author: Mr. Justice Harlan Mr. Justice Stewart,

text:
    UNITED STATES v. FABRIZIO.
    No. 47.
    Argued November 7, 1966.
    Decided December 12, 1966.

      Jerome I. Chapman argued the cause for the United States, pro hac vice, by special leave of Court. With him on the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Sidney M. Glazer.

      Betty D. Friedlander argued the cause and filed a brief for appellee.

      Joseph A. Millimet, by special leave of Court, argued the cause for the State of New Hampshire, as amicus curiae, urging affirmance. With him on the brief was George S. Pappagianis, Attorney General.
   Mr. Justice Harlan

delivered the opinion of the Court.

An indictment filed in the United States District Court for the Western District of New York charged appellee, Fabrizio, with knowingly carrying “in interstate commerce from Keene, State of New Hampshire to Elmira, State of New York, . . . records, papers and writings, to wit: 75 acknowledgements of purchase for a sweepstakes race of the State of New Hampshire, to be used, and adapted, devised and designed for use, in a wagering pool with respect to a sporting event, that is: a sweepstake race of the State of New Hampshire, as he then well knew; all in violation of Section 1953 of Title 18, U. S. C.” That section provides in pertinent part:

“(a) Whoever, except a common carrier in the usual course of its business, knowingly carries or sends in interstate or foreign commerce any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing, or other device used, or to be used, or adapted, devised, or designed for use in (a) bookmaking; or (b) wagering pools with respect to a sporting event; or (c) in a numbers, policy, bolita, or similar game shall be fined not more than $10,000 or imprisoned for not more than five years or both.
“(b) This section shall not apply to (1) parimutuel betting equipment, parimutuel tickets where legally acquired, or parimutuel materials used or designed for use at racetracks or other sporting events in connection with which betting is legal under applicable State law, or (2) the transportation of betting materials to be used in the placing of bets or wagers on a sporting event into a State in which such betting is legal under the statutes of that State, or (3) the carriage or transportation in interstate or foreign commerce of any newspaper or similar publication.”

In response to a limited demand for a bill of particulars the Government stated that the only records, papers, and writings in issue were the specified 75 acknowledgments, and that no violation of state law was charged. Appellee then moved to dismiss the indictment on the ground that it did “not set forth facts sufficient to charge the Defendant with the violation of” this statute. In a supporting affidavit three specific shortcomings were claimed. Appellee first contended that § 1953 was intended to reach only the activities of organized crime or those participating in an illegal gambling or lottery enterprise. Absent an allegation that he was of this class no crime under the statute was charged. Appellee also contended that the indictment was deficient under the statute for failure to name an “illegal” wagering pool, the New Hampshire lottery being a state enterprise. Finally, it was urged that the allegation in the indictment that the acknowledgments were “to be used, and adapted, devised and designed for use” in the New Hampshire Sweepstakes was impossible in fact or rested on a misinterpretation of “use” since the acknowledgments were valueless, and need not have been retained in order to collect on the sweepstakes.

The District Court thereupon dismissed the indictment holding that “[t]he charge in the indictment does not come within the purpose of Section 1953 ... as disclosed in the legislative history of the Act.” The Government brought the case directly here under the provisions of the Criminal Appeals Act, 18 U. S. C. § 3731. We noted probable jurisdiction, 383 U. S. 904. Our function under that Act is limited to the construction of the statute and “this Court is not at liberty to go beyond the question of the correctness of that construction and consider other objections to the indictment. The Government’s appeal does not open the whole case.” United States v. Borden Co., 308 U. S. 188, 193. See also United States v. Keitel, 211 U. S. 370. For reasons to follow, we reverse.

We turn to the specific deficiencies alleged by appellee, noting first that the indictment tracks the language of § 1953 and thus makes it incumbent upon appellee to demonstrate that the additional allegations he claims to be necessary are required to fulfill the statutory purpose. We may dispose quickly of appellee’s first contention. The language of § 1953 makes it applicable to “Whoever, except a common carrier . . .” engages in the forbidden conduct. The need to exempt common carriers makes it clear that Congress painted with a broad brush, and did not limit the applicability of § 1953 in the respects urged by appellee. In companion legislation where Congress wished to restrict the applicability of a provision to a given set of individuals, it did so with clear language. A statute limited without a clear definition of the covered group, as would be the case with § 1953 under appellee’s view of it, might raise serious constitutional problems. Lanzetta v. New Jersey, 306 U. S. 451. And the asserted restriction would defeat one of the purposes of the section which is aimed not only at the paraphernalia of existing gambling activities but also at materials essential to the creation of such activities. As the legislative hearings made clear, such materials are often legally fabricated and transported by persons engaged in legitimate businesses. Since the purpose of Congress was to thwart the interstate movement of such paraphernalia, the accomplishment of that goal required reaching “whoever” knowingly carried such materials in interstate commerce.

Appellee’s next contention, earnestly supported by the State of New Hampshire as amicus, is based on a similar reading of the legislative intent. Appellee emphasizes the congressional desire to attack organized crime, a purpose not served by restrictions on the distribution of New Hampshire Sweepstakes materials. Appellee argues that the specific exemption in § 1953 (b) of certain legal gambling enterprises from the provisions of § 1953 (a) ánd the limitation of § 1953 (a) itself to three types of gambling favored by organized crime reflect a congressional policy of respecting the individual gambling policies of the States and that these exemptions and limitations are merely indicative of that general policy. The New Hampshire Sweepstakes not being in existence when § 1953 was passed is necessarily exempted, so it is said, by policy rather than wording. The Government, on the other hand, contends that the specific exceptions point up the breadth of § 1953 (a) and the congressional desire to apply it except where Congress itself had carefully examined and approved exemption.

