the Government would present to the District Court a motion for correction of the sentence. Certiorari, accordingly, was denied. Two Justices would have granted the writ to review the correctness of the charge "regarding the requirement of willfulness." In the present case the Court of Appeals continued this Abdul distinction between willfulness in tax misdemeanor charges and willfulness in tax felony charges. Section 7207, it was said, requires only a showing of "unreasonable, capricious, or careless disregard for the truth or falsity of income tax returns filed," whereas 7206 (1) "requires proof of an evil motive and bad faith." The level of willfulness, thus, would create a disputed factual element that made appropriate a lesser-included-offense instruction. B. The decisions of this Court do not support the holding in Abdul, and implicitly they reject the approach taken by the Court of Appeals. In the Court -498, that Congress could have distinguished between the regulatory aspects of the tax system, which call for compliance regardless of financial status, and the revenue-collecting aspects, which may place demands on a taxpayer he cannot meet. Since the antecedent of 7203 (as does that section itself today) punished both failure to file and failure to pay as misdemeanors, the Court concluded that Congress had not drawn the line between felonies and misdemeanors on the basis of distinctions between the system's regulatory aspects and its revenue-collecting aspects. The reliance *355 in Abdul on that hypothetical statutory scheme, discussed by this Court in but found not in line with what Congress had actually done, was misplaced. Utilizing the unsupported Abdul distinction as a foundation. the Court of Appeals constructed the further general distinction between tax felonies and tax misdemeanors, a distinction also inconsistent with prior decisions of this Court. In a defendant was convicted of violating the antecedent of 7201, namely, 145 (b) of the 1939 Code, a felony statute identical, for present purposes, with the section of the same number in the Revenue Act of 1936 at issue in The defendant claimed that he was entitled to a lesser-included-offense instruction based on 3616 (a) of the 1939 Code, the antecedent of 7207. The Court rejected this contention, concluding that the two sections of the 1939 Code then "covered precisely the same ground."

Justice Blackmun

majority

United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

of the 1939 Code then "covered precisely the same ground." Implicit in this was the conclusion that the level of intent required for tax misdemeanors was not automatically lower than the level of intent required for tax felonies. Although the misdemeanor statute, 3616 (a), proffered by the defendant in Berra did not contain the word "willfully," the Berra facts were presented to the Court again in when the misdemeanor statutes there in issue, 7207 and 7203 of the 1954 Code, both contained the word "willfully."[5] In the Court rejected the argument *356 that a set of facts could exist that would satisfy the willfulness element in the 7207 misdemeanor but not in the 7201 felony: "Given petitioner's material misstatement which resulted in a tax deficiency, if, as the jury obviously found, petitioner's act was willful in the sense that he knew that he should have reported more income than he did for the year 1957, he was guilty of violating both 7201 and 7207. If his action was not willful, he was guilty of violating neither." The same analysis was applied to the requested lesser-included-offense instruction for 7203. The clear implication of the decision in is that the word "willfully" possesses the same meaning in 7201, 7203, and 7207. thus foreclosed the argument that the word "willfully" was to be given one meaning in the tax felony statutes and another meaning in the tax misdemeanor statutes. The thesis relied upon by the Court of Appeals, therefore, was incorrect. V It would be possible, of course, that the word "willfully" was intended by Congress to have a meaning in 7206 (1) different from its meaning in 7207, and we turn now to that possibility. We continue to recognize that context is important in the quest for the word's meaning. See United Here, as in the "legislative history of the section[s] contains nothing helpful on the question here at issue, and we must find the answer from the [sections themselves] and [their] context in the revenue laws."[6] 317 U. S., *357 at 495. We consider first, then, the sections themselves. A. Respondent argues that both 7206 (1) and 7207 apply to a fraudulent "return" and cover the same ground if the word "willfully" has the same meaning in both sections. Since "it would be unusual and we would not readily assume that Congress by the felony. meant no more than the same derelictions it had just defined as a misdemeanor," respondent concludes that Congress must have intended to require a more willful violation for the felony than for the misdemeanor. The critical

Justice Blackmun

majority

United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

violation for the felony than for the misdemeanor. The critical difficulty for respondent is that the two sections have substantially different express terms. The most obvious difference is that 7206 (1) applies only if the document "contains or is verified by a written declaration that it is made under the penalties of perjury." No equivalent requirement is present in 7207. Respondent recognizes this but then relies on the presence of perjury declarations on all federal income tax returns, a fact that effectively equalizes the sections where a federal tax return is at issue. See 26 U.S. C. 6065 (a).[7] This approach, however, is not persuasive for two reasons. First, the Secretary or his delegate has the power under 6065 (a) to provide that no perjury declaration is required. If he does so provide, then 7207 *358 immediately becomes operative in the area theretofore covered by 7206 (1). Second, the term "return" is not necessarily limited to a federal income tax return. A state or other nonfederal return could be intended and might not contain a perjury warning. If this type of return were submitted in support of a federal return, or in the course of a tax audit, 7207 could apply even if 7206 (1) could not. There are other distinctions. The felony applies to a document that a taxpayer "[w]illfully makes and subscribes. and which he does not believe to be true and correct as to every material matter," whereas the misdemeanor applies to a document that a taxpayer "willfully delivers or discloses to the Secretary or his delegate known by him to be false as to any material matter." In the felony, then, the taxpayer must verify the return or document in writing, and he is liable if he does not affirmatively believe that the material statements are true. For the misdemeanor, however, a document prepared by another could give rise to liability on the part of the taxpayer if he delivered or disclosed it to the Service; additional protection is given to the taxpayer in this situation because the document must be known by him to be fraudulent or to be false. These differences in the respective applications of 7206 (1) and 7207 provide solid evidence that Congress distinguished the statutes in ways that do not turn on the meaning of the word "willfully." Judge Hastie, in analyzing this Court's holding in appropriately described this distinction as follows: "However, this distinction is found in the additional misconduct which is essential to the violation of the felony statute and not in the quality *359 of willfulness which characterizes

