author: Mr. Justice White Mr. Justice Douglas,

text:
    UNITED STATES v. MARION et al.
    No. 70-19.
    Argued November 8, 1971
    Decided December 20, 1971

      Deputy Solicitor General Greenawalt argued the cause for the United States. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wilson, Acting Assistant Attorney General Petersen, Beatrice Rosenberg, and Mervyn Hamburg.

      Thomas Penfield Jackson argued the cause for appel-lees and filed a brief for appellee Marion. Benjamin Wright Gotten filed a brief for appellee Cratch.

      Alan Y. Cole and Isaac N. Groner filed a brief for the National Association of Criminal Defense Lawyers as amicus curiae urging affirmance.
   Mr. Justice White

delivered the opinion of the Court.

This appeal requires us to decide whether dismissal of a federal indictment was constitutionally required by reason of a period of three years between the occurrence of the alleged criminal acts and the filing of the indictment.

On April 21, 1970, the two appellees were indicted and charged in 19 counts with operating a business known as Allied Enterprises, Inc., which was engaged in the business of selling and installing home improvements such as intercom sets, fire control devices, and burglary detection systems. Allegedly, the business was fraudulently conducted and involved misrepresentations, alterations of documents, and deliberate nonperformance of contracts. The period covered by the indictment was March 15, 1965, to February 6, 1967; the earliest specific act alleged occurred on September 3, 1965, the latest on January 19, 1966.

On May 5, 1970, appellees filed a motion to dismiss the indictment “for failure to commence prosecution of the alleged offenses charged therein within such time as to afford [them their] rights to due process of law and to a speedy trial under the Fifth and Sixth Amendments to the Constitution of the United States.” No evidence was submitted, but from the motion itself and the arguments of counsel at the hearing on the motion, it appears that Allied Enterprises had been subject to a Federal Trade Commission cease-and-desist order on February 6, 1967, and that a series of articles appeared in the Washington Post in October 1967, reporting the results of that newspaper’s investigation of practices employed by home improvement firms such as Allied. The articles also contained purported statements of the then United States Attorney for the District of Columbia describing his office’s investigation of these firms and predicting that indictments would soon be forthcoming. Although the statements attributed to the United States Attorney did not mention Allied specifically, that company was mentioned in the course of the newspaper stories. In the summer of 1968, at the request of the United States Attorney’s office, Allied delivered certain of its records to that office, and in an interview there appellee Marion discussed his conduct as an officer of Allied Enterprises. The grand jury that indicted appellees was not impaneled until September 1969, appellees were not informed of the grand jury’s concern with them until March 1970, and the indictment was finally handed down in April.

Appellees moved to dismiss because the indictment was returned "an unreasonably oppressive and unjustifiable time after the alleged offenses.” They argued that the indictment required memory of many specific acts and conversations occurring several years before, and they contended that the delay was due to the negligence or indifference of the United States Attorney in investigating the ease and presenting it to a grand jury. No specific prejudice was claimed or demonstrated. The District Court judge dismissed the indictment for “lack of speedy prosecution” at the conclusion of the hearing and remarked that since the Government must have become aware of the relevant facts in 1967, the defense of the case “is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968.”

The United States appealed directly to this Court pursuant to 18 U. S. C. §3731 (1964 ed., Supp. V). We postponed consideration of the question of jurisdiction until the hearing on the merits of the case. We now hold that the Court has jurisdiction, and on the merits we reverse the judgment of the District Court.

I

Prior to its recent amendment, 18 U. S. C. § 3731 (1964 ed., Supp. V) authorized an appeal to this Court by the United States when in any criminal case a district court sustained “a motion in bar, when the defendant has not been put in jeopardy/’ It is plain to us that the appeal of the United States is within the purview of this section. Appellees had not been placed in jeopardy when the District Court rendered its judgment. The trial judge based his ruling on undue delay prior to indictment, a matter that was beyond the power of the Government to cure since re-indictment would not have been permissible under such a ruling. The motion to dismiss rested on grounds that had nothing to do with guilt or innocence or the truth of the allegations in the indictment but was, rather, a plea in the nature of confession and avoidance, that is, where the defendant does not deny that he has committed the acts alleged and that the acts were a crime but instead pleads that he cannot be prosecuted because of some extraneous factor, such as the running of the statute of limitations or the denial of a speedy trial. See United States v. Weller, 401 U. S. 264, 260 (1971). The motion rested on constitutional grounds exclusively, and neither the motion, the arguments of counsel, the Court’s oral opinion, nor its judgment mentioned Federal Rule of Criminal Procedure 48 (b), as a ground for dismissal. Our jurisdiction to hear this appeal has been satisfactorily established.

II

Appellees do not claim that the Sixth Amendment was violated by the two-month delay between the return of the indictment and its dismissal. Instead, they claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an “accused,” an event that occurred in this case only when the appellees were indicted on April 21, 1970.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial . . . .” On its face, the protection of the Amendment is activated only when a criminal prosecution has begun and extends only to those persons who have been “accused” in the course of that prosecution. These provisions would seem to afford no protection to those not yet accused, nor would they seem to require the Government to discover, investigate, and accuse any person within any particular period of time. The Amendment would appear to guarantee to a criminal defendant that the Government will move with the dispatch that is appropriate to assure him an early and proper disposition of the charges against him. “[T]he essential ingredient is orderly expedition and not mere speed.” Smith v. United States, 360 U. S. 1, 10 (1959).

Our attention is called to nothing in the circumstances surrounding the adoption of the Amendment indicating that it does not mean what it appears to say, nor is there more than marginal support for the proposition that, at the time of the adoption of the Amendment, the prevailing rule was that prosecutions would not be permitted if there had been long delay in presenting a charge. The framers could hardly have selected less appropriate language if they had intended the speedy trial provision to protect against pre-accusation delay. No opinions of this Court intimate support for appellees’ thesis, and the courts of appeals that have considered the question in constitutional terms have never reversed a conviction or dismissed an indictment solely on the basis of the Sixth Amendment’s speedy trial provision where only pre-indictment delay was involved.

Legislative efforts to implement federal and state speedy trial provisions also plainly reveal the view that these guarantees are applicable only after a person has been accused of a crime. The Court has pointed out that “[a]t the common law and in the absence of special statutes of limitations the mere failure to find an indictment will not operate to discharge the accused from the offense nor will a nolle prosequi entered by the Government or the failure of the grand jury to indict.” United States v. Cadarr, 197 U. S. 475, 478 (1905). Since it is “doubtless true that in some cases the power of the Government has been abused and charges have been kept hanging over the heads of citizens, and they have been committed for unreasonable periods, resulting in hardship,” the Court noted that many States “[w]ith a view to preventing such wrong to the citizen . . . [and] in aid of the constitutional provisions, National and state, intended to secure to the accused a speedy trial” had passed statutes limiting the time within which such trial must occur after charge or indictment. Characteristically, these statutes to which the Court referred are triggered only when a citizen is charged or accused. The statutes vary greatly in substance, structure, and interpretation, but a common denominator is that “[i]n no event . . . [does] the right to speedy trial arise before there is some charge or arrest, even though the prosecuting authorities had knowledge of the offense long before this.” Note, The Right to a Speedy Trial, 57 Col. L. Rev. 846, 848 (1957).

No federal statute of general applicability has been enacted by Congress to enforce the speedy trial provision of the Sixth Amendment, but Federal Rule of Criminal Procedure 48 (b), which has the force of law, authorizes dismissal of an indictment, information, or complaint “[i]f there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial . . . .” The rule clearly is limited to post-arrest situations.

Appellees’ position is, therefore, at odds with longstanding legislative and judicial constructions of the speedy trial provisions in both national and state constitutions.

III

It is apparent also that very little support for appel-lees’ position emerges from a consideration of the purposes of the Sixth Amendment’s speedy trial provision, a guarantee that this Court has termed “an important safeguard to prevent undue and oppressive incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the possibilities that long delay will impair the ability of an accused to defend himself.” United States v. Ewell, 383 U. S. 116, 120 (1966); see also Klopfer v. North Carolina, 386 Ü. S. 213, 221-226 (1967); Dickey v. Florida, 398 U. S. 30, 37-38 (1970). Inordinate delay between arrest, indictment, and trial may impair a defendant’s ability to present an effective defense. But the major evils protected against by the speedy trial guarantee exist quite apart from actual or possible prejudice to an accused’s defense. To legally arrest and detain, the Government must assert probable cause to believe the arrestee has committed a crime. Arrest is a public act that may seriously interfere with the defendant’s liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends. These considerations were substantial underpinnings for the decision in Klopfer v. North Carolina, supra; see also Smith v. Hooey, 393 U. S. 374, 377-378 (1969). So viewed, it is readily understandable that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.

Invocation, of the speedy trial provision thus need not await indictment, information, or other formal charge. But we decline to extend the reach of the amendment to the period prior to arrest. Until this event occurs, a citizen suffers no restraints on his liberty and is not the subject of public accusation: his situation does not compare with that of a defendant who has been arrested and held to answer. Passage of time, whether before or after arrest, may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself. But this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper context. Possible prejudice is inherent in any delay, however short; it may also weaken the Government’s case.