We find the Government’s contention more in keeping with the language and purposes of the Act. Although at least one State had legalized gambling activities at the time the bill was passed, and the Congress was certainly aware of legal sweepstakes run by governments in other countries, Congress did not limit the coverage of the statute to “unlawful” or “illegal” activities. The sponsors of the bill made it clear that the measure as drafted was not so limited. In passing 18 U. S. C. § 1084 and 18 U. S. C. § 1952 as companion provisions to § 1953 Congress exempted transmission of legal gambling information from the former and limited the latter to those engaged in “unlawful activity.” Thus it is reasonable to assume that Congress would have given a specific indication of exemption for state-run wagering pools if it had desired to exempt them.

Exemption would also defeat one of the principal purposes of § 1953, aiding the States in the suppression of gambling where such gambling is contrary to state policy. For example, New York prohibits the sale of lottery tickets and the transfer of any paper purporting to represent an interest in a lottery “to be drawn within or without” that State regardless of the legality of the lottery in the place of drawing. N. Y. Const., Art. I, § 9, N. Y. Penal Law §§ 1373, 1382. To allow the paraphernalia of a lottery, state-operated or not, to flow freely into New York might significantly endanger that policy. It is clear that the lottery statutes apply to state-operated as well as illegal lotteries, and that § 1953 was introduced to strengthen those statutes by closing the loopholes placed in them by the narrow interpretation of included materials by this Court in France v. United States, 164 U. S. 676, and Francis v. United States, 188 U. S. 375. It would be anomalous to hold that where Congress meant to bar the lottery tickets themselves from interstate commerce it would allow the free circulation of other paraphernalia of the lottery.

Appellee’s final contention raises a more troublesome problem under the Criminal Appeals Act under which this case is here. The indictment alleges the knowing interstate carriage of “records, papers and writings” and that these are “to be used, and adapted, devised and designed for use” in a forbidden activity. The Government contends that the question whether an acknowledgment can be, and was, so used is one of fact for the trial and not presently before this Court. In United States v. Wiesenfeld Warehouse Co., 376 U. S. 86, 91-92, the Court dealt with a defendant’s clainTthat a statute was not applicable to him because of his peculiar situation by stating:

“Whatever the truth of this claim, it involves factual proof to be raised defensively at a trial on the merits. We are here concerned only with the construction of the statute as it relates to the sufficiency of the information, and not with the scope and reach of the statute as applied to such facts as may be developed by evidence adduced at a trial.”

Here, also, we might justifiably refuse to consider ap-pellee’s contention. However, the operation of the New Hampshire Sweepstakes, while a matter of fact, is not a disputed issue and a valid question is raised as to the construction of the use requirement in § 1,953. Thus this case may be considered similar to United States v. Hvass, 355 U. S. 570, where in an appeal under the Criminal Appeals Act this Court determined the question whether a district court rule was a “law of the United States” for the purposes of the perjury statute. Thus we may inquire whether an acknowledgment of purchase can, after issuance, have a use in the New Hampshire Sweepstakes.

New Hampshire Sweepstakes tickets are sold by a special machine. The customer writes a name and address on each ticket and is not restricted to purchasing for himself. The owner of a ticket may be an individual who has not come to New Hampshire to make the purchase. The completed ticket is held in storage in the machine and eventually used in the drawing. The acknowledgment, practically a carbon copy of the ticket, is ejected from the machine. It need not be retained to collect a prize since all prizes are paid directly to the person named on the ticket, and thus appellee claims it has no use in the sweepstakes. But common sense and ordinary experience negative such a formalistic conclusion. The acknowledgment serves a significant psychological purpose by receipting the purchase and assuring the owner that his ticket is properly registered. Before this function is fulfilled by delivery of the acknowledgment to the owner of the ticket the acknowledgment remains a record, paper or writing “to be used” in the sweepstakes. The Government contends that it will prove that the acknowledgments specified in this indictment were in fact being delivered to out-of-state ticket owners who had not themselves purchased their tickets in New Hampshire but had done so through Fabrizio and were thus assured of the proper completion of their purchases. We think it sufficient to hold that such a state of facts is comprehended by this indictment and within the terms of 18 U. S. C. § 1953. The constitutional power of Congress to enact the statute as we have construed it is not questioned by appellee.

The judgment of the United States District Court for the Western District of New York is reversed and the case remanded to that court for further proceedings consistent with this opinion. R ü SQ orderedi

Mr. Justice Stewart,

whom Mr. Justice Fortas joins,

dissenting.

For me, the key issue in this case is whether the acknowledgments of purchase that the appellee carried from New Hampshire to New York come within the prohibition by 18 U. S. C. § 1953 (a) of interstate carriage of “any record, paraphernalia, ticket, certificate, bills, slip, token, paper, writing, or other device used, or to be used, or adapted, devised, or designed for use in . . . wagering pools with respect to a sporting event . . . .” In the operation of New Hampshire’s sweepstakes, tickets are sold through special machines, and are retained by the machines after the purchaser fills in a form provided for his name and address. After the tickets are drawn, winners are notified by telegram. The machines also provide the purchaser with an acknowledgment of purchase, which is merely a record of the purchase transaction. In order to be eligible for and to receive a prize, the purchaser of a ticket need not retain or present this purchase acknowledgment.