Justice Blackmun

majority

United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

and not in the quality *359 of willfulness which characterizes the wrongdoing." United Thus the word "willfully" may have a uniform meaning in the several statutes without rendering any one of them surplusage. We next turn to context. B. The hierarchy of tax offenses set forth in 7201-7207, inclusive, utilizes the mental state of the offender as a guide in establishing the penalty. Section 7201, relating to attempts to evade or defeat tax, has been described and recognized by the Court as the "climax of this variety of sanctions" and as the "capstone of a system of sanctions which singly or in combination were calculated to induce prompt and forthright fulfillment of every duty under the income tax law and to provide a penalty suitable to every degree of delinquency." ; -351. The actor's mental state is described both by the requirement that acts be done "willfully" and by the designation of certain express elements of the offenses. In 7201, for example, the Court has held that, by requiring an attempt to evade, "Congress intended some willful commission in addition to the willful omissions that make up the list of misdemeanors." Similarly, in 7207, the Government must show that the document was known by the taxpayer to be fraudulent or to be false as to a material matter. All these offenses, except two subsections of 7206, viz., subsections (3) and (4), require that acts be done "willfully." Although the described states of mind might be included in the normal meaning of the word "willfully," the presence of both an express designation and the simultaneous requirement that a violation be committed "willfully" is strong evidence that Congress used *360 the word "willfully" to describe a constant rather than a variable in the tax penalty formula.[8] The Court, in fact, has recognized that the word "willfully" in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as "bad faith or evil intent," or "evil motive and want of justification in view of all the financial circumstances of the taxpayer," or knowledge that the taxpayer "should have reported more income than he did." See ; This longstanding interpretation of the purpose of the recurring word "willfully" promotes coherence in the group of tax crimes. In our complex tax system, uncertainty often arises even among taxpayers who earnestly wish to follow the law. The Court has said, "It is not the purpose of the law to penalize frank difference of opinion or innocent errors made despite the *361 exercise of reasonable care." Degrees

Justice Blackmun

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United States v. Bishop

https://www.courtlistener.com/opinion/108803/united-states-v-bishop/

errors made despite the *361 exercise of reasonable care." Degrees of negligence give rise in the tax system to civil penalties. The requirement of an offense committed "willfully" is not met, therefore, if a taxpayer has relied in good faith on a prior decision of this Court. 366 U. S., at -222. Cf. The Court's consistent interpretation of the word "willfully" to require an element of mens rea implements the pervasive intent of Congress to construct penalties that separate the purposeful tax violator from the well-meaning, but easily confused, mass of taxpayers. Until Congress speaks otherwise, we therefore shall continue to require, in both tax felonies and tax misdemeanors that must be done "willfully," the bad purpose or evil motive described in We hold, consequently, that the word "willfully" has the same meaning in 7207 that it has in 7206 (1). Since the only issue in dispute in this case centered on willfulness, it follows that a conviction of the misdemeanor would clearly support a conviction for the felony.[9] Under these circumstances a lesser-included-offense instruction was not required or proper, for in the federal system it is not the function of the jury to set the penalty. -135. *362 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings. It is so ordered.

Justice Stevens

majority

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

During their examination of a damaged package, the employees of a private freight carrier observed a white powdery substance, originally concealed within eight layers of wrappings. They summoned a federal agent, who removed a trace of the powder, subjected it to a chemical test and determined that it was cocaine. The question presented is whether the Fourth Amendment required the agent to obtain a warrant before he did so. The relevant facts are not in dispute. Early in the morning of May 1, 1981, a supervisor at the Minneapolis-St. Paul Airport Federal Express office asked the office manager to look at a package that had been damaged and torn by a fork-lift. They then opened the package in order to examine its contents pursuant to a written company policy regarding insurance claims. The container was an ordinary cardboard box wrapped in brown paper. Inside the box five or six pieces of crumpled newspaper covered a tube about 10 inches long; the tube was made of the silver tape used on basement ducts. The supervisor and office manager cut open the tube, and found a series of four zip-lock plastic bags, the outermost enclosing the other three and the innermost containing about six and a half ounces of white powder. When they observed the white powder in the innermost bag, they notified the Drug Enforcement Administration. Before the first DEA agent arrived, they replaced the plastic bags in the tube and put the tube and the newspapers back into the box. When the first federal agent arrived, the box, still wrapped in brown paper, but with a hole punched in its side and the top open, was placed on a desk. The agent saw that one end of the tube had been slit open; he removed the four plastic bags from the tube and saw the white powder. He then opened each of the four bags and removed a trace of the *112 white substance with a knife blade. A field test made on the spot identified the substance as cocaine.[1] In due course, other agents arrived, made a second field test, rewrapped the package, obtained a warrant to search the place to which it was addressed, executed the warrant, and arrested respondents. After they were indicted for the crime of possessing an illegal substance with intent to distribute, their motion to suppress the evidence on the ground that the warrant was the product of an illegal search and seizure was denied; they were tried and convicted, and appealed. The Court of Appeals reversed. It held that the validity of the

Justice Stevens

majority

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

of Appeals reversed. It held that the validity of the search warrant depended on the validity of the agents' warrantless test of the white powder,[2] that the testing constituted a significant expansion of the earlier private search, and that a warrant was required. As the Court of Appeals recognized, its decision conflicted with a decision of another Court of Appeals on comparable facts, United (CA6), cert. denied,[3] For that reason, and because *113 field tests play an important role in the enforcement of the narcotics laws, we granted certiorari, I The first Clause of the Fourth Amendment provides that the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated" This text protects two types of expectations, one involving "searches," the other "seizures." A "search" occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.[4] A "seizure" of property occurs when there is some meaningful interference with an individual's possessory interests in that property.[5] This Court has also consistently construed this protection as proscribing only governmental action; it is wholly inapplicable "to a search or seizure, even an unreasonable one, effected by a private individual not acting as an agent of the Government or with the participation or knowledge of any governmental official."[6] When the wrapped parcel involved in this case was delivered to the private freight carrier, it was unquestionably an "effect" within the meaning of the Fourth Amendment. Letters and other sealed packages are in the general class of effects in which the public at large has a legitimate expectation of privacy; warrantless searches of such effects are presumptively unreasonable.[7] Even when government agents may lawfully seize such a package to prevent loss or destruction of suspected contraband, the Fourth Amendment requires that they obtain a warrant before examining the contents of such a package.[8] Such a warrantless search could not be characterized as reasonable simply because, after the official invasion of privacy occurred, contraband is discovered.[9] Conversely, in this case the fact that agents of the private carrier independently opened the package and made an examination that might have been impermissible for a government agent *115 cannot render otherwise reasonable official conduct unreasonable. The reasonableness of an official invasion of the citizen's privacy must be appraised on the basis of the facts as they existed at the time that invasion occurred. The initial invasions of respondents' package were occasioned by private action. Those invasions revealed that the package contained only one significant item, a suspicious looking tape tube. Cutting

Justice Stevens

majority

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

only one significant item, a suspicious looking tape tube. Cutting the end of the tube and extracting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were accidental or deliberate,[10] and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character. The additional invasions of respondents' privacy by the Government agent must be tested by the degree to which they exceeded the scope of the private search. That standard was adopted by a majority of the Court in Walter v. United In Walter a private party had opened a misdirected carton, found rolls of motion picture films that appeared to be contraband, and turned the carton over to the Federal Bureau of Investigation. Later, without obtaining a warrant, FBI agents obtained a projector and viewed the films. While there was no single opinion of the Court, a majority did agree on the appropriate analysis of a governmental search which follows on the heels of a private one. Two Justices took the position: "If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official *116 use of a private party's invasion of another person's privacy. Even though some circumstances — for example, if the results of the private search are in plain view when materials are turned over to the Government — may justify the Government's reexamination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening, one could only draw inferences about what was on the films. The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search." (footnote omitted).[11] Four additional Justices, while disagreeing with this characterization of the scope of the private search, were also of the view that the legality of the governmental search must be tested by the scope of the antecedent private search. "`Under these circumstances, since the L'Eggs employees so fully ascertained the nature of the films before contacting the authorities, we find that the FBI's subsequent viewing of the movies on a projector did not "change the nature of the search" and was not an additional search subject to the warrant requirement.' " (footnote omitted)[12] This standard follows from the analysis