The law has provided other mechanisms to guard against possible as distinguished from actual prejudice resulting from the passage of time between crime and arrest or charge. As we said in United States v. Ewell, supra, at 122, “the applicable statute of limitations . . . is . . . the primary guarantee against bringing overly stale criminal charges.” Such statutes represent legislative assessments of relative interests of the State and the defendant in administering and receiving justice; they “are made for the repose of society and the protection of those who may [during the limitation] . . . have lost their means of defence.” Public Schools v. Walker, 9 Wall. 282, 288 (1870). These statutes provide predictability by specifying a limit beyond which there is an irrebuttable presumption that a defendant’s right to a fair trial would be prejudiced. As this Court observed in Toussie v. United States, 397 U. S. 112, 114-115 (1970):

“The purpose of a statute of limitations is to limit exposure to criminal prosecution to a certain fixed period of time following the occurrence of those acts the legislature has decided to punish by criminal sanctions. Such a limitation is designed to protect individuals from having to defend themselves against charges when the basic facts may have become obscured by the passage of time and to minimize the danger of official punishment because of acts in the far-distant past. Such a time limit may also have the salutary effect of encouraging law enforcement officials promptly to investigate suspected criminal activity.”

There is thus no need to press the Sixth Amendment into service to guard against the mere possibility that pre-accusation delays will prejudice the defense in a criminal case since statutes of limitation already perform that function.

Since appellees rely only on potential prejudice and the passage of time between the alleged crime and the indictment, see Part IV, infra, we perhaps need go no further to dispose of this case, for the indictment was the first official act designating appellees as accused individuals and that event occurred within the statute of limitations. Nevertheless, since a criminal trial is the likely consequence of our judgment and since appellees may claim actual prejudice to their defense, it is appropriate to note here that the statute of limitations does not fully define the appellees' rights with respect to the events occurring prior to indictment. Thus, the Government concedes that the Due Process Clause of the Fifth Amendment would require dismissal of the indictment if it were shown at trial that the pre-indictment delay in this case caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to gain tactical advantage over the accused. Cf. Brady v. Maryland, 373 U. S. 83 (1963); Napue v. Illinois, 360 U. S. 264 (1959). However, we need not, and could not now, determine when and in what circumstances actual prejudice resulting from pre-accusation delays requires the dismissal of the prosecution. Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay; and no one suggests that every delay-caused detriment to a defendant’s case should abort a criminal prosecution. To accommodate the sound administration of justice to the rights of the defendant to a fair trial will necessarily involve a delicate judgment based on the circumstances of each case. It would be unwise at this juncture to attempt to forecast our decision in such cases.

IV

In the case before us, neither appellee was arrested, charged, or otherwise subjected to formal restraint prior to indictment. It was this event, therefore, that transformed the appellees into “accused” defendants who are subject to the speedy trial protections of the Sixth Amendment.

The 38-month delay between the end of the scheme charged in the indictment and the date the defendants were indicted did not extend beyond the period of the applicable statute of limitations here. Appellees have not, of course, been able to claim undue delay pending trial, since the indictment was brought on April 21, 1970, and dismissed on June 8, 1970. Nor have appellees adequately demonstrated that the pre-indictment delay by the Government violated the Due Process Clause. No actual prejudice to the conduct of the defense is alleged or proved, and there is no showing that the Government intentionally delayed to gain some tactical advantage over appellees or to harass them. Appellees rely solely on the real possibility of prejudice inherent in any extended delay: that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees’ due process claims are speculative and premature.

Reversed.

Mr. Justice Douglas,

with whom Mr. Justice Brennan and Mr. Justice Marshall join,

concurring in the result.

I assume that if the three-year delay in this case had occurred after the indictment had been returned, the right to a speedy trial would have been impaired and the indictment would have to be dismissed. I disagree with the Court that the guarantee does not apply if the delay was at the pre-indictment stage of a case.

From March 15, 1965, to February 6, 1967, appellees acting through Allied Enterprises, Inc., sold and installed home intercom, fire control, and burglar detection devices in the District of Columbia metropolitan area. Their business endeavors were soon met with a spate of lawsuits seeking recovery for consumer fraud and, on February 6, 1967, their brief career was ended by a cease-and-desist order entered by the Federal Trade Commission. Public notoriety continued to surround appellees’ activities and, in a series of articles appearing in the Washington Post in September and October of 1967, their business was mentioned as being under investigation by the United States Attorney. The special grand jury that was impaneled on October 9, 1967, to investigate consumer fraud did not, however, return an indictment against appellees. Sometime between the summer of 1968 and January 1969, appellees delivered their business records to the United States Attorney, but an indictment was not returned against them until April 21, 1970. The indictment charged some 19 counts of mail fraud, wire fraud, and transportation of falsely made securities in interstate commerce all between September 3, 1965, and January 19, 1966.

Appellees moved “to dismiss the indictment for failure to commence prosecution . . . within such time as to [satisfy the] . . . rights to due process of law and to a speedy trial . . . .” The United States Attorney sought to excuse the delay, alleging that his office had been understaffed at the time and that it had given priority to other types of crimes. The District Court granted appellees’ motion and the United States appealed. 18 U. S. C. § 3731 (1964 ed., Supp. V).

The majority says “that it is either a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision . . . Ante, at 320.

The Sixth Amendment, to be sure, states that “the accused shall enjoy the right to a speedy and public trial.” But the words “the accused,” as I understand them in their Sixth Amendment setting, mean only the person who has standing to complain of prosecutorial delay in seeking an indictment or filing an information. The right to a speedy trial is the right to be brought to trial speedily which would seem to be as relevant to pre-indictment delays as it is to post-indictment delays. Much is made of the history of the Sixth Amendment as indicating that the speedy trial guarantee had no application to pre-prosecution delays.

There are two answers to that proposition. First, British courts historically did consider delay as a condition to issuance of an information.

Lord Mansfield held in Rex v. Robinson, 1 Black. W. 541, 542, 96 Eng. Rep. 313 (K. B. 1765), that the issuance of an information was subject to time limitations: “If delayed, the delay must be reasonably accounted for.” In Regina v. Hext, 4 Jurist 339 (Q. B. 1840), an information was refused where a whole term of court had passed since the alleged assault took place. Accord: Rex v. Marshall, 13 East 322, 104 Eng. Rep. 394 (K. B. 1811).

Baron Alderson said in Regina v. Robins, 1 Cox’s C. C. 114 (Somerset Winter Assizes 1844), where there was a two-year delay in making a charge of bestiality:

“It is monstrous to put a man on his trial after such a lapse of time. How can he account for his conduct so far back? If you accuse a man of a crime the next day, he may be enabled to bring forward his servants and family to say where he was and what he was about at the time; but if the charge be not preferred for a year or more, how can he clear himself? No man’s life would be safe if such a prosecution were permitted. It would be very unjust to put him on his trial.”

Second, and more basically, the 18th century criminal prosecution at the common law was in general commenced in a completely different way from that with which we are familiar today. By the common law of England which was brought to the American colonies, the ordinary criminal prosecution was conducted by a private prosecutor, in the name of the King. In case the victim of the crime or someone interested came forward to prosecute, he retained his own counsel and had charge of the case as in the usual civil proceeding. See G. Dession, Criminal Law, Administration and Public Order 356 (1948). Procedurally, the criminal prosecution was commenced by the filing of a lawsuit, and thereafter the filing of an application for criminal prosecution or rule nisi or similar procedure calling for the defendant to show cause why he should not be imprisoned. The English common law, with which the Framers were familiar, conceived of a criminal prosecution as being commenced prior to indictment. Thus in that setting the individual charged as the defendant in a criminal proceeding could and would be an “accused” prior to formal indictment.

The right to a speedy trial, which we have characterized “as fundamental as any of the rights secured by the Sixth Amendment,” Klopfer v. North Carolina, 386 U. S. 213, 223, protects several demands of criminal justice: the prevention of undue delay and oppressive incarceration prior to trial; the reduction of anxiety and concern accompanying public accusation; and limiting the possibilities that long delay will impair the ability of an accused to defend himself. Smith v. Hooey, 393 U. S. 374, 377-378 (1969). See also People v. Prosser, 309 N. Y. 353, 356, 130 N. E. 2d 891, 894 (1955). The right also serves broader interests:

“The Speedy Trial Clause protects societal interests, as well as those of the accused. The public is concerned with the effective prosecution of criminal cases, both to restrain those guilty of crime and to deter those contemplating it. Just as delay may impair the ability of the accused to defend himself, so it may reduce the capacity of the government to prove its case. See Ponzi v. Fessenden, 258 U. S. 254, 264 (1922). Moreover, while awaiting trial, an accused who is at large may become a fugitive from justice or commit other criminal acts. And the greater the lapse of time between commission of an offense and the conviction of the offender, the less the deterrent value of his conviction.” Dickey v. Florida, 398 U. S. 30, 42 (1970) (Brennan, J., concurring).

At least some of these values served by the right to a speedy trial are not unique to any particular stage of the criminal proceeding. See Note, 43 N. Y. U. L. Rev. 722, 725-726 (1968); Note, 77 Yale L. J. 767, 780-783 (1968) ; Comment, 11 Ariz. L. Rev. 770, 774-776 (1969). Undue delay may be as offensive to the right to a speedy trial before as after an indictment or information. The anxiety and concern attendant on public accusation may weigh more heavily upon an individual who has not yet been formally indicted or arrested for, to him, exoneration by a jury of his peers may be only a vague possibility lurking in the distant future. Indeed, the protection underlying the right to a speedy trial may be denied when a citizen is damned by clandestine innuendo and never given the chance promptly to defend himself in a court of law. Those who are accused of crime but never tried may lose their jobs or their positions of responsibility, or become outcasts in their communities.