The Government does not contend that federal law makes it a crime for a person from another State to visit New Hampshire, purchase a sweepstakes ticket there, and return to his home. But it has argued that if a visitor to New Hampshire returns home with a receipt that merely acknowledges his personal purchase and in no way affects his eligibility to receive a prize, he has committed a crime punishable by imprisonment of up to five years. Thus the Government requires us to assume that Congress has branded as felons many or most of the thousands of visitors to New Hampshire who have purchased sweepstakes tickets there. I do not believe that Congress intended such an unexpected result, which only the most abjectly literal approach to statutory interpretation could tolerate. No plausible legislative purpose would be served by the Government’s construction, for when an individual takes an acknowledgment of purchase home from New Hampshire, merely retaining it as a personal record of his purchase, the anti-gambling policies of other States are in no way undermined, and no opening is provided for the growth of organized racketeering.

The Court apparently shares my concern with the overbroad reach of some of the Government’s contentions. For the Court’s opinion stresses that the Government has informed this Court that in its proof at trial it expects to show that the appellee carried acknowledgments of purchase to New York, not to retain them as personal records of his own purchases, but to deliver them to other people in New York on whose behalf the appellee purchased tickets in New Hampshire. The Court concludes: “We think it sufficient to hold that such a state of facts is comprehended by this indictment and within the terms of 18 U. S. C. § 1953.” Ante, at 271. I agree that if the appellee had been charged with conducting an interstate scheme for sale of sweepstakes tickets and the proof substantiated the charge, he could be validly convicted under § 1953. In such a case, the acknowledgments of purchase would be “used, or adapted ... for use in . . . wagering pools with respect to a sporting event . . .” because they would serve the essential role of providing the ultimate purchasers with a claim against the agent who had purchased tickets in New Hampshire on their behalf. The operation of such a scheme would have the effect of extending sweepstakes sales across state lines, would undermine the anti-gambling policies of other States, and might provide fertile opportunities for racketeers.

However, I must emphatically disagree with the Court’s conclusion that “such a state of facts is comprehended by this indictment . . . .” The indictment merely charged the appellee with interstate transport of “acknowledgements of purchase for a sweepstakes race of the State of New Hampshire” and recited the language of § 1953. The Government also furnished a bill of particulars that, insofar as relevant, simply reiterated the bare charge that the appellee had carried acknowledgments of purchase across state lines. These charges were consonant with the Government’s broad theory that all interstate carriage of acknowledgments of purchase is prohibited, even if the acknowledgment is retained solely as a personal record of the carrier’s own purchase. That interpretation of the statute, along with the indictment that, embodied it, was properly rejected by the trial court.

As the Court appears to concede, although the language of its opinion is not altogether clear, the appellee could be validly convicted only if he were shown to have participated in an interstate scheme for selling sweepstakes chances to persons outside New Hampshire. But no hint that the appellee was being charged with such activities appears in the indictment or bill of particulars. The charges here fell far short of the established requirement that an indictment must specify the elements of the offense intended to be charged and apprise the defendant of the case that he must be prepared to meet. See Russell v. United States, 369 U. S. 749, 760-772, and the cases discussed therein. And the Government is not entitled to enlarge the indictment now by revamping the whole theory of the prosecution and making new and additional charges against the appellee for the first time in the course of proceedings before this Court. This Court cannot remedy the deficiencies in the indictment by retroactively reading the Government’s new charges into it.

We long ago rejected the notion that “it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes . . . .” Ex parte Bain, 121 U. S. 1, 10. See Stirone v. United States, 361 U. S. 212; Russell v. United States, 369 U. S. 749, 770-771. As the Court in Bain observed, “Any other doctrine would place the rights of the citizen ... at the mercy or control of the court or prosecuting attorney . . . .” 121 U. S., at 13. The Court’s opinion today ignores these established principles, and allows the appellee to be tried for a crime that he was not charged with committing.

For these reasons, I respectfully dissent.

       Thus the sufficiency of the indictment as a pleading is not at issue, United States v. Gilliland, 312 U. S. 86, nor are questions relating to the bill of particulars presently before us. See United States v. Comyns, 248 U. S. 349, 353. Of course on remand these questions will remain unaffected by anything decided today.

       Thus 18 U. S. C. § 1084 is limited to persons “being engaged in the business of betting or wagering.'’

       See Hearings on H. R. 468 before Subcommittee No. 5 of the House Committee on the Judiciary, 87th Cong., 1st Sess., p. 261 (testimony of Mr. Stinson for American Totalisator Co.); Hearings on S. 1653 before the Senate Committee on the Judiciary, 87th Cong., 1st Sess., pp. 20 (testimony of Mr. Jacobs for Jennings & Co.), 25 (testimony of Mr. Nelson for Bally Manufacturing Co.).

       See, e. g., Hearings on H. R. 468, supra, n. 3, at 26, where the Attorney General made clear that the primary purpose of the bill was to assist local enforcement of laws pertaining to gambling and like offenses; S. Rep. No. 589, 87th Cong., 1st Sess., p. 2, specified that the prohibition of the bill was “on the transportation of wagering paraphernalia” and would, without amendment, have comprehended the shipment of parimutuel equipment by legitimate business concerns.

       During the Senate Hearings Assistant Attorney General Miller, representing the Department of Justice, was specifically asked whether the bill was intended only to apply to “illegal" activities under state law. He unequivocally replied: “No sir. That proviso is not in here. It was the position of the Department that these types of paraphernalia, records, and other devices should be barred from interstate commerce.” Hearings on S. 1653, supra, note 3, p. 294. Before the House Committee studying the bill Mr. Miller was equally explicit. He noted that the Irish Sweepstakes would be covered by the bill and soon after declared that Congress might consider a special exemption for parimutuel materials since these arose in activities legal under state law. Hearings on H. R. 468, supra, n. 3, p. 352.