Justice Stevens

majority

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

requirement.' " (footnote omitted)[12] This standard follows from the analysis applicable when private parties reveal other kinds of private information to the authorities. It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information: "This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed." United v. Miller,[13] The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. In such a case the authorities have not relied on what is in effect a private *118 search, and therefore presumptively violate the Fourth Amendment if they act without a warrant.[14] In this case, the federal agents' invasions of respondents' privacy involved two steps: first, they removed the tube from the box, the plastic bags from the tube, and a trace of powder from the innermost bag; second, they made a chemical test of the powder. Although we ultimately conclude that both actions were reasonable for essentially the same reason, it is useful to discuss them separately. When the first federal agent on the scene initially saw the package, he knew it contained nothing of significance except a tube containing plastic bags and, ultimately, white powder. It is not entirely clear that the powder was visible to him before he removed the tube from the box.[15] Even if the white *119 powder was not itself in "plain view" because it was still enclosed in so many containers and covered with papers, there was a virtual certainty that nothing else of significance was in the package and that a manual inspection of the tube and its contents would not tell him anything more than he already had been told. Respondents do not dispute that the Government could utilize the Federal Express employees' testimony concerning the contents of the package. If that is the case, it hardly infringed respondents' privacy for the agents to re-examine the contents of the open package by brushing aside a crumpled newspaper and picking

Justice Stevens

majority

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

open package by brushing aside a crumpled newspaper and picking up the tube. The advantage the Government gained thereby was merely avoiding the risk of a flaw in the employees' recollection, rather than in further infringing respondents' privacy. Protecting the risk of misdescription hardly enhances any legitimate privacy interest, and is not protected by the Fourth Amendment.[16] Respondents could have no privacy interest in the contents of the package, since it remained unsealed and since the Federal Express employees had just examined the package and had, of their own accord, invited the federal agent to their offices for the express purpose of viewing its contents. The agent's viewing of what a private party had freely made available for his inspection did not violate the Fourth Amendment. *120 See 403 U.S. ; Similarly, the removal of the plastic bags from the tube and the agent's visual inspection of their contents enabled the agent to learn nothing that had not previously been learned during the private search.[17] It infringed no legitimate expectation of privacy and hence was not a "search" within the meaning of the Fourth Amendment. While the agents' assertion of dominion and control over the package and its contents did constitute a "seizure,"[18] that *121 seizure was not unreasonable. The fact that, prior to the field test, respondents' privacy interest in the contents of the package had been largely compromised is highly relevant to the reasonableness of the agents' conduct in this respect. The agents had already learned a great deal about the contents of the package from the Federal Express employees, all of which was consistent with what they could see. The package itself, which had previously been opened, remained unsealed, and the Federal Express employees had invited the agents to examine its contents. Under these circumstances, the package could no longer support any expectation of privacy; it was just like a balloon "the distinctive character [of which] spoke volumes as to its contents — particularly to the trained eye of the officer," ; see also ; or the hypothetical gun case in Such containers may be seized, at least temporarily, without a warrant.[19] Accordingly, since it was apparent that the tube and plastic bags contained contraband and little else, this warrantless seizure was reasonable,[20] for it is well settled that it is constitutionally reasonable for law enforcement officials to seize "effects" that cannot support a justifiable expectation *122 of privacy without a warrant, based on probable cause to believe they contain contraband.[21] I The question remains whether the additional intrusion occasioned by the field test, which had not

Justice Stevens

majority

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

additional intrusion occasioned by the field test, which had not been conducted by the Federal Express employees and therefore exceeded the scope of the private search, was an unlawful "search" or "seizure" within the meaning of the Fourth Amendment. The field test at issue could disclose only one fact previously unknown to the agent — whether or not a suspicious white powder was cocaine. It could tell him nothing more, not even whether the substance was sugar or talcum powder. We must first determine whether this can be considered a "search" subject to the Fourth Amendment — did it infringe an expectation of privacy that society is prepared to consider reasonable? The concept of an interest in privacy that society is prepared to recognize as reasonable is, by its very nature, critically different from the mere expectation, however well justified, that certain facts will not come to the attention of the authorities.[22] Indeed, this distinction underlies the rule that *123 government may utilize information voluntarily disclosed to a governmental informant, despite the criminal's reasonable expectation that his associates would not disclose confidential information to the authorities. See United v. White, A chemical test that merely discloses whether or not a particular substance is cocaine does not compromise any legitimate interest in privacy. This conclusion is not dependent on the result of any particular test. It is probably safe to assume that virtually all of the tests conducted under circumstances comparable to those disclosed by this record would result in a positive finding; in such cases, no legitimate interest has been compromised. But even if the results are negative — merely disclosing that the substance is something other than cocaine — such a result reveals nothing of special interest. Congress has decided — and there is no question about its power to do so — to treat the interest in "privately" possessing cocaine as illegitimate; thus governmental conduct that can reveal whether a substance is cocaine, and no other arguably "private" fact, compromises no legitimate privacy interest.[23] This conclusion is dictated by United v. Place, in which the Court held that subjecting luggage to a "sniff test" by a trained narcotics detection dog was not a "search" within the meaning of the Fourth Amendment: *124 "A `canine sniff' by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is

Justice Stevens

majority

United States v. Jacobsen

https://www.courtlistener.com/opinion/111143/united-states-v-jacobsen/

in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited."[24] Here, as in Place, the likelihood that official conduct of the kind disclosed by the record will actually compromise any legitimate interest in privacy seems much too remote to characterize the testing as a search subject to the Fourth Amendment. We have concluded, in Part that the initial "seizure" of the package and its contents was reasonable. Nevertheless, as Place also holds, a seizure lawful at its inception can nevertheless violate the Fourth Amendment because its manner of execution unreasonably infringes possessory interests protected by the Fourth Amendment's prohibition on "unreasonable seizures."[25] Here, the field test did affect respondents' possessory interests protected by the Amendment, since by destroying a quantity of the powder it converted *125 what had been only a temporary deprivation of possessory interests into a permanent one. To assess the reasonableness of this conduct, "[w]e must balance the nature and quality of the intrusion on the individual's Fourth Amendment interests against the importance of the governmental interests alleged to justify the intrusion."[26] Applying this test, we conclude that the destruction of the powder during the course of the field test was reasonable. The law enforcement interests justifying the procedure were substantial; the suspicious nature of the material made it virtually certain that the substance tested was in fact contraband. Conversely, because only a trace amount of material was involved, the loss of which appears to have gone unnoticed by respondents, and since the property had already been lawfully detained, the "seizure" could, at most, have only a de minimis impact on any protected property interest. Cf. (examination of automobile's tires and taking of paint scrapings was a de minimis invasion of constitutional interests).[27] Under these circumstances, the safeguards of a warrant would only minimally advance Fourth Amendment interests. This warrantless "seizure" was reasonable.[28] *126 In sum, the federal agents did not infringe any constitutionally protected privacy interest that had not already been frustrated as the result of private conduct. To the extent that a protected possessory interest was infringed, the infringement was de minimis and constitutionally reasonable. The judgment of the Court of Appeals is Reversed. JUSTICE WHITE, concurring in part and concurring in the judgment.