The impairment of the ability to defend oneself may become acute because of delays in the pre-indictment stage. Those delays may result in the loss of alibi witnesses, the destruction of material evidence, and the blurring of memories. At least when a person has been accused of a specific crime, he can devote his powers of recall to the events surrounding the alleged occurrences. When there is no formal accusation, however, the State may proceed methodically to build its case while the prospective defendant proceeds to lose his.

The duty which the Sixth Amendment places' on Government officials to proceed expeditiously with criminal prosecutions would have little meaning if those officials could determine when that duty was to commence. To be sure, “[t]he right of a speedy trial is necessarily relative. It is consistent with delays and depends upon circumstances.'’ Beavers v. Haubert, 198 U. S. 77, 87 (1905). But it is precisely because this right is relative that we should draw the line so as not to condone illegitimate delays whether at the pre- or the post-indictment stage.

Our decisions do not support the limitations of the right to a speedy trial adopted in the majority’s conclusion that “the [Sixth] amendment [does not extend] to the period prior to arrest.” Ante, at 321. In Miranda v. Arizona, 384 U. S. 436, 444 (1966), we held that it was necessary for the police to advise of the right to counsel in the pre-indictment situation where “a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” That case, like the present one, dealt with one of the rights enumerated in the Sixth Amendment, to which an “accused” was entitled. We were not then concerned with whether an “arrest” or an “indictment” was necessary for a person to be an “accused” and thus entitled to Sixth Amendment protections. We looked instead to the nature of the event and its effect on the rights involved. We applied the Miranda rule even though there was no “arrest,” but only an examination of the suspect while he was in his bed at his boarding house, the presence of the officers making him “in custody.” Orozco v. Texas, 394 U. S. 324, 327. We should follow the same approach here and hold that the right to a speedy trial is denied if there were years of unexplained and inexcusable pre-indictment delay.

Dickey v. Florida, supra, similarly demonstrates the wisdom of avoiding today’s mechanical approach to the application of basic constitutional guarantees. While he was in custody on an unrelated federal charge, the petitioner was identified by a witness to the robbery. Petitioner remained in federal custody, but the State did not seek to prosecute him until September 1, 1967, when he moved to dismiss the detainer warrant which had been lodged against him. An information was then filed on December 15, 1967, and petitioner was tried on February 13, 1968. Although the trial took place less than two months after the filing of the information, we held that there had been a denial of the right to a speedy trial because of the delay of more than seven years between the crime and the information.

In a concurring opinion, Mr. Justice Brennan discussed the broader questions raised by that case:

“When is governmental delay reasonable? Clearly, a deliberate attempt by the government to use delay to harm the accused, or governmental delay that is 'purposeful or oppressive,’ is unjustifiable. . . . The same may be true of any governmental delay that is unnecessary, whether intentional or negligent in origin. A negligent failure by the government to ensure speedy trial is virtually as damaging to the interests protected by the right as an intentional failure; when negligence is the cause, the only interest necessarily unaffected is our common concern to prevent deliberate misuse of the criminal process by public officials. Thus the crucial question in determining the legitimacy of governmental delay may be whether it might reasonably have been avoided— whether it was unnecessary. To determine the necessity for governmental delay, it would seem important to consider, on the one hand, the intrinsic importance of the reason for the delay, and, on the other, the length of the delay and its potential for prejudice to interests protected by the speedy-trial safeguard. For a trivial objective, almost any delay could be reasonably avoided. Similarly, lengthy delay, even in the interest of realizing an important objective, would be suspect.” 398 U. S., at 51-52.

In the present case, two to three years elapsed between the time the District Court found that the charges could and should have been brought and the actual return of the indictment. The justifications offered were that the United States Attorney’s office was “not sufficiently staffed to proceed as expeditiously” as desirable and that priority had been given to other cases. Appellees say that the present indictment embraces counts such as an. allegedly fraudulent telephone conversation made on December 16, 1965. They argue that there is a great likelihood that the recollection of such events will be blurred or erased by the frailties of the human memory. If this were a simpler crime, I think the British precedent which I have cited would warrant dismissal of the indictment because of the speedy trial guarantee of the Sixth Amendment. But we know from experience that the nature of the crime charged here often has vast interstate aspects, the victims are often widely scattered and hard to locate, and the reconstruction of the total scheme of the fraudulent plan takes time. If we applied the simpler rule that was applied in simpler days, we would be giving extraordinary advantages to organized crime as well as others who use a farflung complicated network to perform their illegal activities. I think a three-year delay even in that kind of case goes to the edge of a permissible delay. But on the bare bones of this record I hesitate to say that the guarantee of a speedy trial has been violated. Unless appellees on remand demonstrate actual prejudice, I would agree that the prosecution might go forward. Hence I concur in the result.

       App. 39. The court’s oral decision consisted of the following statement: “It appears to the Court that the matters complained of occurred between March 1965 and January 1966. It further appears that these matters were known from early 1967 or a matter of common knowledge in late 1967. There appears no reason why a three-year delay from 1967 was justified by the necessity of research and examination delving into the various transactions, they could have been discovered and handled much, much sooner, certainly probably during the year 1967 or at the latest early 1968.
      “The defendants have been indicted on 19 counts, each of which I believe carries a ten-year sentence, each of which is a separate, distinct transaction which would justify consecutive sentences, and by the very nature of this outrageous scheme if the allegations could be believed, the ability to remember, to build up in one’s recollection, to produce the necessary defense, is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968.
      “The Court, therefore, views that there has been a lack of speedy prosecution in this case, and will grant the motion to dismiss.” Ibid.

       The Criminal Appeals Act, 18 U. S. C. §3731 (1964 ed., Supp. V), at the time of this appeal, provided in relevant part:
      “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:
      “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.”
      The Omnibus Crime Control Act of 1970, § 14 (a), 84 Stat. 1890, amended the Criminal Appeals Act to read in pertinent part as follows:
      “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”
      This amendment thus terminated the Court’s appellate jurisdiction of Government appeals from district court judgments in federal criminal cases. Pending cases were not affected by the amendment, however, since subsection (b) of § 14 provides:
      “The amendments made by this section shall not apply with respect to any criminal case begun in any district court before the effective date of this section.”
      The Omnibus Crime Control Act of 1970 took effect on January 2, 1971; the appellees in this case were indicted on April 21, 1970.

       401 U. S. 934 (1971).

       Rule 48(b) provides that: “If there is unnecessary delay in presenting the charge to a grand jury or in filing an information against a defendant who has been held to answer to the district court, or if there is unnecessary delay in bringing a defendant to trial, the court may dismiss the indictment, information or complaint.” In any event, it is doubtful that Rule 48 (b) applies in the circumstances of this case, where the indictment was the first formal act in the criminal prosecution of these appellees. See cases cited in n. 11, infra.

       The history of the speedy trial provision is sparse and unillu-minating with respect to the issue before us. See F. Heller, The Sixth Amendment to the Constitution of the United States 31-32, 34 (1951); R. Rutland, The Birth of the Bill of Rights, 1776-1791, p. 202 (1955); I. Brant, The Bill of Rights 223 (1965); Dumbauld, State Precedents for the Bill of Rights, 7 J. Pub. L. 323, 335 n. 91 (1958); Note, The Right to a Speedy Trial, 20 Stan. L. Rev. 476, 484 (1968).

       A single case that antedates the Bill of Rights, Rex v. Robinson, 1 Black. W. 541, 96 Eng. Rep. 313 (K. B. 1765), and three 19th century British cases, Rex v. Marshall, 13 East 322, 104 Eng. Rep. 394 (K. B. 1811); Regina v. Hext, 4 Jurist 339 (Q. B. 1840); Regina v. Robins, 1 Cox’s C. C. 114 (Somerset Winter Assizes 1844), are cited for the proposition that the framers intended to protect against pre-indictment delay by enacting the Sixth Amendment. These cases fail to establish a definite rule that the Founders sought to constitutionalize, however, and the Government’s argument concerning the history of the Sixth Amendment, while not dispositive, is more persuasive. Brief for the United States 15-18. The Government points out that the Habeas Corpus Act of 1679, 31 Car. 2, c. 2, provided for "more speedy Relief of all Persons imprisoned for any such criminal or supposed criminal Matters" and required that persons jailed for felonies or treason be brought to trial upon their own motion within two terms of court or be discharged on bail. The Act does not allude to delay before arrest. Most of the States that ratified the Bill of Rights had either adopted the British Act or passed a similar law, Petition of Provoo, 17 F. R. D. 183, 197 n. 6 (Md.), aff’d sub nom. United States v. Provoo, 350 U. S. 857 (1955), and many of them had speedy trial provisions in their own constitutions which were modeled on the British Act. Article 8 of the Virginia Declaration of Rights, which may have been the model Madison used for the Sixth Amendment, Rutland, supra, n. 5, at 202, secured the right to a speedy trial in "criminal prosecutions" where "a man hath a right to demand the cause and nature of his accusation." See generally Heller, supra, n. 5, at 23. Insofar as this meager evidence is probative at all, it seems to imply that the Sixth Amendment was designed to assure that those accused of crimes would have their trial without undue delay.