       See H. R. Rep. No. 968, 87th Cong., 1st Sess., pp. 2-3; 107 Cong. Rec. 13902 (remarks of Senator Eastland)..

       New Hampshire Sweepstakes Commission, New Hampshire Sweepstakes Program 5-8.

       See the colloquy between Assistant Attorney General Miller and Senators Keating and Kefauver reported at 293-294 of Senate Hearings on S. 1653, supra, n. 3. There Mr. Miller distinguished between paraphernalia which had served and exhausted its use, e. g., losing tickets on a horse race, and paraphernalia whose function was not yet exhausted.

       18 U. S. C. § 1953 (a) provides that those who are convicted of a violation of the section “shall be fined not more than $10,000 or imprisoned for not more than five years or both.”

       New Hampshire has enacted legislation, N. H. Rev. Stat. Ann. §284:21-0, designed to deter those who seek to profit from such a scheme:
      “Purchase of Tickets for a Fee Prohibited. No person shall engage in the business of purchasing or offering to purchase a sweepstakes ticket or tickets for, in behalf of, or in the name of another for a fee or service charge which shall make the ultimate cost of such ticket or tickets to the registered owner thereof greater than the legal price of such ticket or tickets as established by the sweepstakes commission under the authority of this subdivision. Whoever violates the provisions of this section shall be fined not more than five hundred dollars, or imprisoned not more than one year, or both.”

       The indictment recites, in full: “The Grand Jury charges: That on or about the 24th day of August, 1964, ANTHONY L. FABE.I-ZIO, knowingly did carry in interstate commerce from Keene, State of New Hampshire to Elmira, State of New York, in the Western District of New York, records, papers and writings, to wit: 75 acknowledgements of purchase for a sweepstakes race of the State of New Hampshire, to be used, and adapted, devised and designed for use, in a wagering pool with respect to a sporting event, that is: a sweepstake race of the State of New Hampshire, as he then well knew; all in violation of Section 1953 of Title 18, U. S. C.”

       In response to the appellee’s contention that the indictment failed to state an offense, the Government’s bill of particulars stated: “It is claimed by the United States that defendant knowingly carried in interstate commerce in violation of § 1953, T. 18, United States Code, 75 written acknowledgements of purchase of State of New Hampshire First Sweepstakes Race of September, 1964.”


source: Caselaw Access Project

author:
Mr. Justice Stewart
      Mr. Justice Clark,

license: Public Domain

text:
    WOODBY v. IMMIGRATION AND NATURALIZATION SERVICE.
    No. 40.
    Argued November 17, 1966.
    Decided December 12, 1966.

      Jacob A. Myers argued the cause for petitioner in No. 40. With him on the briefs was Sidney G. Kusworm, Sr.

      Francis X. Beytagh, Jr., argued the cause for respondent in No. 40, pro hac vice, by special leave of Court. On the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Robert S. Rifkind, L. Paul Winings and Charles Gordon.

      Joseph Forer argued the cause and filed briefs for petitioner in No. 80.

      Charles Gordon argued the cause for respondent in No. 80. On the brief were Solicitor General Marshall, Assistant Attorney General Vinson, Richard A. Posner and Maurice A. Roberts.

      Frank C. Newman, pro se, filed a brief for Newman et al., as amici curiae, in No. 80.

      Together with No. 80, Sherman v. Immigration and Naturalization Service, on certiorari to the United States Court of Appeals for the Second Circuit, argued on November 16-17, 1966.

   Mr. Justice Stewart

delivered the opinion of the Court.

The question presented by these cases is what burden of proof the Government must sustain in deportation proceedings. We have concluded that it is incumbent upon the Government in such proceedings to establish the facts supporting deportability by clear, unequivocal, and convincing evidence.

In Sherman (No. 80), the petitioner is a resident alien who entered this country from Poland in 1920 as a 14-year-old boy. In 1963 the Immigration and Naturalization Service instituted proceedings to deport him upon the ground that he had re-entered the United States in 1938, following a trip abroad, without inspection as an alien. After a hearing before a special inquiry officer, the petitioner was ordered to be deported, and the Board of Immigration Appeals dismissed his appeal.

The Government’s evidence showed that the petitioner had obtained a passport in 1937 under the name of Samuel Levine, representing himself as a United States citizen. Someone using this passport sailed to France in June 1937, proceeded to Spain, returned to the United States in December 1938, aboard the S. S. Amonia, and was admitted without being examined as an alien. To establish that it was the petitioner who had traveled under this passport, the Government introduced the testimony of Edward Morrow, an American citizen who had fought in the Spanish Civil War. Morrow was at first unable to remember the name Samuel Levine or identify the petitioner, but eventually stated that he thought he had known the petitioner as “Sam Levine,” had seen him while fighting for the Loyalists in Spain during 1937 and 1938, and had returned with him to the United States aboard the S. S. Ausonia in December 1938. Morrow conceded that his recollection of events occurring 27 years earlier was imperfect, and admitted that his identification of the petitioner might be mistaken.