Justice Marshall

majority

Quilloin v. Walcott

https://www.courtlistener.com/opinion/109760/quilloin-v-walcott/

The issue in this case is the constitutionality of Georgia's adoption laws as applied to deny an unwed father authority to prevent adoption of his illegitimate child. The child was born in December 1964 and has been in the custody and control of his mother, appellee Ardell Williams Walcott, for his entire life. The mother and the child's natural father, appellant Leon Webster Quilloin, never married each other or established a home together, and in September 196 the mother married appellee Randall Walcott.[1] In March 196, she consented to adoption of the child by her husband, who immediately filed a petition for adoption. Appellant attempted to block the adoption and to secure visitation rights, but he did not seek custody or object to the child's continuing to live with appellees. Although appellant was not found to be an unfit parent, the adoption was granted over his objection. In this Court held that the State of was barred, as a matter of both due process and equal protection, from taking custody of the children of an unwed father, absent a hearing and a particularized *48 finding that the father was an unfit parent. The Court concluded, on the one hand, that a father's interest in the "companionship, care, custody, and management" of his children is "cognizable and substantial," and, on the other hand, that the State's interest in caring for the children is "de minimis" if the father is in fact a fit parent, Stanley left unresolved the degree of protection a State must afford to the rights of an unwed father in a situation, such as that presented here, in which the countervailing interests are more substantial. I Generally speaking, under Georgia law a child born in wedlock cannot be adopted without the consent of each living parent who has not voluntarily surrendered rights in the child or been adjudicated an unfit parent.[] Even where the child's parents are divorced or separated at the time of the adoption proceedings, either parent may veto the adoption. In contrast, only the consent of the mother is required for adoption of an illegitimate child. Ga. Code 4-403 (3) (195).[3] To *49 acquire the same veto authority possessed by other parents, the father of a child born out of wedlock must legitimate his offspring, either by marrying the mother and acknowledging the child as his own, 4-101, or by obtaining a court order declaring the child legitimate and capable of inheriting from the father, 4-103.[4] But unless and until the child is legitimated, the mother is the only recognized parent and is given exclusive

Justice Marshall

majority

Quilloin v. Walcott

https://www.courtlistener.com/opinion/109760/quilloin-v-walcott/

mother is the only recognized parent and is given exclusive authority to exercise all parental prerogatives, 4-03,[5] including the power to veto adoption of the child. Appellant did not petition for legitimation of his child at any time during the 11 years between the child's birth and the filing of Randall Walcott's adoption petition.[6] However, in *50 response to Walcott's petition, appellant filed an application for a writ of habeas corpus seeking visitation rights, a petition for legitimation, and an objection to the adoption.[] Shortly thereafter, appellant amended his pleadings by adding the claim that 4-03 and 4-403 (3) were unconstitutional as applied to his case, insofar as they denied him the rights granted to married parents, and presumed unwed fathers to be unfit as a matter of law. The petitions for adoption, legitimation, and writ of habeas corpus were consolidated for trial in the Superior Court of Fulton County, Ga. The court expressly stated that these matters were being tried on the basis of a consolidated record to allow "the biological father a right to be heard with respect to any issue or other thing upon which he desire[s] to be heard, including his fitness as a parent"[8] After receiving extensive testimony from the parties and other witnesses, *51 the trial court found that, although the child had never been abandoned or deprived, appellant had provided support only on an irregular basis.[9] Moreover, while the child previously had visited with appellant on "many occasions," and had been given toys and gifts by appellant "from time to time," the mother had recently concluded that these contacts were having a disruptive effect on the child and on appellees' entire family.[10] The child himself expressed a desire to be adopted by Randall Walcott and to take on Walcott's name,[11] and the court found Walcott to be a fit and proper person to adopt the child. On the basis of these findings, as well as findings relating to appellees' marriage and the mother's custody of the child for all of the child's life, the trial court determined that the proposed adoption was in the "best interests of [the] child." The court concluded, further, that granting either the legitimation or the visitation rights requested by appellant would not be in the "best interests of the child," and that both should consequently be denied. The court then applied 4-03 and 4-403 (3) to the situation at hand, and, since appellant had failed to obtain a court order granting legitimation, he was found to lack standing to object to the adoption. *5 Ruling that appellant's constitutional

Justice Marshall

majority

Quilloin v. Walcott

https://www.courtlistener.com/opinion/109760/quilloin-v-walcott/

to object to the adoption. *5 Ruling that appellant's constitutional claims were without merit, the court granted the adoption petition and denied the legitimation and visitation petitions. Appellant took an appeal to the Supreme Court of Georgia, claiming that 4-03 and 4-403 (3), as applied by the trial court to his case, violated the Equal Protection and Due Process Clauses of the Fourteenth Amendment. In particular, appellant contended that he was entitled to the same power to veto an adoption as is provided under Georgia law to married or divorced parents and to unwed mothers, and, since the trial court did not make a finding of abandonment or other unfitness on the part of appellant, see n. the adoption of his child should not have been allowed. Over a dissent which urged that 4-403 (3) was invalid under the Georgia Supreme Court affirmed the decision of the trial court. 38 Ga. 30, 3 S.E.d 46[1] The majority relied generally on the strong state policy of rearing children in a family setting, a policy which in the court's view might be thwarted if unwed fathers were required to consent to adoptions. The court also emphasized the special force of this policy under the facts of this case, pointing out that the adoption was sought by the child's stepfather, who was part of the family unit in which the child was *53 in fact living, and that the child's natural father had not taken steps to support or legitimate the child over a period of more than 11 years. The court noted in addition that, unlike the father in Stanley, appellant had never been a de facto member of the child's family unit. Appellant brought this appeal pursuant to 8 U.S. C. 15 (), continuing to challenge the constitutionality of 4-03 and 4-403 (3) as applied to his case, and claiming that he was entitled as a matter of due process and equal protection to an absolute veto over adoption of his child, absent a finding of his unfitness as a parent. In contrast to appellant's somewhat broader statement of the issue in the Georgia Supreme Court, on this appeal he focused his equal protection claim solely on the disparate statutory treatment of his case and that of a married father.[13] We noted probable jurisdiction, and we now affirm. II At the outset, we observe that appellant does not challenge the sufficiency of the notice he received with respect to the adoption proceeding, see n. nor can he claim that he was deprived of a right to a hearing on his individualized