       This Court has interpreted the Sixth Amendment’s speedy trial guarantee in only a small number of cases. See, e. g., Dickey v. Florida, 398 U. S. 30 (1970); Smith v. Hooey, 393 U. S. 374 (1969); Klopfer v. North Carolina, 386 U. S. 213 (1967); United States v. Ewell, 383 U. S. 116 (1966); Pollard v. United States, 352 U. S. 354 (1957); United States v. Provoo, supra, n. 6; Beavers v. Haubert, 198 U. S. 77 (1905). See also Smith v. United States, 360 U. S. 1, 10 (1959).

       Most courts of appeals have recognized the Sixth Amendment right to a speedy trial only after a prosecution has been formally initiated or have held that the sole safeguard against pre-indictment delay is the relevant statute of limitations: United States v. Feinberg, 383 F. 2d 60, 65 (CA2 1967); Carlo v. United States, 286 F. 2d 841, 846 (CA2), cert. denied, 366 U. S. 944 (1961); Pitts v. North Carolina, 395 F. 2d 182, 185 n. 3 (CA4 1968); United States v. Durham, 413 F. 2d 1003, 1004 (CA5 1969); Kroll v. United States, 433 F. 2d 1282, 1286 (CA5 1970), cert. denied, 402 U. S. 944 (1971); United States v. Grayson, 416 F. 2d 1073, 1076-1077 (CA5 1969); United States v. Wilson, 342 F. 2d 782, 783 (CA5), cert. denied, 382 U. S. 860 (1965); Donnell v. United States, 229 F. 2d 560, 567 (CA5 1956); Harlow v. United States, 301 F. 2d 361, 366 (CA5), cert. denied, 371 U. S. 814 (1962); Bruce v. United States, 351 F. 2d 318, 320 (CA5 1965), cert. denied, 384 U. S. 921 (1966); Hoopengarner v. United States, 270 F. 2d 465, 469 (CA6 1959); United States v. Harris, 412 F. 2d 471, 473 (CA6 1969); Lothridge v. United States, 441 F. 2d 919, 922 (CA6 1971); Parker v. United States, 252 F. 2d 680, 681 (CA6), cert. denied, 356 U. S. 964 (1958); Edmaiston v. Neil, 452 F. 2d 494 (CA6 1971); United States v. Panczko, 367 F. 2d 737, 738-739 (CA7 1966); Terlikowski v. United States, 379 F. 2d 501, 504 (CA8), cert. denied, 389 U. S. 1008 (1967); Foley v. United States, 290 F. 2d 562, 565 (CA8 1961); Benson v. United States, 402 F. 2d 576, 579 (CA9 1968); Venus v. United States, 287 F. 2d 304, 307 (CA9 1960), rev’d per curiam on other grounds, 368 U. S. 345 (1961); D’Aquino v. United States, 192 F. 2d 338, 350 (CA9 1951), cert. denied, 343 U. S. 935 (1952); United States v. Reed, 413 F. 2d 338, 340 (CA10 1969), cert. denied sub nom. Sartain v. United States, 397 U. S. 954 (1970); Nickens v. United States, 116 U. S. App. D. C. 338, 340, 323 F. 2d 808, 810 (1963), cert. denied, 379 U. S. 905 (1964). Some courts of appeals have stated that pre-indictment delay may be cause for dismissal but they have seemed to treat the question primarily as one of due process (although the Sixth Amendment is occasionally mentioned) and have required a showing of actual prejudice: Schlinsky v. United States, 379 F. 2d 735, 737 (CA1 1967); Fleming v. United States, 378 F. 2d 502, 504 (CA1 1967); United States v. Capaldo, 402 F. 2d 821, 823 (CA2 1968), cert. denied, 394 U. S. 989 (1969); United States v. Simmons, 338 F. 2d 804, 806 (CA2 1964), cert. denied, 380 U. S. 983 (1965); United States v. Holiday, 319 F. 2d 775, 776 (CA2 1963); United States v. Hammond, 360 F. 2d 688, 689 (CA2 1966); United States v. Dickerson, 347 F. 2d 783, 784 (CA2 1965); United States v. Rivera, 346 F. 2d 942, 943 (CA2 1965); United States v. Sanchez, 361 F. 2d 824, 825 (CA2 1966); United States v. Harbin, 377 F. 2d 78, 79, 80 n. 1 (CA4 1967); United States v. Lee, 413 F. 2d 910, 912-913 (CA7 1969), cert. denied, 396 U. S. 1022 (1970); United States v. Napue, 401 F. 2d 107, 114-115 (CA7 1968), cert. denied, 393 U. S. 1024 (1969); Lucas v. United States, 363 F. 2d 500, 502 (CA9 1966); Sanchez v. United States, 341 F. 2d 225, 228 n. 3 (CA9), cert. denied, 382 U. S. 856 (1965); Acree v. United States, 418 F. 2d 427, 430 (CA10 1969). Although Petition of Provoo, 17 F. R. D. 183 (Md.), aff’d sub nom. United States v. Provoo, 350 U. S. 857 (1955), is sometimes cited for the proposition that pre-indictment delay will justify dismissal, the District Court explicitly stated that it considered this delay to be relevant only on the issue of whether the defendant had been denied a fair trial. 17 F. R. D., at 202. In Taylor v. United States, 99 U. S. App. D. C. 183, 238 F. 2d 259 (1956), a conviction was vacated where there had been a six-year delay between the crime (housebreaking) and trial, 3 1/2 years of which was a delay between crime and indictment; the defendant had been in prison on another charge during this time, and the defendant was substantially prejudiced in his ability to defend against the housebreaking charge. The Court of Appeals stated: "We do not rely on the mere lapse of time between the commission of the offenses and the date of indictment, considered by itself, for that is governed by the statute of limitations. It is the combination of the factors set forth above [post-indictment delay, prejudice] which motivates our decision." Id., at 186, 238 F. 2d, at 262. In three instances district courts have held, however, that "delay" for Sixth Amendment purposes must be computed from the time of the crime or from the time when the Government considers the defendants’ actions criminal, and have dismissed indictments for excessive delay. United States v. Parrott, 248 F. Supp. 196 (DC 1965); United States v. Wahrer, 319 F. Supp. 585 (Alaska 1970); United States v. Burke, 224 F. Supp. 41 (DC 1963). There is a unique line of cases in the District of Columbia Circuit concerning pre-indictment delay in narcotics cases where the Government relies on secret informers and (frequently) on single transactions. These cases take a more rigid stance against such delays, but they are based on the Court of Appeals’ purported supervisory jurisdiction and not on the Sixth Amendment. See, e. g., Ross v. United States, 121 U. S. App. D. C. 233, 238, 349 F. 2d 210, 215 (1965); Bey v. United States, 121 U. S. App. D. C. 337, 350 F. 2d 467 (1965); Powell v. United States, 122 U. S. App. D. C. 229, 231, 352 F. 2d 705, 707 (1965); Tynan v. United States, 126 U. S. App. D. C. 206, 208, 376 F. 2d 761, 763 (1967) (explicitly limiting Ross).

       The provision the Court dealt with in Cadarr was § 939 of the then District of Columbia Code adopted by Congress, 31 Stat. 1342. That section provided that if any person “charged with a criminal offense shall have been committed or held to bail,” the grand jury must act within a specified time or the accused would be set free. The provision remains in the present code as § 23-102, 84 Stat. 605, and then, as now, does not purport to reach behind the time of charge, commitment, or holding for bail.

       See, e. g., Ill. Rev. Stat., c. 38, § 103-5 (a) (1969); Pa. Stat. Ann., Tit. 19, §781 (1964); Cal. Pen. Code § 1382 (1970); Va. Code Ann. § 19.1-191 (1960); Nev. Rev. Stat. § 178.556 (1967). A more comprehensive list of such state statutes appears in American Bar Association Project on Standards for Criminal Justice, Speedy Trial 14-15 (Approved Draft 1968). The Administrative Board of the Judicial Conference of the State of New York recently promulgated rules on trial delay and detention which cover defendants who are “held in custody” and which begin computation of delay periods from the date of arrest. Rule 29.1, New York Law Journal, April 30, 1971, p. 1, col. 6. See generally Note, The Right to a Speedy Trial, 20 Stan. L. Rev. 476 (1968); Note, Pre-Arrest Delay: Evolving Due Process Standards, 43 N. Y. U. L. Rev. 722 (1968); Note, Constitutional Limits on Pre-Arrest Delay, 51 Iowa L. Rev. 670 (1966); Note, The Lagging Right to a Speedy Trial, 51 Ya. L. Rev. 1587 (1965); Note, Justice Overdue — Speedy Trial for the Potential Defendant, 5 Stan. L. Rev. 95 (1952).
      The rules that the Second Circuit en banc recently adopted in United States ex rel. Frizer v. McMann, 437 F. 2d 1312 (CA2 1971), which appear in Appendix, 28 U. S. C. A. (May 1971 Supp.), require trial within a specified period but apply to “all persons held in jail prior to trial” and “defendants” in “all other criminal cases.” Rule 2. Rule 4 provides that: “In all cases the government must be ready for trial within six months from the date of the arrest, service of summons, detention, or the filing of a complaint or of a formal charge upon which the defendant is to be tried (other than a sealed indictment), whichever is earliest.” See generally Comment, Speedy Trials and the Second Circuit Rules Regarding Prompt Disposition of Criminal Cases, 71 Col. L. Rev. 1059 (1971).
      Cf. also S. 895, 92d Cong., 1st Sess., a bill intended “[t]o give effect to the sixth amendment right to a speedy trial for persons charged with offenses against the United States.” The protections of the bill are engaged “within sixty days from the date the defendant is arrested or a summons is issued, except that if an information or indictment is filed, then within sixty days from the date of such filing.” §3161 (b)(1).