It is not clear what standard of proof the special inquiry officer and the Board of Immigration Appeals on de novo review applied in determining that it was the petitioner who had traveled to Spain and re-entered the United States under the Samuel Levine passport. At the outset of his opinion, the special inquiry officer stated that the Government must establish deportability “by reasonable, substantial and probative evidence,” without discussing what the burden of proof was. Later he concluded that the Government had established its contentions “with a solidarity far greater than required,” but did not further elucidate what was “required.” The Board of Immigration Appeals stated that it was “established beyond any reasonable doubt” that the petitioner had obtained the Samuel Levine passport, and added that this established a “presumption” that the petitioner had used it to travel abroad. The Board further stated that it was a “most unlikely hypothesis” that someone other than the petitioner had obtained and used the passport, and asserted that “the Service has borne its burden of establishing” that the petitioner was deport-able, without indicating what it considered the weight of that burden to be.

Upon petition for review, the Court of Appeals for the Second Circuit originally set aside the deportation order, upon the ground that the Government has the burden of proving the facts supporting deportability beyond a reasonable doubt. The court reversed itself, however, upon a rehearing en banc, holding that the Government need only prove its case with “reasonable, substantial, and probative evidence.” We granted certiorari, 384 U.S. 904.

In Woodby (No. 40), the petitioner is a resident alien who was born in Hungary and entered the United States from Germany in 1956 as the wife of an American soldier. Deportation proceedings were instituted against her on the ground that she had engaged in prostitution after entry. A special inquiry officer and the Board of Immigration Appeals found that she was deportable upon the ground charged.

At the administrative hearing the petitioner admitted that she had engaged in prostitution for a brief period in 1957, some months after her husband had deserted her, but claimed that her conduct was the product of circumstances amounting to duress. Without reaching the validity of the duress defense, the special inquiry officer and the Board of Immigration Appeals concluded that the petitioner had continued to engage in prostitution after the alleged duress had terminated. The hearing officer and the Board did not discuss what burden of proof the Government was required to bear in establishing deportability, nor did either of them indicate the degree of certainty with which their factual conclusions were reached. The special inquiry officer merely asserted that the evidence demonstrated that the petitioner was deportable. The Board stated that the evidence made it “apparent” that the petitioner had engaged in prostitution after the alleged duress had ended, and announced that “it is concluded that the evidence establishes deportability . . . .”

In denying a petition for review, the Court of Appeals for the Sixth Circuit did not explicitly deal with the issue of what burden of persuasion was imposed upon the Government at the administrative level, finding only that “the Board’s underlying order is 'supported by reasonable, substantial, and probative evidence on the record considered as a whole ....’” We granted certiorari, 384 U. S. 904.

In the prevailing opinion in the Sherman case, the Court of Appeals for the Second Circuit stated that “[i]f the slate were clean,” it “might well agree that the standard of persuasion for deportation should be similar to that in denaturalization, where the Supreme Court has insisted that the evidence must be 'clear, unequivocal, and convincing’ and that the Government needs ‘more than a bare preponderance of the evidence’ to prevail. . . . But here,” the court thought, “Congress has spoken . . . .” 350 F. 2d, at 900. This view was based upon two provisions of the Immigration and Nationality Act which use the language “reasonable, substantial, and probative evidence” in connection with deportation orders. The provisions in question are § 106 (a) (4) of the Act which states that a deportation order, “if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive,” and § 242 (b) (4) of the Act which provides inter alia that “no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence.”

It seems clear, however, that these two statutory provisions are addressed not to the degree of proof required at the administrative level in deportation proceedings, but to quite a different subject — the scope of judicial review. The elementary but crucial difference between burden of proof and scope of review is, of course, a commonplace in the law. The difference is most graphically illustrated in a criminal case. There the prosecution is generally required to prove the elements of the offense beyond a reasonable doubt. But if the correct burden of proof was imposed at the trial, judicial review is generally limited to ascertaining whether the evidence relied upon by the trier of fact was of sufficient quality and substantiality to support the rationality of the judgment. In other words, an appellate court in a criminal case ordinarily does not ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt, but whether the judgment is supported by substantial evidence.

That § 106 (a) (4) relates exclusively to judicial review is made abundantly clear by its language, its context, and its legislative history. Section 106 was added to the Act in 1961 in order “to create a single, separate, statutory form of judicial review of administrative orders for the deportation and exclusion of aliens from the United States.” The section is entitled “Judicial Review of Orders of Deportation and Exclusion,” and by its terms provides “the sole and exclusive procedure for” the “judicial review of all final orders of deportation.” Subsection 106 (a)(4) is a specific directive to the courts in which petitions for review are filed.

It is hardly less clear that the other provision upon which the Court of Appeals for the Second Circuit relied, §242 (b)(4) of the Act, is also addressed to reviewing courts, and, insofar as it represents a yardstick for the administrative factfinder, goes, not to the burden of proof, but rather to the quality and nature of the evidence upon which a deportation order must be based. The provision declares that “reasonable, substantial, and probative evidence” shall be the measure of whether a deportability decision is “valid” — a word that implies scrutiny by a reviewing tribunal of a decision already reached by the trier of the facts. The location of this provision in a section containing provisions dealing with procedures before the special inquiry officer has little significance when it is remembered that the original 1952 Act did not itself contain a framework for judicial review — although such review was, of course, available by habeas corpus or otherwise. See Marcello v. Bonds, 349 U. S. 302. And whatever ambiguity might be thought to lie in the location of this section is resolved by its legislative history. The Senate Report explained § 242 (b)(4) as follows: “The requirement that the decision of the special inquiry officer shall be based on reasonable, substantial and probative evidence means that, where the decision rests upon evidence of such a nature that it cannot be said that a reasonable person might not have reached the conclusion which was reached, the case may not be reversed because the judgment of the appellate body differs from that of the administrative body.”