Justice Marshall

majority

Quilloin v. Walcott

https://www.courtlistener.com/opinion/109760/quilloin-v-walcott/

deprived of a right to a hearing on his individualized interests in his child, prior to entry of the order of adoption. Although the trial court's ultimate conclusion was that appellant lacked standing to object to the adoption, this conclusion was reached only after appellant had been afforded a full hearing on his legitimation petition, at which he was given the opportunity to offer evidence on any matter he thought relevant, including his fitness as a parent. Had the trial court *54 granted legitimation, appellant would have acquired the veto authority he is now seeking. The fact that appellant was provided with a hearing on his legitimation petition is not, however, a complete answer to his attack on the constitutionality of 4-03 and 4-403 (3). The trial court denied appellant's petition, and thereby precluded him from gaining veto authority, on the ground that legitimation was not in the "best interests of the child"; appellant contends that he was entitled to recognition and preservation of his parental rights absent a showing of his "unfitness." Thus, the underlying issue is whether, in the circumstances of this case and in light of the authority granted by Georgia law to married fathers, appellant's interests were adequately protected by a "best interests of the child" standard. We examine this issue first under the Due Process Clause and then under the Equal Protection Clause. A Appellees suggest that due process was not violated, regardless of the standard applied by the trial court, since any constitutionally protected interest appellant might have had was lost by his failure to petition for legitimation during the 11 years prior to filing of Randall Walcott's adoption petition. We would hesitate to rest decision on this ground, in light of the evidence in the record that appellant was not aware of the legitimation procedure until after the adoption petition was filed.[14] But in any event we need not go that far, since under the circumstances of this case appellant's substantive rights were not violated by application of a "best interests of the child" standard. *55 We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected. See, e. g., 406 U.S. 05, 31-33 ; 6 U.S. 390, (193). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." 31 U.S. 158, And it is now firmly established that "freedom of personal choice in matters of family life is one of the liberties

Justice Marshall

majority

Quilloin v. Walcott

https://www.courtlistener.com/opinion/109760/quilloin-v-walcott/

in matters of family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment." Cleveland Board of 414 U.S. 63, (194). We have little doubt that the Due Process Clause would be offended "[i]f a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children's best interest." 86-863 But this is not a case in which the unwed father at any time had, or sought, actual or legal custody of his child. Nor is this a case in which the proposed adoption would place the child with a new set of parents with whom the child had never before lived. Rather, the result of the adoption in this case is to give full recognition to a family unit already in existence, a result desired by all concerned, except appellant. Whatever might be required in other situations, we cannot say that the State was required in this situation to find anything more than that the adoption, and denial of legitimation, were in the "best interests of the child." B Appellant contends that even if he is not entitled to prevail as a matter of due process, principles of equal protection require that his authority to veto an adoption be measured by *56 the same standard that would have been applied to a married father. In particular, appellant asserts that his interests are indistinguishable from those of a married father who is separated or divorced from the mother and is no longer living with his child, and therefore the State acted impermissibly in treating his case differently. We think appellant's interests are readily distinguishable from those of a separated or divorced father, and accordingly believe that the State could permissibly give appellant less veto authority than it provides to a married father. Although appellant was subject, for the years prior to these proceedings, to essentially the same child-support obligation as a married father would have had, compare 4-0 with 4-105 and 30-301, he has never exercised actual or legal custody over his child, and thus has never shouldered any significant responsibility with respect to the daily supervision, education, protection, or care of the child. Appellant does not complain of his exemption from these responsibilities and, indeed, he does not even now seek custody of his child. In contrast, legal custody of children is, of course, a central aspect of the marital relationship, and even

Justice White

majority

United States v. Ojeda Rios

https://www.courtlistener.com/opinion/112421/united-states-v-ojeda-rios/

This case arises under Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (Title III), as amended, 18 U.S. C. 2510 et seq., which regulates the interception of wire, oral, and electronic communications. Except under extraordinary circumstances, see 2518(7), electronic surveillance may be conducted only pursuant to a court order. See 2518(1)-(6). Section 2518(8)(a) requires that "[t]he contents of any wire, oral, or electronic communication intercepted by any means authorized by this chapter shall, if possible, be recorded on tape or wire or other comparable device" and that recording "shall be done in such way as will protect the recording from editing or other alterations." The section further provides that "[i]mmediately upon the expiration of the period of the order, or extensions thereof, such recordings shall be made available to the judge issuing *260 such order and sealed under his directions." Section 2518(8) (a) has an explicit exclusionary remedy[1] for noncompliance with the sealing requirement, providing that "[t]he presence of the seal provided for by this subsection, or a satisfactory explanation for the absence thereof, shall be a prerequisite for the use or disclosure of the contents of any wire, oral, or electronic communication or evidence derived therefrom under subsection (3) of section 2517."[2] In this case, a series of court orders authorized electronic surveillance. The tapes later offered in evidence bore seals but the seals on the tapes at issue had not been immediately attached as required by the statute. The issue we address is whether 2518(8)(a) requires suppression of those tapes. Respondents are members of a Puerto Rican organization known as Los Macheteros (the "machete wielders"). All have been charged with federal crimes relating to the robbery in 1983 of a Wells Fargo depot in Connecticut, a robbery which netted approximately $7 million. The Government first began investigating respondents in connection with a rocket attack on the United States Courthouse in Hato Rey, Puerto Rico. Effective April 27, 1984, the Government obtained an order of electronic surveillance for the residence of Filiberto Ojeda Rios in Levittown, Puerto Rico, and for some public telephones near the residence. During its investigation of the rocket attack, the Government discovered evidence *261 indicating that respondents had been involved in the Wells Fargo depot robbery. The Government obtained two extensions of the April 27 surveillance order, with the final extension expiring on July 23, 1984. The Government actually terminated surveillance at the Levittown residence and public telephones on July 9, 1984, when Ojeda Rios moved to an apartment in El Cortijo, a community adjacent to Levittown. On July 27,