        Nickens v. United States, supra, at 339, 323 F. 2d, at 809; Harlow v. United States, supra; Hoopengarner v. United States, supra; United States v. Hoffa, 205 F. Supp. 710, 720-721 (SD Fla. 1962).

       In its Standards Relating to Speedy Trial, n. 10, supra, at 6, the ABA defined the time at which the beginning of the delay period should be computed as
      “the date the charge is filed, except that if the defendant has been continuously held in custody or on bail or recognizance until that date to answer for the same crime or a crime based on the same conduct or arising from the same criminal episode, then the time for trial should commence running from the date he was held to answer.” Rule 2.2 (a).
      Under the ABA Standards, after a defendant is charged, it is contemplated that his right to a speedy trial would be measured by a statutory time period excluding necessary and other justifiable delays; there is no necessity to allege or show prejudice to the defense. Rule 2.1, ibid.

       Extending a Sixth Amendment right to a period prior to indictment or holding to answer would also create procedural problems: “[W]hile other rights may be violated by delay in arrest or charge, it does not follow that the time for trial should be counted from any date of inaction preceding filing of the charge or holding the defendant to answer. To recognize a general speedy trial right commencing as of the time arrest or charging was possible would have unfortunate consequences for the operation of the criminal justice system. Allowing inquiry into when the police could have arrested or when the prosecutor could have charged would raise difficult problems of proof. As one court said, ‘the Court would be engaged in lengthy hearings in every case to determine whether or not the prosecuting authorities had proceeded diligently or otherwise.’ [United States v. Port, Crim. No. 33162, (ND Cal., June 2, 1952). Quoted in Note, Justice Overdue — Speedy Trial for the Potential Defendant, 5 Stan. L. Rev. 95, 101-102, n. 34.]” Commentary to Rule 2.2 (a), Speedy Trial, n. 10, supra, at 23.

       The Court has indicated that criminal statutes of limitation are to be liberally interpreted in favor of repose. United States v. Habig, 390 U. S. 222, 227 (1968). The policies behind civil statutes of limitation are in many ways similar. They "represent a public policy about the privilege to litigate," Chase Securities Corp. v. Donaldson, 325 U. S. 304, 314 (1945), and their underlying rationale is "to encourage promptness in the bringing of actions, that the parties shall not suffer by loss of evidence from death or disappearance of witnesses, destruction of documents or failure of memory." Missouri, Kansas & Texas R. Co. v. Harriman, 227 U. S. 657, 672 (1913). Such statutes "are founded upon the general experience of mankind that claims, which are valid, are not usually allowed to remain neglected," Riddlesbarger v. Hartford Insurance Co., 7 Wall. 386, 390 (1869), they "promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared," Order of Railroad Telegraphers v. Railway Express Agency, 321 U. S. 342, 348-349 (1944), and they "are primarily designed to assure fairness to defendants. . . . [C]ourts ought to be relieved of the burden of trying stale claims when a plaintiff has slept on his rights." Burnett v. New York Central R. Co., 380 U. S. 424, 428 (1965). As in the criminal law area, such statutes represent a legislative judgment about the balance of equities in a situation involving the tardy assertion of otherwise valid rights: "The theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend within the period of limitation and that the right to be free of stale claims in time comes to prevail over the right to prosecute them." Order of Railroad Telegraphers v. Railway Express Agency, supra, at 349.

       "Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within five years next after such offense shall have been committed.” 18 U. S. C. § 3282.

       Brief for the United States 26-27.

       A number of courts of appeals have considered the question. See, e. g., Benson v. United States, 402 F. 2d, at 580; Schlinsky v. United States, supra; United States v. Capaldo, supra; United States v. Lee, 413 F. 2d, at 913; United States v. Wilson, supra; United States v. Harbin, 377 F. 2d, at 80; Acree v. United States, supra; Nickens v. United States, supra, at 340 n. 2, 323 F. 2d, at 810 n. 2.

       Cf. Hoffa v. United States, 385 U. S. 293, 310 (1966):
      “There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause tu arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”

       In dismissing the indictment, the District Court said:
      “It appears to the Court that the matters complained of occurred between March 1965 and January 1966. It further appears that these matters were known from early 1967 or a matter of common knowledge in late 1967. There appears no reason why a three-year delay from 1967 was justified by the necessity of research and examination delving into the various transactions, they could have been discovered and handled much, much sooner, certainly probably during the year 1967 or at the latest early 1968.
      “The defendants have been indicted on 19 counts, each of which I believe carries a ten-year sentence, each of which is a separate, distinct transaction which would justify consecutive sentences, and by the very nature of this outrageous scheme if the allegations could be believed, the ability to remember, to build up in one’s recollection, to produce the necessary defense, is bound to have been seriously prejudiced by the delay of at least some three years in bringing the prosecution that should have been brought in 1967, or at the very latest early 1968.
      “The Court, therefore, views that there has been a lack of speedy prosecution in this case, and will grant the motion to dismiss.”

       See 1 J. Stephen, History of the Criminal Law of England 493-496 (1883):
      “In England, and, so far as I know, in England and some English colonies alone, the prosecution of offences is left entirely to private persons, or to public officers who act in their capacity of private persons and who have hardly any legal powers beyond those which belong to private persons.” Id., at 493.
      For an annotated version of the inception and evolution of the British system, see M. Schwartz, Cases and Materials on Professional Responsibility and the Administration of Criminal Justice 2-3 (Nat. Council on Legal Clinics 1961).

       Judge Wright recognized this in his concurring opinion in Nickens v. United States, 116 U. S. App. D. C. 338, 343, 323 F. 2d 808, 813 (1963):
      “Indeed, a suspect may be at a special disadvantage when complaint or indictment, or arrest, is purposefully delayed. With no knowledge that criminal charges are to be brought against him, an innocent man has no reason to fix in his memory the happenings on the day of the alleged crime. Memory grows dim with the passage of time. Witnesses disappear. With each day, the accused becomes less able to make out his defense. If, during the delay, the Government’s case is already in its hands, the balance of advantage shifts more in favor of the Government the more the Government lags. Under our constitutional system such a tactic is not available to police and prosecutors.”

       “[A] preprosecution delay can result in the loss of physical evidence, the unavailability of potential witnesses, and the impairment of the ability of the prospective defendant and his witnesses to remember the events in question. Indeed, the possibility of such prejudice may be greater in preprosecution-delay cases than in post indictment-delay cases. The typical prospective defendant is probably unaware of the fact that criminal charges will eventually be brought against him. Thus, he will have no reason to take measures to preserve his memory or the memories of his witnesses. ‘The importance of these considerations becomes clear when measured against the state’s ability to collect and document evidence as it carries out its criminal investigation, thereby preserving its probative firepower until the time of eventual arrest.’
      “The causal factor also can be present in a preprosecution delay. Many preprosecution delays are caused by the reluctance of the government to terminate an undercover investigation. If the knowledge obtained by an undercover agent is used as the basis for an arrest or for the issuance of a complaint, the identity of the agent may be exposed and his effectiveness destroyed. Consequently, the government will often delay arresting an individual against whom its case is complete if the agent is still obtaining evidence against other individuals. In such a situation, the government has made a deliberate choice for a supposed advantage. While this advantage is arguably not sought vis-a-vis the defendant asserting the speedy-trial claim, the fact remains that the advantage arises out of a deliberate and avoidable choice on the part of law-enforcement authorities.” Note, 20 Stan. L. Rev. 476, 489.

       The District Judge pointed out that the then Assistant Attorney General had indicated “that he didn’t need any more help” and that the United States Attorney retreated from this factual assertion.


source: Caselaw Access Project

author: Mr. Justice Marshall Mr. Justice Blackmun,

license: Public Domain

text:
    UNITED STATES v. BASS
    No. 70-71.
    Argued October 18, 1971
    Decided December 20, 1971

      Roger A. Pauley argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Wilson, Samuel Huntington, and Beatrice Rosenberg.

      William E. Hellerstein, by appointment of the Court, 402 U. S. 927, argued the cause for respondent. With him on the brief was Phylis Skloot Bamberger.

   Mr. Justice Marshall

delivered the opinion of the Court.

Respondent. was convicted in the Southern District of New York of possessing firearms in violation of Title VII of the Omnibus Crime Control and Safe Streets Act of 1968, 18 U. S. C. App. § 1202 (a). In pertinent part, that statute reads:

“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.”

The evidence showed that respondent, who had previously been convicted of a felony in New York State, possessed on separate occasions a pistol and then a shotgun. There was no allegation in the indictment and no attempt by the prosecution to show that either firearm had been possessed “in commerce or affecting commerce.” The Government proceeded on the assumption that § 1202 (a)(1) banned all possessions and receipts of firearms by convicted felons, and that no connection with interstate commerce had to be demonstrated in individual cases.