We conclude, therefore, that Congress has not addressed itself to the question of what degree of proof is required in deportation proceedings. It is the kind of question which has traditionally been left to the judiciary to resolve, and its resolution is necessary in the interest of the evenhanded administration of the Immigration and Nationality Act.

The petitioners urge that the appropriate burden of proof in deportation proceedings should be that which the law imposes in criminal cases — the duty of proving the essential facts beyond a reasonable doubt. The Government, on the other hand, points out that a deportation proceeding is not a criminal case, and that the appropriate burden of proof should consequently be the one generally imposed in civil cases and administrative proceedings — the duty of prevailing by a mere preponderance of the evidence.

To be sure, a deportation proceeding is not a criminal prosecution. Harisiades v. Shaughnessy, 342 U. S. 580. But it does not syllogistically follow that a person may be banished from this country upon no higher degree of proof than applies in a negligence case. This Court has not closed its eyes to the drastic deprivations that may follow when a resident of this country is compelled by our Government to forsake all the bonds formed here and go to a foreign land where he often has no contemporary identification. In words apposite to the question before us, we have spoken of “the solidity of proof that is required for a judgment entailing the consequences of deportation, particularly in the case of an old man who has lived in this country for forty years . . . .” Rowoldt v. Perfetto, 355 U. S. 115, 120.

In denaturalization cases the Court has required the Government to establish its allegations by clear, unequivocal, and convincing evidence. The same burden has been imposed in expatriation cases. That standard of proof is no stranger to the civil law.

No less a burden of proof is appropriate in deportation proceedings. The immediate hardship of deportation is often greater than that inflicted by denaturalization, which does not, immediately at least, result in expulsion from our shores. And many resident aliens have lived in this country longer and established stronger family, social, and economic ties here than some who have become naturalized citizens.

We hold that no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true. Accordingly, in each of the cases before us, the judgment of the Court of Appeals is set aside, and the case is remanded with directions to remand to the Immigration and Naturalization Service for such further proceedings as, consistent with this opinion, may be deemed appropriate.

It is so ordered.

Mr. Justice Clark,

whom Mr. Justice Harlan joins,

dissenting.

The Court, by placing a higher standard of proof on the Government, in deportation cases, has usurped the legislative function of the Congress and has in one fell swoop repealed the long-established “reasonable, substantial, and probative” burden of proof placed on the Government by specific Act of the Congress, and substituted its own “clear, unequivocal, and convincing” standard. This is but another case in a long line in which the Court has tightened the noose around the Government’s neck in immigration cases.

I.

I agree that § 106 (a)(4), the 1961 amendment to the Immigration and Nationality Act of 1952, relates to judicial review of administrative orders of the Immigration Service but, with due deference, I cannot see how “It is hardly less clear” that § 242 (b)(4) of the Act, as the Court says, likewise applies exclusively to judicial review. Indeed, on the contrary, the latter section was specifically enacted as the only standard of proof to be applied in deportation cases.

Before § 242 (b) was enacted the immigration laws contained no detailed provision concerning the burden of - proof in deportation cases. Kessler v. Strecker, 307 U. S. 22, 34 (1939). In Wong Yang Sung v. McGrath, 339 U. S. 33 (1950), this Court extended the provisions of the Administrative Procedure Act to deportation proceedings. Congress immediately exempted such proceedings from the Administrative Procedure Act and in 1952 established in § 242 (b) an exclusive procedural system for deportation proceedings.

In essence that section, § 242 (b), provides for notice and a hearing before a “special inquiry officer” of the Immigration Service; sets the standard of proof in such cases as “reasonable, substantial, and probative evidence”; and authorizes the Attorney General to issue regulations. In issuing those regulations the Attorney General established a Board of Immigration Appeals. The Board’s relationship to the orders of the special inquiry officer is similar to the relationship an agency has to the orders of a hearing examiner under the Administrative Procedure Act. The section also specifically provides that the regulations shall include requirements that “no decision of deportability shall be valid unless it is based upon reasonable, substantial, and probative evidence” and that this standard shall be the “sole and exclusive procedure for determining the deportability of an alien under this section.” This was the first time in our history that Congress had expressly placed a specific standard of proof on the Government in deportation cases. And the language Congress used made it clear that this standard related to the “burden of proof” as well as “the quality and nature of the evidence.” The requirement of “reasonable” evidence cannot be meant merely to exclude “unreasonable” or “irrational” evidence but carries the obvious connotation from history and tradition of sufficiency to sustain a conclusion by a preponderance of the evidence. Congress in overruling Wong Yang Sung, supra, carved deportation proceedings from the judicial overtones of the Administrative Procedure Act and established a built-in administrative procedure.

This is made crystal clear by the reports of both Houses of Congress on § 242 (b). The Committee Reports, S. Rep. No. 1137, 82d Cong., 2d Sess., 30; H. R. Rep. No. 1365, 82d Cong., 2d Sess., 57, state in simple, understandable language that:

“The requirement that the decision of the special inquiry officer shall be based on reasonable, substantial, and probative evidence means that, where the decision rests upon evidence of such a nature that it cannot be said that a reasonable person might not have reached the conclusion which was reached, the case may not be reversed because the judgment of the appellate body differs from that below.”

The courts consistently applied the standard of “reasonable, substantial and probative” evidence after the adoption of § 242 (b). See, e. g., Rowoldt v. Perfetto, 355 U. S. 115, 120-121 (1957).