Justice White

majority

United States v. Ojeda Rios

https://www.courtlistener.com/opinion/112421/united-states-v-ojeda-rios/

El Cortijo, a community adjacent to Levittown. On July 27, 1984, the Government obtained a new surveillance order covering Ojeda Rios' El Cortijo residence. After extensions, that order expired on September 24, 1984. Another surveillance order authorizing surveillance of Ojeda Rios' car, originally entered on May 11, 1984, was extended and finally expired on October 10, 1984. All tapes created during the surveillance of Ojeda Rios were sealed by the United States District Court for the District of Puerto Rico on October 13, 1984. As part of the Wells Fargo robbery investigation, the Government obtained a court order on November 1, 1984, authorizing it to wiretap a residence shared by Juan Segarra Palmer and Luz Berrios Berrios in Vega Baja, Puerto Rico. The District Court extended that authorization order each month for seven months, with the last extension expiring on May 30, 1985. The Government also obtained a court order authorizing it to wiretap two public telephones in Vega Baja, effective January 18, 1985. That order expired on February 17, 1985, and due to difficulties in finishing the affidavit necessary to obtain an extension, the Government did not apply for an extension until March 1, 1985. The District Court issued a new order on that date. The order was thereafter extended twice and finally expired on May 30, 1985. All tapes from the Vega Baja wiretaps were judicially sealed on June 15, 1985. After respondents were indicted for various offenses relating to the Wells Fargo depot robbery, they moved to suppress all evidence the Government had obtained as a result of electronic surveillance. Following a suppression hearing, *262 the United States District Court for the District of Connecticut refused to suppress the El Cortijo and Vega Baja residence tapes, but suppressed the Levittown tapes and the public telephone tapes made in Vega Baja. In doing so, the District Court determined that the July 27, 1984, order authorizing the wiretap at the El Cortijo residence was not an extension of the April 27, 1984, order authorizing the Levittown wiretaps and, therefore, the obligation to seal the Levittown tapes arose when the last extension of the April 27 order expired on July 23, 1984. The court calculated that there had been at least an 82-day delay in sealing the Levittown tapes. With respect to the public telephone wiretaps in Vega Baja, the court determined that the March 1, 1985, order could not be considered an extension of the initial January 18, 1985, order — which had expired on February 17, 1985 — because of the 12-day delay in seeking reauthorization of the

Justice White

majority

United States v. Ojeda Rios

https://www.courtlistener.com/opinion/112421/united-states-v-ojeda-rios/

because of the 12-day delay in seeking reauthorization of the January 18 order and the Government's failure to satisfactorily explain that delay. The court calculated that the sealing of the tapes on June 15, 1985, occurred 118 days after the order which authorized the surveillance had expired. Without determining the authenticity of these two sets of tapes, the District Court suppressed them on the basis of the delay alone. The United States Court of Appeals for the Second Circuit affirmed the suppression of the tapes, rejecting the Government's explanation for the sealing delays. Because the scope and role of the sealing provision of Title III has generated disagreement in the lower courts, we granted certiorari, and now vacate and remand. The Government first argues that because 2518(8)(a) states that as a prerequisite to admissibility, electronic surveillance tapes must either bear a seal or the Government must provide a "satisfactory explanation" for the "absence" of a seal, the "satisfactory explanation" requirement does not apply where the tapes to be offered in evidence actually bear *263 a seal, regardless of when or why the seal was applied. This argument is unpersuasive. The narrow reading suggested by the Government is not a plausible interpretation of congressional intent when the terms and purpose of 2518(8)(a) are considered as a whole. The section begins with the command that tapes shall be sealed "immediately" upon expiration of the underlying surveillance order and then, prior to the clause relied upon by the Government, provides that "the seal provided for by this subsection" (emphasis added) is a prerequisite to the admissibility of electronic surveillance tapes. The clear import of these provisions is that the seal required by 2518(8)(a) is not just any seal but a seal that has been obtained immediately upon expiration of the underlying surveillance order. The "absence" the Government must satisfactorily explain encompasses not only the total absence of a seal but also the absence of a timely applied seal. Contrary to what is so plainly required by 2518(8)(a), the Government would have us nullify the immediacy aspect of the sealing requirement. The primary thrust of 2518(8)(a), see S. Rep. No. 1097, 90th Cong., 2d Sess., 105 (1968), and a congressional purpose embodied in Title III in general, see, e. g., United is to ensure the reliability and integrity of evidence obtained by means of electronic surveillance. The presence or absence of a seal does not in itself establish the integrity of electronic surveillance tapes. Rather, the seal is a means of ensuring that subsequent to its placement on a tape, the Government has no

Justice White

majority

United States v. Ojeda Rios

https://www.courtlistener.com/opinion/112421/united-states-v-ojeda-rios/

to its placement on a tape, the Government has no opportunity to tamper with, alter, or edit the conversations that have been recorded. It is clear to us that Congress viewed the sealing requirement as important precisely because it limits the Government's opportunity to alter the recordings. The Government's view of the statute would create the anomalous result that the prosecution could delay requesting a seal for months, perhaps even until a few days before trial, without risking a substantial penalty. Since it is likely that a *264 district court would automatically seal the tapes,[3] there would be no "absence" of a seal, in the sense suggested by the Government, and 2518(8)(a) would not come into play, even though the tapes would have been exposed to alteration or editing for an extended period of time. Such a view of the statute ignores the purposes of the sealing provision and is too strained a reading of the statutory language to withstand scrutiny. Like every Court of Appeals that has considered the question, we conclude that 2518(8)(a) applies to a delay in sealing, as well as to a complete failure to seal, tapes.[4] The Government's second contention is that even if 2518 (8)(a)'s "satisfactory explanation" requirement applies to delays in sealing tapes, it is satisfied if the Government first explains why the delay occurred and then demonstrates that the tapes are authentic. This submission, however, also is not a sensible construction of the language of 2518(8)(a) and would essentially nullify the function of the sealing requirement as a safeguard against tampering. The statute requires a satisfactory explanation, not just an explanation. It is difficult to imagine a situation in which the Government could not explain why it delayed in seeking to have tapes sealed. Even deliberate delay would be enough, so long as the Government could establish the integrity of the tapes; yet deliberate delay could hardly be called a satisfactory explanation. To hold that proof of nontampering is a substitute for a *265 satisfactory explanation is foreclosed by the plain words of the sealing provision. It is true that offering to prove that tapes are authentic would be consistent with Congress' concern about tampering,[5] but even if we were confident that tampering could always be easily detected, we would not be at liberty to agree with the Government, for it is obvious that Congress had another view when it imposed the sealing safeguard. The Government contends that it has an incentive to seal tapes immediately because otherwise, even under its proposed test, it will face lengthy pretrial suppression hearings in which