After his conviction, respondent unsuccessfully moved for arrest of judgment on two primary grounds: that the statute did not reach possession of a firearm not shown to have been “in commerce or affecting commerce,” and that, if it did, Congress had overstepped its constitutional powers under the Commerce Clause. 308 F. Supp. 1385. The Court of Appeals reversed the conviction, being of the view that if the Government’s construction of the statute were accepted, there would be substantial doubt about the statute’s constitutionality. 434 F. 2d 1296. We granted certiorari to resolve a conflict among lower courts over the proper reach of the statute. We affirm the judgment of the court below, but for substantially different reasons. We conclude that § 1202 is ambiguous in the critical respect. Because its sanctions are criminal and because, under the Government’s broader reading, the statute would mark a major inroad into a domain traditionally left to the States, we refuse to adopt the broad reading in the absence of a clearer direction from Congress.

I

Not wishing “to give point to the quip that only when legislative history is doubtful do you go to the statute,” we begin by looking to the text itself. The critical textual question is whether the statutory phrase “in commerce or affecting commerce” applies to “possesses” and “receives” as well as to “transports.” If it does, then the Government must prove as an essential element of the offense that a possession, receipt, or transportation was “in commerce or affecting commerce” — a burden not undertaken in this prosecution for possession.

While the statute does not read well under either view, "the natural construction of the language" suggests that the clause "in commerce or affecting commerce" qualifies all three antecedents in the list. Porto Rico Railway, Light & Power Co. v. Mor, 253 U. S. 345, 348 (1920). Since "in commerce or affecting commerce" undeniably applies to at least one antecedent, and since it makes sense with all three, the more plausible construction here is that it in fact applies to all three. But although this is a beginning, the argument is certainly neither overwhelming nor decisive.

In a more significant respect, however, the language of the statute does provide support for respondent’s reading. Undeniably, the phrase “in commerce or affecting commerce” is part of the “transports” offense. But if that phrase applies only to “transports,” the statute would have a curious reach. While permitting transportation of a firearm unless it is transported “in commerce or affecting commerce,” the statute would prohibit all possessions of firearms, and both interstate and intrastate receipts. Since virtually all transportations, whether interstate or intrastate, involve an accompanying possession or receipt, it is odd indeed to argue that on the one hand the statute reaches all possessions and receipts, and on the other hand outlaws only interstate transportations. Even assuming that a person can “transport” a firearm under the statute without possessing or receiving it, there is no reason consistent with any discernible purpose of the statute to apply an interstate commerce requirement to the “transports” offense alone. In short, the Government has no convincing explanation for the inclusion of the clause “in commerce or affecting commerce” if that phrase only applies to the word “transports.” It is far more likely that the phrase was meant to apply to “possesses” and “receives” as well as “transports.” As the court below noted, the inclusion of such a phrase “mirror [s] the approach to federal criminal jurisdiction reflected in many other federal statutes.”

Nevertheless, the Government argues that its reading is to be preferred because the defendant’s narrower interpretation would make Title YII redundant with Title IV of the same Act. Title IV, inter alia, makes it a crime for four categories of people — including those convicted of a crime punishable for a term exceeding one year — “to ship or transport any firearm or ammunition in interstate or foreign commerce . . . [or] to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 18 U. S. C. §§ 922 (g) and (h). As Senator Long, the sponsor of Title VII, represented to Senator Dodd, the sponsor of Title IV, Title VII indeed does complement Title IV. 114 Cong. Rec. 14774; see also 114 Cong. Rec. 16286. Respondent’s reading of Title VII is fully consistent with this view. First, although subsections of the two Titles do address their prohibitions to some of the same people, each statute also reaches substantial groups of people not reached by the other. Secondly, Title VII complements Title IV by punishing a broader class of behavior. Even under respondent’s view, a Title VII offense is made out if the firearm was possessed or received “in commerce or affecting commerce”; however, Title IV apparently does not reach possessions or intrastate transactions at all, even those with an interstate commerce nexus, but is limited to the sending or receiving of firearms as part of an interstate transportation.

In addition, whatever reading is adopted, Title VII and Title IV are, in part, redundant. The interstate commerce requirement in Title VII minimally applies to transportation. Since Title IV also prohibits convicted criminals from transporting firearms in interstate commerce, the two Titles overlap under both readings. The Government’s broader reading of Title VII does not eliminate the redundancy, but simply creates a larger area in which there is no overlap. While the Government would be on stronger ground if its reading were necessary to give Title VII some unique and independent thrust, this is not the case here. In any event, circumstances surrounding the passage of Title VII make plain that Title VII was not carefully molded to complement Title IV. Title VII was a last-minute Senate amendment to the Omnibus Crime Control and Safe Streets Act. The Amendment was hastily passed, with little discussion, no hearings, and no report. The notion that it was enacted to dovetail neatly with Title IV rests perhaps on a conception of the model legislative process; but we cannot pretend that all statutes are model statutes. While courts should interpret a statute with an eye to the surrounding statutory landscape and an ear for harmonizing potentially discordant provisions, these guiding principles are not substitutes for congressional lawmaking. In our view, no conclusion can be drawn from Title IV concerning the correct interpretation of Title VII.

Other aspects of the meager legislative history, however, do provide some significant support for the Government’s interpretation. On the Senate floor, Senator Long, who introduced § 1202, described various evils that prompted his statute. These evils included assassinations of public figures and threats to the operation of businesses significant enough in the aggregate to affect commerce. Such evils, we note, would be most thoroughly mitigated by forbidding every possession of any firearm by specified classes of especially risky people, regardless of whether the gun was possessed, received, or transported “in commerce or affecting commerce.” In addition, specific remarks of the Senator can be read to state that the amendment reaches the mere possession of guns without any showing of an interstate commerce nexus. But Senator Long never specifically says that no connection with commerce need be shown in the individual case. And nothing in his statements explains why, if an interstate commerce nexus is irrelevant in individual cases, the phrase “in commerce or affecting commerce” is in the statute at all. But even if Senator Long’s remarks were crystal clear to us, they were apparently not crystal clear to his congressional colleagues. Meager as the discussion of Title VII was, one of the few Congressmen who discussed the amendment summarized Title VII as “mak[ing] it a Federal crime to take, possess, or receive a firearm across State lines . . . 114 Cong. Rec. 16298 (statement of Rep. Pollock).

In short, “the legislative history of [the] Act hardly speaks with that clarity of purpose which Congress supposedly furnishes courts in order to enable them to enforce its true will.” Universal Camera Corp. v. NLRB, 340 U. S. 474, 483 (1951). Here, as in other cases, the various remarks by legislators “are sufficiently ambiguous insofar as this narrow issue is concerned ... to invite mutually destructive dialectic,” and not much more. FCC v. Columbia Broadcasting System, 311 U. S. 132, 136 (1940). Taken together, the statutory materials are inconclusive on the central issue of whether or not the statutory phrase “in commerce or affecting commerce” applies to “possesses” and “receives” as well as “transports.” While standing alone, the legislative history might tip in the Government’s favor, the respondent explains far better the presence of critical language in the statute. The Government concedes that “the statute is not a model of logic or clarity.” Pet. for Cert. 5. After “seiz[ing] every thing from which aid can be derived,” United States v. Fisher, 2 Cranch 358, 386 (1805) (Marshall, C. J.), we are left with an ambiguous statute.

II

Given this ambiguity, we adopt the narrower reading: the phrase “in commerce or affecting commerce” is part of all three offenses, and the present conviction must be set aside because the Government has failed to show the requisite nexus with interstate commerce. This result is dictated by two wise principles this Court has long followed.

First, as we have recently reaffirmed, “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.” Rewis v. United States, 401 U. S. 808, 812 (1971). See also Ladner v. United States, 358 U. S. 169, 177 (1958); Bell v. United States, 349 U. S. 81 (1955); United States v. Five Gambling Devices, 346 U. S. 441 (1953) (plurality opinion for affirmance). In various ways over the years, we have stated that "when choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite." United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222 (1952). This principle is founded on two policies that have long been part of our tradition. First, "a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line should be clear." McBoyle v. United States, 283 U. S. 25, 27 (1931) (Holmes, J.). See also United States v. Cardiff, 344 U. S. 174 (1952). Second, because of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity. This policy embodies "the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should." H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967). Thus, where there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant. Here, we conclude that Congress has not "plainly and unmistakably," United States v. Gradwell, 243 U. S. 476, 485 (1917), made it a federal crime for a convicted felon simply to possess a gun absent some demonstrated nexus with interstate commerce.

There is a second principle supporting today’s result: unless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. This congressional policy is rooted in the same concepts of American federalism that have provided the basis for judge-made doctrines. See, e. g., Younger v. Harris, 401 U. S. 37 (1971). As this Court emphasized only last Term in Rewis v. United States, supra, we will not be quick to assume that Congress has meant to effect a significant change in the sensitive relation between federal and state criminal jurisdiction. In traditionally sensitive areas, such as legislation affecting the federal balance, the requirement of clear statement assures that the legislature has in fact faced, and intended to bring into issue, the critical matters involved in the judicial decision. In Rewis, we declined to accept an expansive interpretation of the Travel Act. To do so, we said then, “would alter sensitive federal-state relationships [and] could overextend limited federal police resources.” While we noted there that “[i]t is not for us to weigh the merits of these factors,” we went on to conclude that “the fact that they are not even discussed in the legislative history . . . strongly suggests that Congress did not intend that [the statute have the broad reach].” 401 U. S., at 812. In the instant case, the broad construction urged by the Government renders traditionally local criminal conduct a matter for federal enforcement and would also involve a substantial extension of federal police resources. Absent proof of some interstate commerce nexus in each case, § 1202 (a) dramatically intrudes upon traditional state criminal jurisdiction. As in Rewis, the legislative history provides scanty basis for concluding that Congress faced these serious questions and meant to affect the federal-state balance in the way now claimed by the Government. Absent a clearer statement of intention from Congress than is present here, we do not interpret § 1202 (a) to reach the “mere possession” of firearms.