The Court, however, in Shaughnessy v. Pedreiro, 349 U. S. 48 (1955), once again extended the Administrative Procedure Act’s provision respecting judicial review to deportation cases. The reaction of the Congress was identical to that of 1952 when it overruled Wong Yang Sung, supra. It enacted, in 1961, § 106 (a) (4) of the Act. Just as § 242 (b) was the first statutory standard of proof, § 106 (a)(4) was the first express statutory standard of judicial review. It provided:

“. . . the petition [for review] shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General's findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive.”

Why Congress passed § 106 (a) (4) if judicial review, as the Court holds, was already exclusively covered by § 242 (b) is beyond my comprehension — unless it was engaged in shadow boxing. I cannot believe that it was.

The Court says that both the special inquiry officer and the Board of Immigration Appeals failed to state what the burden of proof was in these cases. Fault is found in the officer’s use of the phrase “solidarity” of proof “far greater than required.” This language was apparently patterned after this Court’s opinion in Rowoldt, supra, where the phrase “solidity of proof” was used. The findings of both the officers and the Board in these cases show specifically that the burden of proof followed in each case was that required of the Government in § 242 (b) and the Regulations of the Attorney General, i. e., by “reasonable, substantial, and probative evidence.” This standard has been administratively followed by the Immigration Service in a long and unbroken line of cases. See Matter of Peralta, 10 I. & N. Dec. 43, 46.

The Court now extends the standard of Schneiderman v. United States, 320 U. S. 118 (1943), in denaturalization cases, i. e., “clear, unequivocal, and convincing evidence,” to deportation cases. But denaturalization and expatriation are much more oppressive cases than deportation. They deprive one of citizenship which the United States had previously conferred. The Schneider-man rule only follows the principle that vested rights can be canceled only upon clear, unequivocal, and convincing proof; it gives stability and finality to a most precious right — citizenship. An alien, however, does not enjoy citizenship but only a conditional privilege extended to him by the Congress as a matter of grace. Both petitioners, the record shows, knew this, yet they remained in this country for years — 46 in the case of Sherman and 10 in that of Woodby. Still, neither made any effort to obtain citizenship.

II.

By treating these two cases as raising only a single issue the Court ignores some aspects of Woodby which greatly trouble me. Woodby sought review of the final deportation order against her more than six months after entry of that order. Section 106 (a)(1) of the Act specifically limits the jurisdiction of the Court of Appeals to consideration of petitions for review “filed not later than six months from the date of the final deportation order.” The legislative history of that provision makes it clear that Congress intended it to be strictly enforced in order to alleviate the spectacle of aliens subject to deportation orders and able to remain in this country for long periods of time by employing dilatory legal tactics. See H. R. Rep. No. 565, 87th Cong., 1st Sess. Since there is no time limit on petitions for rehearing or reconsideration, 8 CFR §§ 242.22, 103.5, permitting review of a final order of deportation merely because a timely petition for review of an administrative refusal to reopen the proceedings has been filed would negate the congressional purpose behind the insistence on timely filing in §106 (a)(1). Lopes v. U. S. Department of Justice, 356 F. 2d 986, cert. denied, post, p. 839.

The Court holds only that “no deportation order may be entered unless it is found by clear, unequivocal, and convincing evidence that the facts alleged as grounds for deportation are true.” (Italics added.) The ground alleged for deportation of Woodby was that she had “engaged in prostitution after entry.” It has never been contended that this ground was not properly established. In fact it is conceded that Woodby engaged in prostitution. The only factual dispute involved in her case centers on the question whether her activities arose from duress and ended when the conditions compelling her to stray ceased to exist. It seems clear to me that since Woodby is raising duress as an affirmative defense she bears the burden of establishing all elements of that defense. See Matter of M— , 7 I. & N. Dec. 251. And the record clearly shows that both the administrative authorities and the Court of Appeals rejected Woodby’s “bizarre” story. Under familiar principles those findings are binding on this Court, Universal Camera Corp. v. Labor Board, 340 U. S. 474, and nothing in what the Court holds today affects that conclusion.

I regret that my powers of persuasion with my Brethren are not sufficient to prevent this encroachment upon the function of the Congress which will place an undue and unintended burden upon the Government in deportation cases. I dissent.

       Section 241 (a) (2) of the Immigration and Nationality Act of 1952, 66 Stat. 204, 8 U. S. C. § 1251 (a)(2), provides for deportation of any alien who “entered the United States without inspection or at any time or place other than as designated by the Attorney General ...” Prior to 1952, the Government was required to bring deportation proceedings within five years of an alleged illegal entry, 39 Stat. 889 (1917), as amended, 8 U. S. C. § 155 (a) (1946 ed.). Thus, under the prior law, the petitioner would not have been subject to deportation proceedings commenced after 1943. However, this time limit was retroactively eliminated by the 1952 Act, §241 (d), 66 Stat. 208, 8 U. S. C. §1251 (d). See Developments in the Law, Immigration and Nationality, 66 Harv. L. Rev. 643, 683-684.

       In conformity with its usual practice, the Board made its own independent determination of the factual issues after de novo examination of the record. See Gordon & Rosenfield, Immigration Law and Procedure 46-47 (1959).

       350 F. 2d 894.

       350 F. 2d, at 901. The. court adopted the reasoning of the opinion which Judge Friendly had filed as a dissent to the original decision. Judges Waterman and Smith, who had formed the original majority, dissented.