Justice White

majority

United States v. Ojeda Rios

https://www.courtlistener.com/opinion/112421/united-states-v-ojeda-rios/

test, it will face lengthy pretrial suppression hearings in which it must establish the authenticity of tape recorded conversations. This is no more than a statement that only rarely would there be a delay and does not answer the issue posed where there is a delay that is not satisfactorily explained. Furthermore, the incentive argument is suspect since timely sealing, as the Government concedes, Tr. of Oral Arg. 10-11, 22-23, does not foreclose a challenge to authenticity, which in any event would require lengthy proceedings. We conclude that the "satisfactory explanation" language in 2518(8)(a) must be understood to require that the Government explain not only why a delay occurred but also why it is excusable. This approach surely is more consistent with the language and purpose of 2518(8)(a). Finally, we must consider whether the Government established good cause for the sealing delays that occurred in this case. The Government contends in this Court that its delays were the result of a good-faith, objectively reasonable misunderstanding of the statutory term "extension." According to *266 the Government, the attorney supervising the investigation and electronic surveillance of respondents believed that he was not required to seek sealing of the tapes until there was a meaningful hiatus in the investigation as a whole. In arguing that this understanding of the law was objectively reasonable, the Government relies primarily on two Second Circuit cases interpreting the statutory term "extension." In one case, the Second Circuit held that an electronic surveillance order that was entered at least 16 days after a prior order had expired was to be regarded as an "extension" within the meaning of 2518 because it "was clearly part of the same investigation of the same individuals conducting the same criminal enterprise" as was being investigated under the prior order. United cert. denied, In a subsequent case, again involving a gap between the expiration of an order and an "extension," the court indicated that under the circumstances presented later orders could be deemed extensions of prior ones and stated that where an "intercept is of the same premises and involves substantially the same persons, an extension under these circumstances requires sealing only at the conclusion of the whole surveillance." United cert. denied, These cases do not establish that the Government's asserted understanding of the law in this case was correct; indeed, the Second Circuit's decision in this case indicates the contrary, but the cases do support the conclusion that the "extension" theory now pressed upon us was objectively reasonable at the time of the delays. Thus, we conclude that the excuse now advanced

Justice White

majority

United States v. Ojeda Rios

https://www.courtlistener.com/opinion/112421/united-states-v-ojeda-rios/

the delays. Thus, we conclude that the excuse now advanced by the Government is objectively reasonable. In establishing a reasonable excuse for a sealing delay, the Government is not required to prove that a particular understanding of the law is correct but rather only that its interpretation was objectively reasonable at the time. To the extent the Second Circuit in this case required an absolutely *267 correct interpretation of the law, we think it held the Government to too strict a standard. Nevertheless, we must remand this case for further proceedings. A "satisfactory explanation" within the meaning of 2518(8)(a) cannot merely be a reasonable excuse for the delay presented at the appellate level. Rather, our review of the sufficiency of the Government's explanation for a delay should be based on the evidence presented and submissions made in the District Court. Therein lies the problem in this case. Whether the supervising attorney actually advanced the Government's "extension" theory in the District Court is not clear. Compare App. 4-5 (no sealing required for an ongoing investigation until a "meaningful hiatus" occurred), and with and Thus, even though the misunderstanding now pressed by the Government was objectively reasonable, that explanation is not "satisfactory" within the meaning of the statute unless it was relied on at the suppression hearing to explain the sealing delays. Because the Second Circuit did not address this threshold question, the case must be remanded for a determination whether the Government's explanation to the District Court substantially corresponds to the explanation it now advances. The judgment of the United States Court of Appeals for the Second Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Rehnquist

majority

United States v. Jenkins

https://www.courtlistener.com/opinion/109201/united-states-v-jenkins/

Respondent Jenkins was indicted and charged with violating 12 (a) of the Military Selective Service Act, as amended, 50 U.S. C. App. 462 (a), for "knowingly refusing and failing to submit to induction into the armed forces of the United" App. After a bench trial, the District Court "dismissed" the indictment and "discharged" the respondent. The Government sought to appeal this ruling pursuant to 18 U.S. C. 71,[1] but the *60 Court of Appeals for the Second Circuit dismissed the appeal "for lack of jurisdiction on the ground that the Double Jeopardy clause prohibits further prosecution." We granted certiorari in this case and United v. Wilson, ante, p. 2, also decided today, to consider the application of the Double Jeopardy Clause of the Fifth Amendment to Government appeals in criminal cases. I Respondent, who had first registered with his local draft board in 1966, was classified 1-A by his local board on November 18, 1970. He was found physically fit for induction, and on February 4, 1971, the local board sent respondent an Order to Report for Induction on February 24, 1971. After consulting an attorney and a local draft counselor, respondent wrote the local board and requested Selective Service Form 150 for a conscientious objector classification. Having received no response from the local board by February 2, the day before he had been to report for induction, respondent went in person to the local board to request Form 150. Although respondent did secure the desired form, local board officials were directed by Selective Service headquarters not to postpone his induction to allow him to complete and submit the conscientious objector form. Respondent did not report for induction on February 24, 1971, and he was subsequently indicted. Respondent was arraigned on January 1, and pleaded not guilty. The parties were directed to file all pretrial motions within 45 days, but no pretrial motions *61 were filed within that period. The case was called and continued on several occasions. During this period respondent filed a motion for judgment of acquittal based, in part, on the following ground: "The failure of the local board to postpone the induction order pending the determination of the defendant's claim as a conscientious objector was arbitrary and contrary to law and rendered the Order to report for induction invalid. United" App. 4. In Gearey the Court of Appeals had interpreted the controlling Selective Service regulation[2] to require a local board to reopen a registrant's classification if it found that the registrant's conscientious objector views had ripened only after he had been notified to report for *62

Justice Rehnquist

majority

United States v. Jenkins

https://www.courtlistener.com/opinion/109201/united-states-v-jenkins/

only after he had been notified to report for *62 induction. At the time respondent was to report for induction, Gearey remained the law of the Circuit. Two months later, however, this Court rejected Gearey in a decision affirming a contrary holding from another Circuit. When the case proceeded to trial, respondent waived trial to a jury, and the case was tried to the court. At the close of the evidence, the court reserved decision in order to give the parties an opportunity to submit proposed findings. Although it does not appear from the record that either party requested the court to find the facts specially, Fed. Rule Crim. Proc. 2 (c), the court filed written findings of fact and conclusions of law, and directed that the indictment be dismissed and the respondent be discharged. The court acknowledged that respondent had failed to report for induction as and that under Ehlert the board is not required to entertain conscientious objector claims arising between notice of induction and the scheduled induction date. Nevertheless, since respondent failed to report for induction at a time when Ehlert had not yet been decided and Gearey represented the prevailing law, respondent was entitled to a postponement of induction until the board considered his conscientious objector claim. The court reasoned that it would be unfair to apply Ehlert to respondent: "This court cannot permit the criminal prosecution of the defendant under these circumstances without seriously eroding fundamental and basic equitable principles of law." 49 F. Supp., at[] *6 The Government filed a timely notice of appeal[4] and argued that the District Court had incorrectly concluded that Ehlert was not retroactive.[5] Since this Court held long ago that the Government cannot bring an appeal in a criminal case absent an express enabling statute, United the Court of Appeals considered first whether petitioner's appeal was authorized by 18 U.S. C. 71. The Government contended, and respondent did not dispute, that the intention of Congress in amending 18 *64 U. S. C. 71 in 1971 was to extend the Government's right to appeal to the fullest extent consonant with the Fifth Amendment.[6] Judge Friendly, writing for the Court of Appeals, carefully reviewed the evolution of the Double Jeopardy Clause and concluded that the draftsmen "intended to import into the Constitution the common law protections much as they were described by Blackstone." While available evidence was equivocal on whether "the crown's inability to appeal an acquittal after a trial on the merits" was incorporated in the common-law concept of double jeopardy, the majority was of the view that decisions by