III

Having concluded that the commerce requirement in § 1202 (a) must be read as part of the “possesses” and “receives” offenses, we add a final word about the nexus with interstate commerce that must be shown in individual cases. The Government can obviously meet its burden in a variety of ways. We note only some of these. For example, a person “possesses ... in commerce or affecting commerce” if at the time of the offense the gun was moving interstate or on an interstate facility, or if the possession affects commerce. Significantly broader in reach, however, is the offense of “receiv[ing] ... in commerce or affecting commerce,” for we conclude that the Government meets its burden here if it demonstrates that the firearm received has previously traveled in interstate commerce. This is not the narrowest possible reading of the statute, but canons of clear statement and strict construction do “not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.” United States v. Bramblett, 348 U. S. 503, 510 (1955). We have resolved the basic uncertainty about the statute in favor of the narrow reading, concluding that “in commerce or affecting commerce” is part of the offense of possessing or receiving a firearm. But, given the evils that prompted the statute and the basic legislative purpose of restricting the firearm-related activity of convicted felons, the readings we give to the commerce requirement, although not all narrow, are appropriate. And consistent with our regard for the sensitive relation between federal and state criminal jurisdiction, our reading preserves as an element of all the offenses a requirement suited to federal criminal jurisdiction aione.

The judgment is

Affirmed.

Mr. Justice Brennan joins the judgment of the Court and the opinion except for Part III. No question of the quantum of evidence necessary to establish the Government’s prima facie case is before the Court and he would await a case properly presenting that question before deciding it.

Mr. Justice Blackmun,

with whom The Chief Justice joins,

dissenting.

I cannot join the Court’s opinion and judgment. Five of the six United States courts of appeals that have passed upon the issue presented by this case have decided it adversely to the position urged by the respondent here. United States v. Cabbler, 429 F. 2d 577 (CA4 1970). cert. denied, 400 U. S. 901; United States v. Mullins, 432 F. 2d 1003 (CA4 1970); United States v. Donofrio, 450 F. 2d 1054 (CA5 1971); Stevens v. United States, 440 F. 2d 144 (CA6 1971) (one judge dissenting); United States v. Synnes, 438 F. 2d 764 (CA8 1971); United States v. Wiley, 438 F. 2d 773 (CA8 1971); United States v. Taylor, 438 F. 2d 774 (CA8 1971); United States v. Daniels, 431 F. 2d 697 (CA9 1970); United States v. Crow, 439 F. 2d 1193 (CA9 1971). Only the Second Circuit stands opposed.

1. The statute, 18 U. S. C. App. § 1202 (a), when it speaks of one “who receives, possesses, or transports in commerce or affecting commerce,” although arguably ambiguous and, as the Government concedes, “not a model of logic or clarity,” is clear enough. The structure of the vital language and its punctuation make it refer to one who receives, to one who possesses, and to one who transports in commerce. If one wished to say that he would welcome a cat, would welcome a dog, or would welcome a cow that jumps over the moon, he would likely say “I would like to have a cat, a dog, or a cow that jumps over the moon.” So it is here.

2. The meaning the Court implants on the statute is justified only by the addition and interposition of a comma after the word “transports.” I perceive no warrant for this judicial transfiguration.

3. In the very same statute the phrase “after the date of enactment of this Act” is separated by commas and undeniably modifies each of the preceding words, “receives,” “possesses,” and “transports.” Obviously, then, the draftsman — and the Congress — knew the use of commas for phrase modification. We should give effect to the only meaning attendant upon that use.

4. The specific finding in 18 U. S. C. App. § 1201 clearly demonstrates that Congress was attempting to reach and prohibit every possession of a firearm by a felon; that Congress found that such possession, whether interstate or intrastate, affected interstate commerce; and that Congress did not conclude that intrastate possession was a matter of less concern to it than interstate possession. That finding was unnecessary if Congress also required proof that each receipt or possession of a firearm was in or affected interstate or foreign commerce.

5. Senator Long’s explanatory comments reveal clearly the purpose, the intent, and the extent of the legislation:

“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, 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.” 114 Cong. Rec. 13868 (emphasis supplied).
“So Congress simply finds 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.
“You cannot do business in an area, and you certainly cannot do as much of it and do it as well as you would like, if in order to do business you have to go through a street where there are burglars, murderers, and arsonists armed to the teeth against innocent citizens. So the threat certainly affects the free flow of commerce.” 114 Cong. Rec. 13869 (emphasis supplied).
“What the amendment seeks to do is to make it unlawful for a firearm — be it a handgun, a machine-gun, a long-range rifle, or any kind of firearm — to be in the possession of a convicted felon who has not been pardoned and who has therefore lost his right to possess firearms. ... It also relates to the transportation of firearms.
“Clauses 1-5 describe persons who, by their actions, have demonstrated that they are dangerous, or that they may become dangerous. Stated simply, they may not be trusted to possess a firearm without becoming a threat to society. This title would apply both to hand guns and to long guns.
“All of these murderers had shown violent tendencies before they committed the crime for which they are most infamous. They should not have been permitted to possess a gun. Yet, there is no Federal law which would deny possession to these undesirables.
“The killer of Medgar Evers, the murderer of the three civil rights workers in Mississippi, the defendants who shot Captain Lemuel Penn (on a highway while he was driving back to Washington after completion of reserve Military duty) would all be free under present Federal law to acquire another gun and repeat those same sorts of crimes in the future.
“So, 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 the right to possess a firearm in the future except where he has been pardoned by the President or a State Governor and has been expressly authorized by his pardon to possess a firearm.
“It has been said that Congress lacks the power to outlaw mere possession of weapons. . . .
“. . . The important point is that this legislation demonstrates that possession of a deadly weapon by the wrong people can be controlled by Congress, without regard to where the police power resides under the Constitution.
“Without question, the Federal Government does have power to control possession of weapons where such possession could become a threat to interstate commerce ....
“State gun control laws where they exist have proven inadequate to bar possession of firearms from those most likely to use them for unlawful purposes. . . .
“Nor would Title VII impinge upon the rights of citizens generally to possess firearms for legitimate and lawful purposes. It deals solely with those who have demonstrated that they cannot be trusted to possess a firearm — those whose prior acts— mostly voluntary — have placed them outside of our society. . . .
"... I am convinced that we have enough constitutional power to prohibit these categories of people from possessing, receiving, or transporting a firearm. . . .
“This amendment would provide that a convicted felon who participates in one of these marches and is carrying a firearm would be violating the law. . . .” 114 Cong. Rec. 14773-14774 (emphasis supplied).

One cannot detect in these remarks any purpose to restrict or limit the type of possession that was being considered for proscription.

6. The Court’s construction of § 1202 (a), limiting its application to interstate possession and receipt, shrinks the statute into something little more than a duplication of 18 U. S. C. §§ 922 (g) and (h). I cannot ascribe to Congress such a gesture of nonaccomplishment.

I thus conclude that § 1202 (a) was intended to and does reach all possessions and receipts of firearms by convicted felons, and that the Court should move on and decide the constitutional issue present in this case.

       Section 1202 (a) reads in full:
      “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, or
      “(2) has been discharged from the Armed Forces under dishonorable conditions, or
      “(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
      “(4) having been a citizen of the United States has renounced his citizenship, or
      “(5) being an alien is illegally or unlawfully in the United States, and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.”

       Respondent was acquitted on another count charging him with carrying a firearm during the commission of a felony (the sale of a narcotic drug), a federal offense under 18 U. S. C. §924 (c)(2).

       At this date, six circuits and numerous district courts have decided the issue. The Government’s view was adopted in United States v. Cabbler, 429 F. 2d 577 (CA4 1970), cert. denied, 400 U. S. 901; United States v. Donofrio, 450 F. 2d 1054 (CA5 1971); Stevens v. United States, 440 F. 2d 144 (CA6 1971) (one judge dissenting); United States v. Synnes, 438 F. 2d 764 (CA8 1971); United States v. Daniels, 431 F. 2d 697 (CA9 1970). The result reached by the Second Circuit in this case has also been reached in United States v. Harbin, 313 F. Supp. 50 (ND Ind. 1970); United States v. Steed, No. CR 70-57 (WD Tenn., May 11, 1970); United States v. Phelps, No. CR 14,465 (MD Tenn., Feb. 10, 1970); United States v. Francis, No. CR 12,684 (ED Tenn., Dec. 12, 1969).

       In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the “mere possession” of firearms; thus, we need not consider the relevance, in that connection, of our recent decision in Perez v. United States, 402 U. S. 146 (1971). The question whether the definition of “felony” in § 1202 (c) (2) creates a classification violating the Fifth Amendment was not raised in the Government’s Petition for Certiorari, and is also not considered here.

       Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527, 543 (1947).

       Compare United States v. Standard Brewery, Inc., 251 U. S. 210, 218 (1920), with FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389-390 (1959); see also 2 J. Sutherland, Statutory Construction §4921 (3d ed. 1943); K. Llewellyn, The Common Law Tradition 527 (1960).
      The Government, noting that there is no comma after “transports,” argues that the punctuation indicates a congressional intent to limit the qualifying phrase to the last antecedent. But many leading grammarians, while sometimes noting that commas at the end of series can avoid ambiguity, concede that use of such commas is discretionary. See, e. g., B. Evans & C. Evans, A Dictionary of Contemporary American Usage 103 (1957); M. Nicholson, A Dictionary of American-English Usage 94 (1957); R. Copperud, A Dictionary of Usage and Style 94-95 (1964); cf. W. Strunk & E. White, The Elements of Style 1-2 (1959). When grammarians are divided, and surely where they are cheerfully tolerant, we will not attach significance to an omitted comma. It is enough to say that the statute’s punctuation is fully consistent with the respondent’s interpretation, and that in this case grammatical expertise will not help to clarify the statute’s meaning.

       The Government urges that “transports” includes the act of “causing a firearm to be transported,” and therefore would- connote an offense separate in some cases from “receives” or “possesses.” From this, the Government argues that “Congress might have felt that the broader scope of the term ‘transports/ as compared to the terms ‘receives’ or ‘possesses/ justified its qualification by the interstate commerce requirement.” Brief for the United States 14 — 15. The Government’s view about the comparative breadth of the various offenses certainly does not follow from its definition of “transports.” But beyond that, its argument about what Congress “might have felt” is purely speculative, and finds no support in any arguable purpose of the statute. There is certainly no basis for concluding that Congress was less concerned about the transporting and supplying of guns than their acquisition.

       434 F. 2d, at 1298. See, e. g., 18 U. S. C. § 2421 (prostitution); 18 U. S. C. § 1952 (Travel Act); 18 U. S. C. § 1951 (robbery and extortion); 18 U. S. C. § 1231 (strikebreaking); 18 U. S. C. § 1201 (kidnaping); 18 U. S. C. § 1084 (gambling); 18 U. S. C. § 842 (i) (explosives); 15 U. S. C. § 1 et seq. (antitrust); 15 U. S. C. § 77e (securities fraud).

       Title VII limits the firearm-related activity of convicted felons, dishonorable dischargees from the Armed Services, persons adjudged “mentally incompetent,” aliens illegally in the country, and former citizens who have renounced their citizenship. See n. 1, supra. A felony is defined as “any offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less 18 U. S. C. App. § 1202 (c)(2).
      Title IV reaches persons “under indictment for, or . . . convicted in any court of, a crime punishable by imprisonment for a term exceeding one year”; fugitives from justice; users or addicts of various drugs; persons adjudicated as “mental defective[s] or . . . committed” to a mental institution. 18 U. S. C. §§ 922 (g) and (h).

       Title IV, 18 U. S. C. §§ 922 (g) and (h), is a modified and recodified version of 15 U. S. C. §§902 (e) and (f) (1964 ed.), 75 Stat. 757, which in turn amended the original statute passed in 1938, 52 Stat. 1250, 1251. Each amendment enlarged the group of people coming within the Act’s substantive prohibitions against transportation or receipt of firearms in interstate commerce. The wording of the substantive offense has remained identical, although the original Act had a provision that possession of a firearm “shall be presumptive evidence that such firearm or ammunition was shipped or transported or received [in interstate or foreign commerce].” That presumption was struck down in Tot v. United States, 319 U. S. 463 (1943), and the Court there noted:
      “[T]he Act is confined to the receipt of firearms or ammunition as a part of interstate transportation and does not extend to the receipt, in an intrastate transaction, of such articles which, at some prior time, have been transported interstate.” Id., at 466.
      While the reach of Title IV itself is a question to be decided finally some other day, the Government has presented here no learning or other evidence indicating that the 1968 Act changed the prior approach to the “receipt” offense. See, e. g., S. Rep. No. 1097, 90th Cong., 2d Sess., 115 (1968).

       The Omnibus Crime Control and Safe Streets Act of 1968 started its life as a measure designed to aid state and local governments in law enforcement by means of financial and administrative assistance. See H. R. Rep. No. 488, 90th Cong., 1st Sess. (1967). The bill passed the House on August 8, 1967, and went to the Senate. A similar bill was introduced in the Senate (S. 917) and went to the Committee on the Judiciary, which rewrote it completely. See S. Rep. No. 1097, 90th Cong., 2d Sess., supra. The amendments included the much-debated provisions regarding the admissibility of confessions, wiretapping, and state firearms control.
      On May 17, 1968, Senator Long introduced on the floor his amendment to S. 917, which he designated Title VII. His introductory remarks set forth the purpose of the amendment. 114 Cong. Rec. 13867-13869. About a week later he explained his amendment once again. There was a brief debate; the reaction was favorable but cautious, with “further thought” and “study” being suggested by several favorably inclined Senators who observed some problems with the bill as drafted. Unexpectedly, however, there was a call for a vote and Title VII passed without modification. See 114 Cong. Rec. 14772-14775. The amendment received only passing mention in the House discussion of the bill, 114 Cong. Rec. 16286, 16298, and never received committee consideration or study in the House either.

       See 114 Cong. Rec. 13868-13871, 14772-14775.

       For example, Senator Long began his floor statement by announcing:
      “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 [or comes within certain other categories] ... is not permitted to possess a firearm . . . .” 114 Cong. Rec. 13868.

       For the same, and additional, reasons, § 1201, which contains the congressional “findings” applicable to § 1202 (a), is not decisive support for the Government. That section reports that:
      “The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons, veterans who are discharged under dishonorable conditions, mental incompetents, aliens who are illegally in the country, and former citizens who have renounced their citizenship, constitutes—
      “(1) a burden on commerce or threat affecting the free flow of commerce,
      “(2) a threat to the safety of the President of the United States and Vice President of the United States,
      “(3) an impediment or a threat to the exercise of free speech and the free exercise of a religion guaranteed by the first amendment to the Constitution of the United States, and
      “(4) a threat to the continued and effective operation of the Government of the United States and of the government of each State guaranteed by article IV. of the Constitution.”
      The Government argues that these findings would have been “wholly unnecessary” unless Congress intended to prohibit all receipts and possessions of firearms by felons. But these findings of “burdens” and “threats” simply state Congress’ view of the constitutional basis for its power to act; the findings do not tell us how much of Congress’ perceived power was in fact invoked. That the findings in fact support a statute broader than the one actually passed is suggested by the fact that “in commerce or affecting commerce” does not appear at all in the introductory clause to the “findings,” even though § 1202 (a) contains the phrase and concededly reaches only transportation “in commerce or affecting commerce.”

       Holmes prefaced his much-quoted statement with the observation that “it is not likely that a criminal will carefully consider the text of the law before he murders or steals . . . .” But in the case of gun acquisition and possession it is not unreasonable to imagine a citizen attempting to “[steer] a careful course between violation of the statute [and lawful conduct],” United States v. Hood, 343 U. S. 148, 151 (1952). Of course, where there is a state law prohibiting felons from possessing firearms, as in New York State, N. Y. Penal Law § 265.05 (Supp. 1971-1972), it may be unreal to argue that there are notice problems under the federal law. There are many States, however, that do not have their own laws prohibiting felons from possessing firearms. See Geisel, Roll, & Wettick, The Effectiveness of State and Local Regulation of Handguns: A Statistical Analysis, 1969 Duke L. J. 647, 652-653. Since ex-offenders in these States are limited only by the federal gun control laws, the notice problem of that law may be quite real.

        Apex Hosiery Co. v. Leader, 310 U. S. 469, 513 (1940); United States v. Five Gambling Devices, 346 U. S. 441, 449-450 (1953) (plurality opinion); FTC v. Bunte Bros., Inc., 312 U. S. 349, 351, 354-355 (1941); Frankfurter, Some Reflections on the Reading of Statutes, 47 Col. L. Rev. 527, 539-540 (1947). Cf. Auto Workers v. Wisconsin Board, 351 U. S. 266, 274-275 (1956); Palmer v. Massachusetts, 308 U. S. 79, 83-84 (1939); Leiter Minerals, Inc. v. United States, 352 U. S. 220, 225-226 (1957).

       H. Hart & A. Sacks, The Legal Process: Basic Problems in the Making and Application of Law 1241 (tent. ed. 1958).

       This reading preserves a significant difference between the “receipt” offenses under Title IV and Title VII. See supra, at 342-343.

       Unappealed district court decisions are in conflict. Those upholding the Government’s position include United States v. Davis, 314 F. Supp. 1161 (ND Miss. 1970); United States v. Vicary, No. CR 44,205 (ED Mich., June 29, 1970) (en banc); United States v. Childress, No. 8039-R (ED Va., Jan. 6, 1969); United States v. Boggs, No. 8138 (Wyo., June 17, 1970). Those opposed include United States v. Harbin, 313 F. Supp. 50 (ND Ind. 1970); United States v. Steed, No. CR 70-57 (WD Tenn., May 11, 1970); United States v. Phelps, No. CR 14,465 (MD Tenn., Feb. 10, 1970); United States v. Francis, No. CR 12,684 (ED Tenn., Dec. 12, 1969).

       Pet. for Cert. 5.

       “§ 1201. Congressional findings and declaration.
      “The Congress hereby finds and declares that the receipt, possession, or transportation of a firearm by felons . . . constitutes—
      “(1) a burden on commerce or threat affecting the free flow of commerce . . . .”