       Section 241 (a) (12) of the Immigration and Nationality Act of 1952, 66 Stat. 207, 8 U. S. C. § 1251 (a) (12), provides for the deportation of any alien who “by reason of any conduct, behavior or activity at any time after entry became a member of any of the classes specified in paragraph (12) of section 212 (a) . . . .” Among the classes specified in §212 (a) (12) of the Act, 66 Stat. 182, 8 U. S. C. § 1182 (a) (12), are “Aliens who are prostitutes or who have engaged in prostitution. . . .”

       75 Stat. 651 (1961), 8 U. S. C. § 1105a (a)(4).

       66 Stat. 210 (1952), 8 U. S. C. § 1252 (b) (4).

       See Jaffe, Administrative Law: Burden of Proof and Scope of Review, 79 Harv. L. Rev. 914 (1966); Comment, 41 N. Y. U. L. Rev. 622 (1966); Standard of Proof in Deportation Proceedings, 18 Stan. L. Rev. 1237 (1966).

       See McCormick, Evidence 681-685 (1954); 9 Wigmore, Evidence §2497 (3d ed. 1940).

        E. g., Rutkin v. United States, 343 U. S. 130, 135. For discussion of variations of and alternatives to the usual rule, see Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149, 1157-1163 (1960).

       H. R. Rep. No. 1086, 87th Cong., 1st Sess., 22.

       “Judicial Review of Orders of Deportation and Exclusion
      “Sec. 106. (a) The procedure prescribed by, and all the provisions of the Act of December 29, 1950, as amended (64 Stat. 1129; 68 Stat. 961; 5 U. S. C. 1031 et seq.), shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation . . . except that—
      “(4) . . . the petition shall be determined solely upon the administrative record upon which the deportation order is based and the Attorney General’s findings of fact, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive . . . .” 75 Stat. 651 (1961), 8 U. S. C. § 1105a (a).

       This has been recognized by the Board of Immigration Appeals itself:
      “Finally, it is important to bear in mind the distinction between the burden of proof and the quality of the evidence which is required to establish that burden successfully. It is to be noted that subsection (b)(4) of section 242 of the act does not speak of the burden of proof but of the quality of the evidence which the Service must produce before deportability can validly be found. . . .” Matter of V—, 7 I. & N. Dec. 460, 463.

       S. Rep. No. 1137, 82d Cong., 2d Sess., 30. The House Report contains substantially identical language. H. R. Rep. No. 1365, 82d Cong., 2d Sess., 57.

       See McBaine, Burden of Proof: Degrees of Belief, 32 Calif. L. Rev. 242 (1944). See also 9 Wigmore, Evidence §§ 2488-2493, 2497-2498 (3d ed. 1940).

        Schneiderman v. United States, 320 U. S. 118; Baumgartner v. United States, 322 U. S. 665; Nowak v. United States, 356 U. S. 660; Chaunt v. United States, 364 U. S. 350.

         Gonzales v. Landon, 350 U. S. 920; Nishikawa v. Dulles, 356 U. S. 129. But see § 349 (c) of the Immigration and Nationality Act, 75 Stat. 656 (1961), 8 U. S. C. § 1481 (c).

       This standard, or an even higher one, has traditionally been imposed in cases involving allegations of civil fraud, and in a variety of other kinds of civil cases involving such issues as adultery, illegitimacy of a child bom in wedlock, lost wills, oral contracts to make bequests, and the like. See 9 Wigmore, Evidence § 2498 (3d ed. 1940).

       This standard of proof applies to all deportation cases, regardless of the length of time the alien has resided in this country. It is perhaps worth pointing out, however, that, as a practical matter, the more recent the alleged events supporting deportability, the more readily the Government will generally be able to prove its allegations by clear, unequivocal, and convincing evidence.

       Section 106 (a)(1) of the Act, 75 Stat. 651 (1961), 8 U. S. C. § 1105a (a)(1), provides that a petition for judicial review must be filed with the Court of Appeals not later than six months after a final order of deportation. In No. 40, Woodby, the petitioner’s appeal to the Board of Immigration Appeals was dismissed on March 8, 1963, and a motion for reconsideration was denied on May 27, 1963. Petition for review by the Court of Appeals was filed more than six months after the Board upheld the deportation order, but within six months after the denial of the motion to reconsider. The Court of Appeals did not pass on the question whether, in such circumstances, its power of review was limited to consideration whether the denial of the motion for reconsideration was an abuse of discretion, or whether it might also assess in full the validity of the deportation order. Following the decision of the Court of Appeals in this case, the Court of Appeals for the Ninth Circuit held, in similar circumstances, that it had authority to undertake full review of the deportation order, as well as the denial of the motion to reconsider. Bregman v. Immigration and Naturalization Service, 351 F. 2d 401. In light of the Bregman decision, the Government before this Court expressly abandoned its contention that in this case the courts are limited to reviewing the denial of the motion to reconsider. See the Government’s brief in No. 40, Woodby, p. 8, n. 3.

       Thus the judicial review provision of the Administrative Procedure Act, 5 U. S. C. § 1009 (e)(5), limits the scope of review to a determination of support by “substantial evidence,” and 5 U. S. C. § 1006 limits the agencies to acting on “reliable, probative, and substantial evidence.” This pattern has traditionally been held satisfied when the agency decides on the preponderance of the evidence.

       In Giova v. Rosenberg, 379 U. S. 18, this Court held only that denial of a petition to reopen or reconsider is reviewable. The Court did not specify the scope of review to be applied. The Court may be depending upon a concession by the Government on this point, but it is clear that jurisdiction cannot be waived. King Bridge Co. v. Otoe County, 120 U. S. 225; Good Shot v. United States, 179 U. S. 87.