Justice Rehnquist

majority

United States v. Jenkins

https://www.courtlistener.com/opinion/109201/united-states-v-jenkins/

jeopardy, the majority was of the view that decisions by this Court had resolved any such ambiguity adversely to the Government. citing United ; ; Fong ; United Although the District Court had characterized its action as a dismissal of the indictment, the Court of Appeals concluded that the respondent had been acquitted since the District Court had relied upon facts developed at trial and had concluded "that the statute should not be applied to [respondent] as a matter of fact." Judge Lumbard dissented on two grounds. First, an appeal by the Government was permissible since the District Court had properly characterized its action as a dismissal rather than an acquittal. The District Court's decision was "essentially a legal determination construing the statute on which the indictment was based," and not really an adjudication on the merits in the sense that it rested on facts brought out at trial. Second, even if the District Court did acquit respondent, the Double Jeopardy Clause does not stand as an absolute *65 barrier against appeals by the Government; there is a societal interest to be weighed in determining the appealability of the decision.[7] II When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United v. Wilson, ante, at 44-45, 52-5. When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict. To be sure, the defendant would prefer that the Government not be permitted to appeal or that the judgment of conviction not be entered, but this interest of the defendant is not one that the Double Jeopardy Clause was designed to protect. Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through that Clause apply to cases tried to a judge. While the protection against double jeopardy has most often been articulated *66 in the context of jury trials,[8] the recent decision by Congress to authorize Government appeals whenever consistent with the Double Jeopardy Clause, when combined with the increasing number[9] of bench trials, makes this area important

Justice Rehnquist

majority

United States v. Jenkins

https://www.courtlistener.com/opinion/109201/united-states-v-jenkins/

the increasing number[9] of bench trials, makes this area important though unilluminated by prior decisions of this Court. A general finding of guilt by a judge may be analogized to a verdict of "guilty" returned by a jury. cert. denied, In a case tried to a jury, the distinction between the jury's verdict of guilty and the court's ruling on questions of law is easily perceived. In a bench trial, both functions are combined in the judge, and a general finding of "not guilty" may rest either on *67 the determination of facts in favor of a defendant or on the resolution of a legal question favorably to him. If the court prepares special findings of fact, either because the Government or the defendant requested them[10] or because the judge has elected to make them sua sponte,[11] it may be possible upon sifting those findings to determine that the court's finding of "not guilty" is attributable to an erroneous conception of the law whereas the court has resolved against the defendant all of the factual issues necessary to support a finding of guilt under the correct legal standard. The Government argues that this is essentially what happened in this case. Brief for United 11-14. We are less certain than the Government, however, of the basis upon which the District Court ruled. It is, to be sure, not clear that the District Court resolved issues of fact in favor of respondent. But neither is it clear to us that the District Court, in its findings of fact and conclusions of law, expressly or even impliedly found against respondent on all the issues necessary to establish guilt under even the Government's formulation of the applicable law. The court's opinion certainly contains no general finding of guilt, and although the specific findings resolved against respondent many of the component elements of the offense, there is no finding on the statutory element of "knowledge." In light of the judge's discussion of the Gearey issue in his opinion, such an omission may have reflected his conclusion that the Government *68 had failed to establish the requisite criminal intent beyond a reasonable doubt. See n. On such a record, a determination by the Court of Appeals favorable to the Government on the merits of the retroactivity issue tendered to it by the Government would not justify a reversal with instructions to reinstate the general finding of guilt: there was no such finding, in form or substance, to reinstate. We hold today in Wilson, that the Double Jeopardy Clause does not bar an appeal when errors of

Justice Rehnquist

majority

United States v. Jenkins

https://www.courtlistener.com/opinion/109201/united-states-v-jenkins/

Jeopardy Clause does not bar an appeal when errors of law may be corrected and the result of such correction will simply be a reinstatement of a jury's verdict of guilty or a judge's finding of guilt. But because of the uncertainty as to the basis for the District Court's action here, Wilson does not govern this case. The Government suggests two possible theories, each of which would go beyond our holding in Wilson, for permitting an appeal even though the trial proceedings did not result in either a verdict or a finding of guilt. First, the Government suggests that "whether a new trial must follow an appeal is always a relevant consideration," but no more; the Double Jeopardy Clause is not an absolute bar in such a situation.[12] Second, at least in a bench trial setting, the Government contends that the concept of "trial" may be viewed quite broadly. If, in a bench trial, a judge has ruled in favor of the defendant at the close of the Government's case on an erroneous legal theory, the Government ought to be able to appeal; if the appeal were successful, any subsequent proceedings including, presumably, the reopening of the proceeding for the admission of additional evidence, would merely *69 be a "continuation of the first trial."[1] Tr. of Oral Arg. 16. This theory would also permit remanding a case to the District Court for more explicit findings. We are unable to accept the Government's contentions. Both rest upon an aspect of the "continuing jeopardy" concept that was articulated by Mr. Justice Holmes in his dissenting opinion in 195 U. S., at 14-17, but has never been adopted by a majority of this Court. Because until recently appeals by the Government have been authorized by statute only in specified and limited circumstances, most of our double jeopardy holdings have come in cases where the defendant has appealed from a judgment of conviction. See, e. g., Green v. United 55 U.S. 184 ; Trono v. United ; United 16 U. S., at 671-672. In those few cases that have reached this Court where the appellate process was initiated by the Government following a verdict of acquittal, the Court has found the appeal barred by the Double Jeopardy Clause. See, e. g., Fong In those cases, where the defendants had not been adjudged guilty, the Government's appeal was not permitted since further proceedings, usually in the form of a full retrial, would have followed. Here there was a judgment discharging the defendant, although we cannot say with assurance *70 whether it was, or was

Justice Rehnquist

majority

United States v. Jenkins

https://www.courtlistener.com/opinion/109201/united-states-v-jenkins/

cannot say with assurance *70 whether it was, or was not, a resolution of the factual issues against the Government. But it is enough for purposes of the Double Jeopardy Clause, and therefore for the determination of appealability under 18 U.S. C. 71, that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent's favor. To subject him to any further such proceedings at this stage would violate the Double Jeopardy Clause: "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity" Green v. United Affirmed. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment.