author: Mr. Chief Justice Burger Mr. Justice Douglas,

text:
    LEMON et al. v. KURTZMAN, SUPERINTENDENT OF PUBLIC INSTRUCTION OF PENNSYLVANIA, et al.
    No. 71-1470.
    Argued November 8, 1972
    Decided April 2, 1973

      Mr. Justice White concurred in the judgment.
    Burger, C. J., announced the judgment of the Court and an opinion in which Blackmun, Powell, and Rehnquist, JJ., joined. White, J., concurred in the judgment. Douglas, J., filed a dissenting opinion, in which Brennan and Stewart, JJ., joined, post, p. 209. Marshall, J., took no part in the consideration or decision of the ease.

      David P. Bruton argued the cause for appellants. With him on the briefs were Melvin L. Wulf, Sanford J. Rosen, and Franklin C. Salisbury.

      William B. Ball argued the cause for appellees. With him on the brief for appellee Commonwealth of Pennsylvania were J. Shane Creamer, Attorney General, Samuel Rappaport, Joseph G. Skelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., and William D. Valente. Henry T. Reath filed a brief for appellee Pennsylvania Association of Independent Schools.
   Mr. Chief Justice Burger

announced the judgment of the Court and an opinion in which Mr. Justice Black-mun, Mr. Justice Powell, and Mr. Justice Rehnquist join.

On June 28, 1971, we held that the Pennsylvania statutory program to reimburse nonpublic sectarian schools for certain secular educational services violated the Establishment Clause of the First Amendment. The case was remanded to the three-judge District Court for further proceedings consistent with our opinion. Lemon v. Kurtzman, 403 U. S. 602 (1971) (Lemon I). On remand, the District Court entered summary judgment in favor of appellants and enjoined payment, under Act 109, of any state funds to nonpublic sectarian schools for educational services performed after June 28, 1971. The District Court’s order permitted the State to reimburse nonpublic sectarian schools for services provided before our decision in Lemon I. Appellants made no claim that appellees refund all sums paid under the Pennsylvania statute struck down in Lemon I.

Appellants, the successful plaintiffs of Lemon I, now challenge the limited scope of the District Court’s injunction. Specifically, they assert that the District Court erred in refusing to enjoin payment of some $24 million set aside by Pennsylvania to compensate nonpublic sectarian schools for educational services rendered by them during the 1970-1971 school year. We noted probable jurisdiction, 406 U. S. 943 (1972), and we affirm the judgment of the District Court.

(1)

The specifics of the Pennsylvania statutory scheme held unconstitutional in Lemon I need be recalled only briefly. Under Act 109, the participating nonpublic schools of Pennsylvania were to be reimbursed by the State for certain educational services provided by the schools pursuant to purchase-of-service contracts with the State. According to the terms of the contracts, the schools were to provide teachers, textbooks, and instructional materials for mathematics, modern foreign language, physical science, and physical education courses— “secular” courses of instruction. The State was not only to compensate the schools for the services provided, but also to undertake continuing surveillance of the instructional programs to insure that the services purchased were not provided in connection with “any subject matter expressing religious teaching, or the morals or forms of worship of any sect.” See Lemon I, supra, at 609-610.

Under § 5607 of the Act, any nonpublic school seeking reimbursement was to “maintain such accounting procedures, including maintenance of separate funds and accounts pertaining to the cost of secular educational service, as to establish that it actually expended in support of such service an amount of money equal to the amount of money sought in reimbursement.” To this end, the school accounts were to be subject to audit by the State Auditor General. Actual payment was to be made by the Superintendent of Public Instruction “in four equal installments payable on the first day of September, December, March and June of the school term following the school term in which the secular educational service was rendered.” (Emphasis supplied.)

In Lemon I, we held that, although Act 109 had a secular legislative purpose, the Act fostered “excessive entanglement” of church schools and State through the requirement of ongoing state scrutiny of the educational programs of sectarian schools, the statutory post-audit procedures, and potential involvement in the political process. We found it unnecessary to decide whether Act 109 was constitutionally infirm on the additional ground that the “primary effect” of any state payments to church-related schools would be to promote the cause of religion in contravention of the Establishment Clause of the First Amendment.

(2)

Against this backdrop, we turn to the events relevant to this appeal. On June 19, 1968, Act 109 became law. Approximately one month later, appellants publicly declared their intention of challenging the constitutionality of the new legislation. During the following six months, the State took steps to implement the Act, promulgating regulations and, in January 1969, entering for the first time into service contracts for the 1968-1969 school year (then in progress) with approximately 1,181 nonpublic schools throughout Pennsylvania. The schools submitted schedules in June 1969, at the conclusion of the 1968-1969 school year, specifying the precise items of expense during that year for which they would seek reimbursement, to be made during the 1969-1970 school year. On June 3, 1969, appellants filed their complaint, asking that Act 109 be declared unconstitutional and its enforcement enjoined.

Simultaneously with their 1969 complaint, appellants filed a motion for a preliminary injunction to restrain the responsible state officials from “paying or processing for paying any funds pursuant to [Act 109].” However, appellants abandoned the request for preliminary relief in a letter of August 28, 1969, from their counsel to Judge Troutman. Appellants, describing their position as a “sensible recognition of the practical realities of the situation, . . . withdrew from any attempt to prevent initial payment to the nonpublic schools scheduled for September 2 [1969].” In the same letter, appellants’ counsel mentioned the payments scheduled for December 2, 1969, but in fact no attempt was ever made to enjoin those reimbursements.

On November 29,1969, a divided District Court granted appellees’ motion to dismiss appellants’ complaint for failure to state a claim on which relief could be granted. Appellants filed a notice of appeal to this Court on December 17, 1969; at no time before or after probable jurisdiction was noted on April 20, 1970, did appellants move for interlocutory relief pending appeal, even though on January 15, 1970, the schools entered into service contracts with the State for the 1969-1970 school year. Consequently, the District Court had no occasion to consider the exercise of injunctive power pendente lite.

In September 1970, the schools began performing services for the 1970-1971 school year, compensable under the terms of Act 109; and on January 15, 1971, contracts were entered into for that school year. On June 28,1971, we held Act 109 unconstitutional and remanded the cause to the District Court for further proceedings consistent with our opinion. Not until appellants filed their motion for summary judgment, in August 1971, did they first indicate their intention to prevent reimbursement under Act 109 for the services already provided by the schools during the 1970-1971 school year.

(3)

Claims that a particular holding of the Court should be applied retroactively have been pressed on us frequently in recent years. Most often, we have been called upon to decide whether a decision defining new constitutional rights of a defendant in a criminal case should be applied to convictions of others that predated the new constitutional development. E. g., Robinson v. Neil, 409 U. S. 505 (1973); Adams v. Illinois, 405 U. S. 278 (1972); Desist v. United States, 394 U. S. 244 (1969); Stovall v. Denno, 388 U. S. 293 (1967); Johnson v. New Jersey, 384 U. S. 719 (1966); Tehan v. Shott, 382 U. S. 406 (1966); Linkletter v. Walker, 381 U. S. 618 (1965). But “in the last few decades, we have recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases.” Chevron Oil Co. v. Huson, 404 U. S. 97, 106 (1971); Hanover Shoe v. United Shoe Machinery Corp., 392 U. S. 481 (1968); Simpson v. Union Oil Co., 377 U. S. 13 (1964); England v. State Board of Medical Examiners, 375 U. S. 411 (1964). We have approved nonretroactive relief in civil litigation, relating, for ex-ampié, to the validity of municipal financing founded upon electoral procedures later declared unconstitutional, Cipriano v. City of Houma, 395 U. S. 701 (1969), and City of Phoenix v. Kolodziefski, 399 U. S. 204 (1970); or to the validity of elections for local officials held under possibly discriminatory voting laws, Allen v. State Board of Elections, 393 U. S. 544 (1969). In each of these cases, the common request was that we should reach back to disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a different understanding of the controlling judge-made law from the rule that ultimately prevailed.

Appellants urge, as they did in the District Court, a strange amalgam of flexibility and absolutism. Appellants assure us that they do not seek to require the schools to disgorge prior payments received under Act 109; in the. same breath, appellants insist that the presently disputed payment be enjoined because an unconstitutional statute “confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.” Norton v. Shelby County, 118 U. S. 425, 442 (1886). Conceding that we have receded from Norton in a host of criminal decisions and in other recent constitutional decisions relating to municipal bonds, appellants nevertheless view those precedents as departures from the established norm of Norton. We disagree.

The process of reconciling the constitutional interests reflected in a new rule of law with reliance interests founded upon the old is “among the most difficult of those which have engaged the attention of courts, state and federal . . . .” Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374 (1940). Consequently, our holdings in recent years have emphasized that the effect of a given constitutional ruling on prior conduct “is subject to no set ‘principle of absolute retroactive invalidity’ but depends upon a consideration of 'particular relations . . . and particular conduct . . . of rights claimed to have become vested, of status, of prior determinations deemed to have finality’; and 'of public policy in the light of the nature both of the statute and of its previous application.’ ” Linkletter, supra, at 627, quoting from Chicot County Drainage Dist., supra, at 374. However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity. Appellants offer no persuasive reason for confining the modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves perceive none.

In Linkletter, the Court suggested a test, often repeated since, embodying the recent balancing approach; we looked to “the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Id., at 629. Those guidelines are helpful, see infra, at 201-203, but the problem of Linkletter and its progeny is not precisely the same as that now before us. Here, we are not considering whether we will apply a new constitutional rule of criminal law in reviewing judgments of conviction obtained under a prior standard; the problem of the instant case is essentially one relating to the appropriate scope of federal equitable remedies, a problem arising from enforcement of a state statute during the period before it had been declared unconstitutional. True, the temporal scope of the injunction has brought the parties back to this Court, and their dispute calls into play values not unlike those underlying Linkletter and its progeny. But however we state the issue, the fact remains that we are asked to reexamine the District Court's evaluation of the proper means of implementing an equitable decree. Cf. United States v. Estate of Donnelly, 397 U. S. 286, 295 (1970) ; id., at 296-297 (Harlan, J., concurring).

In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow. Swann v. Charlotte-Mecklenburg Board of Education, 402 U. S. 1, 15, 27 n. 10 (1971). Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary, what is fair, and what is workable. “Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs." Brown v. Board of Education, 349 U. S. 294, 300 (1955). Mr. Justice Douglas, speaking for the Court, has said,

“The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims.” Hecht Co. v. Bowles, 321 TJ. S. 321, 329-330 (1944).

See also Holmberg v. Armbrecht, 327 U. S. 392, 396 (1946).

In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding that those interests have constitutional roots.

(4)

The constitutional fulcrum of Lemon I was the excessive entanglement of church and state fostered by Act 109. We found it unnecessary to decide whether the “legislative precautions [of Act 109] restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses.” 403 U. S., at 613-614. For, as we said of both Act 109 and the similar Rhode Island provision, “[a] comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed .... These prophylactic contacts will involve excessive and enduring entanglement between state and church.” Id., at 619. We further emphasized the reciprocal threat to First Amendment interests from enmeshing the divisive issue of direct aid to religious schools in the traditional political processes. Id., at 622-624.

The sensitive values of the Religion Clauses do not readily lend themselves to quantification but, despite the inescapable imprecision, we think it clear that the proposed distribution of state funds to Pennsylvania’s nonpublic sectarian schools will not substantially undermine the constitutional interests at stake in Lemon I. Act 109 required the Superintendent of Public Instruction to ensure that educational services to be reimbursed by the State were kept free of religious influences. Under the Act, the Superintendent's supervisory task was to have been completed long ago, during the 1970-1971 school year itself; nothing in the record suggests that the Superintendent did not faithfully execute his duties according to law. Hence, payment of the present disputed sums will compel no further state oversight of the instructional processes of sectarian schools. By the same token, since the constitutionality of Act 109 is now settled, there is no further potential for divisive political conflict among the citizens and legislators of Pennsylvania over the desirability or degree of direct state aid to sectarian schools under Act 109.

Two problems having constitutional overtones remain, but their resolution requires no compromise of the basic principles of Lemon I. There is, first, the impact of the single and final post-audit. The record indicates that the post-audit process will involve only a ministerial “cleanup” function, that of balancing expenditures and receipts in the closing accounting — undertaken only once, and in that setting a minimal contact of the State with the affairs of the schools. Second, there is the question of impinging on the Religion Clauses from the fact of any payment that provides any state assistance or aid to sectarian schools — the issue we did not reach in Lemon I. Yet even assuming a cognizable constitutional interest in barring any state payments, under the District Court holding that interest is implicated only once under special circumstances that will not recur. There is no present risk of significant intrusive administrative entanglement, since only a final post-audit remains and detailed state surveillance of the schools is a thing of the past. At the same time, that very process of oversight — now an accomplished fact — assures that state funds will not be applied for any sectarian purposes. Finally, as will appear, even this single proposed payment for services long since passing state scrutiny reflects no more than the schools’ reliance on promised payment for expenses incurred by them prior to June 28, 1971.

Offsetting the remote possibility of constitutional harm from allowing the State to keep its bargain are the expenses incurred by the schools in reliance on the state statute inviting the contracts made and authorizing reimbursement for past services performed by the schools. It is well established that reliance interests weigh heavily in the shaping of an appropriate equitable remedy. City of Phoenix v. Kolodziejski, 399 U. S. 204 (1970); Cipriano v. City of Houma, 395 U. S. 701 (1969); Allen v. State Board of Elections, 393 U. S. 544 (1969). That there was such reliance by the schools is reflected by a well-supported District Court finding. The District Court found that there was no dispute “that to deny the church-related schools any reimbursement for their services rendered would impose upon them a substantial burden which would be difficult for them to meet.” 348 F. Supp. 300, 304-305.

The significance of appellee schools’ reliance is reinforced by the fact that appellants’ tactical choice not to press for interim injunctive suspension of payments or contracts during the pendency of the Lemon I litigation may well have encouraged the appellee schools to incur detriments in reliance upon reimbursement by the State under Act 109. In June 1969, appellants initiated the litigation that culminated in Lemon I. Though initially appellants moved for a preliminary injunction to block the September 1969 payment of funds for services rendered during the 1968-1969 school year, for reasons of their own appellants withdrew the request. Funds were paid in September and December 1969, and in March and June 1970. In 1970, the State entered into new contracts with the nonpublic schools; appellants took no steps to block the making of these contracts or to prevent the State from disbursing funds, in September and December 1970, or March and June 1971, for services rendered during the 1969-1970 school year. Appellants, meanwhile, had filed a notice of appeal to this Court by the time the distribution of funds for the 1969-1970 school year began. It was only after our decision in Lemon I — six months after the contracts for the 1970-1971 school year were perfected and after all services under those contracts had been performed — that appellants asserted their intention to block the payments due, beginning in the fall of 1971. Thus, for nearly two years, the State and the schools proceeded to act on the assumption that appellants would continue to adhere to a “sensible recognition of the practical realities of the situation.”

There has been no demonstration by the appellee schools of the precise amount of any detriment incurred by them during the 1970-1971 school year in the expectation of reimbursement by the State. The complexity of such a determination for each of Pennsylvania’s 1,181 nonpublic schools that contracted with the State under Act 109 is readily apparent. But we need not dwell on the matter of uncertainty. On this record the District Court could reasonably find reliance on the part of the appellee schools and reasonably could conclude that no more was needed to demonstrate retrospectively the degree of their reliance.

It is argued, though, that the schools were foolhardy to rely on any reimbursement by the State whatever, in view of the constitutional cloud over the Pennsylvania program from the outset. We conclude, however, that our holding in Lemon I “decid [ed] an issue of first impression whose resolution was not clearly foreshadowed.” Chevron Oil Co. v. Huson, 404 U. S., at 106. A three-judge district court, with one dissent, upheld Act 109. Soon after, another three-judge district court in Rhode Island held unconstitutional the Rhode Island statutory scheme we considered together with Pennsylvania’s program in Lemon I. Nor were district courts alone in disagreement over the constitutionality of Lemon-style plans to provide financial assistance to sectarian schools. This Court was itself divided when the issue was ultimately resolved after full briefing and argument. And the Court acknowledged “that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Lemon I, 403 U. S., at 612.

That there would be constitutional attack on Act 109 was plain from the outset. But this is not a case where it could be said that appellees acted in bad faith or that they relied on a plainly unlawful statute. In this case, even the clarity of hindsight is not persuasive that the constitutional resolution of Lemon I could be predicted with assurance sufficient to undermine appellees’ reliance on Act 109.

(5)

In the end, then, appellants’ position comes down to this: that any reliance whatever by the schools was unjustified because Act 109 was an “untested” state statute whose validity had never been authoritatively determined. The short answer to this argument is that governments must act if they are to fulfill their high responsibilities. As one scholar has observed, the diverse state governments were preserved by the Framers “as separate sources of authority and organs of administration — a point on which they hardly had a choice.” H. Wechsler, Principles, Politics, and Fundamental Law 50 (1961).

Appellants ask, in effect, that we hold those charged with executing state legislative directives to the peril of having their arrangements unraveled if they act before there has been an authoritative judicial determination that the governing legislation is constitutional. Appellants would have state officials stay their hands until newly enacted state programs are “ratified” by the federal courts, or risk draconian, retrospective decrees should the legislation fall. In our view, appellants’ position could seriously undermine the initiative of state legislators and executive officials alike. Until judges say otherwise, state officers — the officers of Pennsylvania— have the power to carry forward the directives of the state legislature. Those officials may, in some circumstances, elect to defer acting until an authoritative judicial pronouncement has been secured; but particularly when there are no fixed and clear constitutional precedents, the choice is essentially one of political discretion and one this Court has never conceived as an incident of judicial review. We do not engage lightly in post hoc evaluation of such political judgment, founded as it is on “one of the first principles of constitutional adjudication — the basic presumption of the constitutional validity of a duly enacted state or federal law.” San Antonio School District v. Rodriguez, ante, p. 1, at 60 (1973) (Stewart, J., concurring).

Federalism suggests that federal court intervention in state judicial processes be appropriately confined. See Younger v. Harris, 401 U. S. 37 (1971), and companion cases. Likewise, federalism requires that federal injunctions unrelated to state courts be shaped with concern and care for the responsibilities of the executive and legislative branches of state governments. In short, the propriety of the relief afforded appellants by the District Court, applying familiar equitable principles, must be measured against the totality of circumstances and in light of the general principle that, absent contrary direction, state officials and those with whom they deal are entitled to rely on a presumptively valid state statute, enacted in good faith and by no means plainly unlawful.

Affirmed.

Mr. Justice White concurs in the judgment.

Mr. Justice Marshall took no part in the consideration or decision of this case.

Mr. Justice Douglas,

with whom Mr. Justice Brennan and Mr. Justice Stewart concur,

dissenting.

There is as much a violation of the Establishment Clause of the First Amendment whether the payment from public funds to sectarian schools involves last year, the current year, or next year. Madison in his Remonstrance stated: “[T]he same authority which can force a citizen to contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment . ...”

Whether the grant is for teaching last year or at the present time, taxpayers are forced to contribute to sectarian schools a part of their tax dollars.

The ban on that practice is not new. Lemon I, 403 U. S. 602, did not announce a change in the law. We had announced over and over again that the use of taxpayers’ money to support parochial schools violates the First Amendment, made applicable to the States by virtue of the Fourteenth.

We said in unequivocal words in Everson v. Board of Education, 330 U. S. 1, 16: “No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion.” We reiterated the same idea in Zorach v. Clauson, 343 U. S. 306, 314, in McGowan v. Maryland, 366 U. S. 420, 443, and in Torcaso v. Watkins, 367 U. S. 488, 493. We repeated the same idea in McCollum, v. Board of Education, 333 U. S. 203, 210, and added that a State’s tax-supported public schools could not be used “for the dissemination of religious doctrines” nor could a State provide the church “pupils for their religious classes through use of the State’s compulsory public school machinery.” Id., at 212.

Mr. Justice Brennan in his separate opinion in Lemon I put the matter succinctly when he said,

“[F]or more than a century, the consensus, enforced by legislatures and courts with substantial consistency, has been that public subsidy of sectarian schools constitutes an impermissible involvement of secular with religious institutions.” 403 U. S. 642, 648-649.

So there was clear warning that those who proposed such subsidies were treading on unconstitutional ground. They can tender no considerations of equity that should allow them to profit from their unconstitutional venture.

The issues presented in this type of case are often caught up in political strategies, designed to turn judicial or legislative minorities into majorities. Lawyers planning trial strategies are familiar with those tactics. But those who use them and lose have no equities that make constitutional what has long been declared to be unconstitutional. From the days of Madison, the issue of subsidy has never been a question of the amount of the subsidy but rather a principle of no subsidy at all.

The problem of retroactivity involved in criminal cases is therefore inapplicable. There the question is whether the newly announced rule goes to the fairness of the trial that had been completed under the old rule. See Johnson v. New Jersey, 384 U. S. 719, 726-729. Here there is no new rule supplanting an old rule. The rule of no subsidy has been the dominant one since the days of Madison. We deal with the normal situation that governs judicial decisions. Normally they determine legal rights and obligations with respect to events that have already transpired. By definition, courts decide disputes that have already arisen. A losing litigant has no equity in the fact that he “relied” on advice that turned out to be unreliable or wrong. A decision overruling a prior authority may at times deny a litigant due process if applied retroactively. See Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673. Only a compelling circumstance has been held to limit a judicial ruling to prospective applications. The disruptive effect in criminal law enforcement is one example. Stovall v. Denno, 388 U. S. 293, 300. Likewise, a ruling on the legality of municipal bonds has been given only prospective application where many prior bonds had been issued in good faith on a contrary assumption. City of Phoenix v. Kolodziejski, 399 U. S. 204, 213-215.

Retroactivity of the decision in Lemon I goes to the very core of the integrity of the judicial process. Constitutional principles do not ride on the effervescent arguments advanced by those seeking to obtain unconstitutional subsidies. The happenstance of litigation is no criterion for dispensing these unconstitutional subsidies. No matter the words used for the apologia, the subsidy today given to sectarian schools out of taxpayers’ monies exceeds by far the “three pence” which Madison condemned in his Remonstrance.

I would reverse the judgment below and adhere to the constitutional principle announced in Lemon I.

       Nonpublic Elementary and Secondary Education Act, June 19, 1968, No. 109, Pa. Stat. Ann., Tit. 24, §§5601-5609 (Supp. 1971).

       In Linkletter v. Walker, 381 U. S. 618, 629 (1965), the Court recalled Mr. Justice Cardozo’s statement that “the federal constitution has no voice upon the subject,” citing Great Northern R. Co. v. Sunburst Oil & Refining Co., 287 U. S. 358, 364 (1932). In Sunburst, the Court refused to accept the petitioner’s contention that “[a]dherence to precedent as establishing a governing rule for the past in respect of the meaning of a statute is ... a denial of due process when coupled with the declaration of an intention to refuse to adhere to it in adjudicating any controversies growing out of the transactions of the future.” Id., at 363-364. Instead, the Court held that
      “A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward.” Id., at 364.

        Sunburst does not, of course, suggest that we may ignore constitutional interests in deciding whether to attach retrospective effect to a constitutional decision of this Court.

       See Lemon v. Kurtzman, 403 U. S. 602 (1971):
      “If the government closed its eyes to the manner in which these grants are actually used it would be allowing public funds to promote sectarian education. If it did not close its eyes but undertook the surveillance needed, it would, I fear, intermeddle in parochial affairs in a way that would breed only rancor and dissension.” Id., at 640 (Douglas, J., concurring).
      “The Court thus creates an insoluble paradox for the State and the parochial schools. The State cannot finance secular instruction if it permits religion to be taught in the same classroom; but if it exacts a promise that religion not be so taught . . . and enforces it, it is then entangled in the 'no entanglement’ aspect of the Court’s Establishment Clause jurisprudence.” Id., at 668 (opinion of White, J.).
      Here, the “insoluble paradox” is avoided because the entangling supervision prerequisite to state aid has already been accomplished and need not enter into our present evaluation of the constitutional interests at stake in the proposed payment.

       We agree with the District Court that whether the payments in question constitute payments under valid contracts or a subsidy “makes no difference in our decision.” To characterize the payments as subsidies does not “lessen the reliance of the nonpublic schools on the payments or the subsequent hardship upon them if the payments are not made.” 348 F. Supp. 300, 304 n. 6.

       The District Court’s comment, in turn, reflects the following colloquy between that court and counsel for appellants, at the December 15, 1971, hearing after remand from this Court:
      “MR. SAWYER: I am perfectly willing to concede — and I think I must here; we have taken no evidence — that there was reliance. And I would like to state, so there is no question about that, that I am assuming there was reliance. I think as a practical matter, however, the schools continued to do what they were doing before.
      “JUDGE HASTIE: Reliance in the sense, I assume, of determining activities and expenditures in anticipation that this amount would be reimbursed?
      “MR. SAWYER: I know of a school that escrowed it, but I would think that would be rare. And I have to live with that, I think, unless I want to be prepared to go ahead and ask to take testimony and try to prove that wasn’t so. . . .”

       As to each school, the determination of actual reliance would be subtle, premised largely on credibility and not on facts of record. Nonreliance could not be assumed simply because expenditure levels remained constant before and after Act 109; any school might well assert that it would have reduced its educational expenditures in some particular but for the expectation of compensation for certain other expenditures incurred in connection with Act 109. Similarly, the inquiry could not be limited to expenditures for those items specified by the Act. Increased expenditures for any of the gamut of a school's activities might have been incurred in reliance on reimbursement for services covered by Act 109.

       According to the dissent, appellees can “tender no considerations of equity” because they had “clear warning” that they were “treading on unconstitutional ground.” The apparent premise for this assertion is the view that the Establishment Clause forbids any and all use of tax moneys to “support” or to “subsidize” sectarian schools. Yet the Court’s decisions, prior to and at the time of Lemon I, shied away from this sweeping application of the Establishment Clause, favoring instead particularized analysis of state involvement in religious schools, with the analysis based upon the facts and circumstances before us. Tilton v. Richardson, 403 U. S. 672 (1971);
        Walz v. Tax Comm’n, 397 U. S. 664, 669 (1970); Board of Education v. Allen, 392 U. S. 236, 242-243 (1968); Everson v. Board of Education, 330 U. S. 1, 14 (1947). There is, then, no basis for the dissent’s suggestion that the Court has been “unequivocal” in proscribing all state assistance to religious schools.

       This is not to say, of course, that the flexible range of federal injunctive powers should be curtailed so as to permit state officers to proceed with their business regardless of serious constitutional questions concerning state legislation. Indeed, a significant purpose of these tools is to preserve rights of all parties and to minimize unnecessary harm during the often protracted pendency of constitutional litigation.

       Memorial and Remonstrance Against Religious Assessments, 2 Writings of James Madison 183, 186 (G. Hunt ed. 1901). The Remonstrance is reprinted in Everson v. Board of Education, 330 U. S. 1, 63 (Rutledge, J., dissenting), and in Walz v. Tax Comm’n, 397 U. S. 664, 719 (Douglas, J., dissenting).

       The rule of Bruton v. United States, 391 U. S. 123, which rejected Delli Paoli v. United States, 352 U. S. 232, was given retrospective effect. We said, “The element of reliance is not persuasive, for Delli Paoli has been under attack from it's inception and many courts have in fact rejected it.” Roberts v. Russell, 392 U. S. 293, 295.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    FONTAINE v. UNITED STATES
    No. 71-6757.
    Argued February 28, 1973
    Decided April 2, 1973

      Steven M. Umin, by appointment of the Court, 409 U. S. 1005, argued the cause and filed a brief for petitioner.

      Samuel Huntington argued the cause for the United States. With him on the brief were Solicitor General Griswold, Assistant Attorney General Petersen, and Philip R. Monahan.

   Per Curiam.

On November 13, 1969, the petitioner was arraigned in a federal district court upon a charge of robbery of a federally insured bank. He executed a written waiver of his right to counsel and to a grand jury indictment, and pleaded guilty. Before accepting the plea, the trial judge, proceeding under Fed. Rule Crim. Proc. 11, addressed the petitioner personally. The petitioner acknowledged in substance that his plea was given voluntarily and knowingly, that he understood the nature of the charge and the consequences of the plea, and that he was in fact guilty. See McCarthy v. United States, 394 U. S. 459, 464-467; cf. Boykin v. Alabama, 395 U. S. 238, 242. The judge then accepted the guilty plea and subsequently sentenced the petitioner to 20 years in prison.

On August 6, 1971, the petitioner filed a motion under 28 U. S. C. § 2255 to vacate his sentence on the ground that his plea of guilty had been induced by a combination of fear, coercive police tactics, and illness, including mental illness. The District Judge who had accepted the petitioner’s plea and sentenced him to prison considered the motion but denied it without an evidentiary hearing; the District Judge reasoned that since the requirements of Rule 11 had been met, this collateral attack was per se unavailable, stating: “When the trial court has so questioned the accused about pleading guilty, the petitioner cannot now be heard to collaterally attack the record and deny what was said in open court.” The Court of Appeals for the Sixth Circuit affirmed on the same grounds.

Petitioner seeks certiorari to review that judgment; he urges that under the plain wording of § 2255 and our decision in Machibroda v. United States, 368 U. S. 487, he was entitled to an evidentiary hearing on his claims. Petitioner’s motion for relief under § 2255 sets out detailed factual allegations regarding alleged circumstances occurring after his arrest and before his appearance in court. Those allegations describe physical abuse and illness from a recent gunshot wound that required hospitalization which was documented by records tendered in support of his petition. The records also showed that a month following the plea he was again hospitalized for heroin addiction, for aggravation of the earlier gunshot wound and for other severe illnesses. Petitioner further alleges that prolonged interrogation continued during the period preceding his plea. All of this, he claims, coerced his confession, his waiver of counsel, and the uncounseled plea of guilty. It is elementary that a coerced plea is open to collateral attack. Machibroda v. United States, supra, at 493. See also Waley v. Johnston, 316 U. S. 101; Walker v. Johnston, 312 U. S. 275; Diamond v. United States, 432 F. 2d 35, 39; Crow v. United States, 397 F. 2d 284, 285-286. It is equally clear that § 2255 calls for a hearing on such allegations unless “the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief . . .

We need not take issue with the Government’s generalization that when a defendant expressly represents in open court, without counsel, that his plea is voluntary and that he waived counsel voluntarily, he “may not ordinarily” repudiate his statements to the sentencing judge. The objective of Fed. Rule Crim. Proc. 11, of course, is to flush out and resolve all such issues, but like any procedural mechanism, its exercise is neither always perfect nor uniformly invulnerable to subsequent challenge calling for an opportunity to prove the allegations.

On this record, we cannot conclude with the assurance required by the statutory standard “conclusively show” that under no circumstances could the petitioner establish facts warranting relief under § 2255; accordingly, we vacate the judgment of the Court of Appeals and remand to that court to the end that the petitioner be afforded a hearing on his petition in the District Court.

It is so ordered.

Mr. Justice White dissents.

       He had been arrested by state officers and had been in the custody of state police and in state jurisdiction until the time of the federal charge.

       The petitioner has also urged in this Court that his plea must be vacated because the transcript of his pleading fails to disclose an intelligent waiver of counsel. But this claim was not raised in the Court of Appeals or in the petition for certiorari, and we accordingly express no view upon the question.


text:
    UNITED STATES v. INDRELUNAS
    No. 72-805.
    Decided April 16, 1973
   Per Curiam.

The Government, petitioner here, appealed to the Court of Appeals from a judgment in favor of respondent entered by the District Court on February 25,1971. The Court of Appeals dismissed the appeal, holding that final judgment had been entered in the action prior to February 25, 1971, and that therefore the Government’s appeal was untimely under the provisions of Fed. Rule App. Proc. 4. Foiles v. United States, 465 F. 2d 163 (CA7 1972). Since both parties implicitly concede that the jurisdiction of the Court of Appeals was based on the provisions of 28 U. S. C. § 1291, making final decisions of the district courts appealable, the correctness of the Court of Appeals’ decision depends on whether the District Court’s judgment of February 25, 1971, was a final decision. That question, in turn, depends on whether actions taken in the District Court previous to the February date amounted to the “entry of judgment” as that term is used in Fed. Rule Civ. Proc. 58.

Rule 58 provides in pertinent part that “[ejvery judgment shall be set forth on a separate document.” There was admittedly no such separate document filed in the District Court in this case prior to the February date, but the Court of Appeals held that the “separate document” requirement of Rule 58 was applicable only to those judgments described in clause (2) of the first sentence of the Rule, and that since the relief granted by the District Court in this action was not within the description contained in that clause, a “separate document” was not essential to the existence of a judgment. The Court of Appeals stated in its opinion that its holding was contrary to holdings of the Courts of Appeals for the Third, Fifth, and Tenth Circuits, respectively. 465 F. 2d, at 167. A conflict on an issue such as this is of importance and concern to every litigant in a federal court, since, as this case makes clear, the timeliness of appeals, as well as the timeliness of post-trial motions, may turn on the question of when judgment is entered. Consideration of the petition for certiorari and the response has led us to conclude that further briefs and oral arguments would not materially assist in our disposition of the case and, for the reasons hereafter stated, we grant certiorari and reverse the judgment of the Court of Appeals.

The underlying dispute between the Government and respondent related to the latter's liability to pay withholding taxes due from a corporation in which he was an officer. Respondent and one Foiles, a fellow corporate officer, were assessed for the unpaid taxes, made partial payments on the assessments, and then unsuccessfully pursued administrative remedies seeking a refund. At the conclusion of these efforts Foiles sued in the District Court for a refund. The Government answered, counterclaimed against Foiles for the balance due on the assessment, and filed a third-party complaint seeking like recovery against respondent. Issue was joined, trial had to a jury, and verdicts in the following form were returned in favor of both taxpayers:

“We, the jury, find for the plaintiff, Harry H. Foiles, and against the defendant, United States of America, in the amount claimed. . . .
“We, the jury, find against the defendant, United States of America, on the counterclaim, and in favor of the plaintiff, Harry H. Foiles. . . .
“We, the jury, find against the third-party plaintiff, United States of America, and in favor of the third-party defendant, Alphonse T. Indrelunas.”

The District Court’s civil docket entry following the recital of these forms of verdict contains the language “Enter judgment on the verdicts. Jury discharged.”

There was apparently no agreement as to the exact amount respondent and Foiles were to receive pursuant to the jury’s verdict at the time it was returned. On May 14, 1970, some 14 months later, a stipulation was filed in the District Court specifying the amount of refund to be paid to each of the prevailing parties. Within 60 days of this date, the Government filed a notice of appeal as to Foiles only, but this appeal was not pursued. Some eight months later, on motion by the Government, the District Court on February 25,1971, entered formal judgments, the one in favor of respondent being in the amount of $3,621.32 against the Government. The Government’s notice of appeal was from this judgment.

The Court of Appeals, in holding the Government’s notice of appeal untimely, decided that judgment had been actually entered on March 21, 1969, when the District Court clerk entered in the civil docket the notations described above. It held that the “separate document” requirement contained in Rule 58 applies only to the “complex” judgments described in clause (2) of that Rule. The court said that:

“[W]hen the jury verdict is clear and unequivocal, setting forth a general verdict with reference to the sole question of liability and where nothing remains to be decided and when no opinion or memorandum is written, as is the situation described in clause (1) of Rule 58, there is no requirement for a separate document to start the time limits for appeal running.” 465 F. 2d, at 167-168.

Rule 58 was substantially amended in 1963 to remove uncertainties as to when a judgment is entered and to expedite the entry of judgment by limiting the number of situations in which the court need rely on counsel for the prevailing party to prepare a form of judgment. The first sentence of the rule describes “simple” judgments, providing for recovery of only a sum certain, of costs, or of nothing. These clause (1) judgments are to be prepared, signed, and entered by the clerk without direction by the court. Clause (2) of that sentence deals with the more “complex” forms of judgment, which are to be entered by the clerk after the court approves the form of the judgment. The rule then continues that “[e]very judgment shall be set forth on a separate document,” and further states that “[a] judgment is effective only when so set forth and when entered as provided in Rule 79 (a).”

The reason for the “separate document” provision is clear from the notes of the advisory committee of the 1963 amendment. See Notes of Advisory Committee following Fed. Rule Civ. Proc. 58, reported in 28 U. S. C. Prior to 1963, there was considerable uncertainty over what actions of the District Court would constitute an entry of judgment, and occasional grief to litigants as a result of this uncertainty. See, a g., United States v. F. & M. Schaefer Brewing Co., 356 U. S. 227 (1958). To eliminate these uncertainties, which spawned protracted litigation over a technical procedural matter, Rule 58 was amended to require that a judgment was to be effective only when set forth on a separate document.

Professor Moore makes the following cogent observation with respect to the purpose of the separate-document provision of the rule:

“This represents a mechanical change that would be subject to criticism for its formalism were it not for the fact that something like this was needed to make certain when a judgment becomes effective, which has a most important bearing, inter alia, on the time for appeal and the making of post-judgment motions that go to the finality of the judgment for purposes of appeal.” 6A J. Moore, Federal Practice ¶ 58.04 [4.-2], at 58-161 (1972).

Again in the same work, the author notes:

“Although confusion may still arise at times, the current version of Rule 58 provides a greater degree of certainty as to when a judgment has been rendered and becomes effective. Thus, as previously pointed out, when the court’s decision, whether written or oral, is a simple grant of a sum certain or costs or that all relief be denied, the clerk is to prepare forthwith and sign a judgment which must be set forth on a separate document. Thereafter, the clerk is immediately to enter the judgment in the civil docket.” Id., at 58-180.

Here there was nothing meeting the requirement of the “separate document” provision of Rule 58 until February 25, 1971. The docket entry following the jury’s verdict simply reflected the jury’s determination as to the liability of the parties, without specifying an amount due; more importantly, notwithstanding the instructions of the court, it was not recorded on a separate document.

The Court of Appeals appears to have been motivated in its conclusion, at least in part, by what it felt to have been the capricious conduct of the Government in first seeking to appeal following the filing of the stipulation for damages, and then later insisting that at that time there had been no judgment which it could have appealed from. But whatever may be the appropriate sanctions available in a particular case for capricious conduct on the part of a litigant, we do not believe that a case-by-case tailoring of the “separate document” provision of Rule 58 is one of them. That provision is, as Professor Moore states, a “mechanical change” that must be mechanically applied in order to avoid new uncertainties as to the date on which a judgment is entered.

We grant the petition for certiorari, reverse the judgment of the Court of Appeals, and remand for further proceedings consistent with this opinion.

It is so ordered.

       Fed. Rule Civ. Proc. 54(a) provides in part that “‘[j]udgment’ as used in these rules includes a decree and any order from which an appeal lies.”

       Rule 58 provides:
      “Subject to the provisions of Rule 54 (b): (1) upon a general verdict of a jury, or upon a decision by the court that a party shall recover only a sum certain or costs or that all relief shall be denied, the clerk, unless the court otherwise orders, shall forthwith prepare, sign, and enter the judgment without awaiting any direction by the court; (2) upon a decision by the court granting other relief, or upon a special verdict or a general verdict accompanied by answers to interrogatories, the court shall promptly approve the form of the judgment, and the clerk shall thereupon enter it. Every judgment shall be set forth on a separate document. A judgment is effective only when so set forth and when entered as provided in Rule 79 (a). Entry of the judgment shall not be delayed for taxing of costs. Attorneys shall not submit forms of judgment except upon direction of the court, and these directions shall not be given as a matter of course.”

       See Levin v. Wear-Ever Aluminum, 427 F. 2d 847 (CA3 1970); Pure Oil Co. v. Boyne, 370 F. 2d 121 (CA5 1966); United States v. Evans, 365 F. 2d 95 (CA10 1966). The decision may also conflict with a recent Fourth Circuit case. Superior Life Insurance Co. v. United States, 462 F. 2d 945 (CA4 1972).


author: Mr. Chief Justice Burger

text:
    BROWN et al. v. UNITED STATES
    No. 71-6193.
    Argued December 7, 1972
    Decided April 17, 1973
    Btjrger, C. J., delivered the opinion for a unanirnous Court.

      Lowell W. Lundy argued the cause and filed a brief for petitioners.

      Mark L. Evans argued the cause for the United States. On the brief were Solicitor General Griswold, Assistant Attorney General Petersen, Deputy Solicitor General Lacovara, William Bradford Reynolds, and Roger A. Pauley.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

Petitioners were convicted by a jury of transporting stolen goods and of conspiracy to transport stolen goods in interstate commerce, contrary to 18 U. S. C. § 2314 and 18 U. S. C. § 371. The central issue now is whether petitioners have standing to challenge the lawfulness of the seizure of merchandise stolen by them but stored in the premises of one Knuckles, a coconspirator. At the time of the seizure from Knuckles, petitioners were in police custody in a different State. Knuckles successfully challenged the introduction of the stolen goods seized from his store under a faulty warrant, and his case was separately tried.

The evidence against petitioners is largely uncontroverted. Petitioner Brown was the manager of a warehouse in Cincinnati, Ohio, owned by a wholesale clothing and household goods company. He was entrusted with the warehouse keys. Petitioner Smith was a truck driver for the company. During 1968 and 1969, the company had experienced losses attributed to pilferage amounting to approximately $60,000 each year. One West, a buyer and supervisor for the company, recovered a slip of paper he had seen drop from Brown’s pocket. On the slip, in Brown’s handwriting, was a list of warehouse merchandise, together with a price on each item that was well below wholesale cost. West estimated that the lowest legitimate wholesale price for these items would have been a total of about $6,400, while the total as priced by Brown’s list was $2,200. The police were promptly notified and set up a surveillance of the warehouse. Ten days later, petitioners were observed wheeling carts containing boxes of merchandise from the warehouse to a truck. From a concealed point, the police took 20 photographs of petitioners loading the merchandise onto the truck. Petitioners then locked the warehouse, and drove off. They were followed and stopped by the police, placed under arrest, advised of their constitutional rights, and, with the loaded truck, taken into custody to police headquarters. The goods in the truck had not been lawfully taken from the warehouse and had a total value of about $6,500.

Following their arrest, and after being fully informed of their constitutional rights, both petitioners made separate confessions to police indicating that they had conspired with Knuckles to steal from the warehouse, that they had stolen goods from the warehouse in the past, and that they had taken these goods, on two occasions about two months before their arrest, to Knuckles’ store in Manchester, Kentucky. Petitioners also indicated that they had “sold” the previously stolen goods on delivery to Knuckles for various amounts of cash. Knuckles’ store was then searched pursuant to a warrant, and goods stolen from the company, worth over $100,000 in retail value, were discovered. Knuckles was at the store during the search, but petitioners were in custody in Ohio.

Prior to trial, petitioners and Knuckles moved to suppress the stolen merchandise found at Knuckles’ store. The prosecution conceded that the warrant for the search of Knuckles’ store was defective. The District Court held a hearing on petitioners’ motion to suppress the evidence. Petitioners, however, alleged no proprietary or possessory interest in Knuckles’ premises or in the goods seized there, nor was any evidence of such an interest presented to the District Court. After the hearing, the District Court granted Knuckles’ motion to suppress the goods seized, but denied petitioners’ motion for lack of standing. The charges against Knuckles were severed for separate trial.

At petitioners’ trial, stolen merchandise seized from Knuckles’ store was received in evidence. The events leading' to petitioners’ arrests upon leaving the warehouse and while they were in possession of stolen goods were fully described by police officers who were eyewitnesses. The 20 photographs taken of the crime in progress were admitted into evidence. There was additional incriminating testimony by the owner of the service station from whom petitioners rented trucks used in the thefts, and by five witnesses who saw petitioners unloading boxes from a truck late at night and carrying the boxes into Knuckles’ store. The prosecutor also introduced into evidence, over petitioners’ objections, portions of each petitioner’s confession which implicated the other in a manner now conceded to be contrary to Bruton v. United States, 391 U. S. 123 (1968). Those considerable parts of each petitioner’s confession which did not implicate the other were admitted without objection. The jury returned verdicts of guilty on all counts.

On appeal, the Court of Appeals for the Sixth Circuit recognized that a Bruton error had occurred, but went on to conclude that the independent proof of petitioners’ guilt was “so overwhelming that the error was harmless,” citing Harrington v. California, 395 U. S. 250 (1969). The Court of Appeals also held that the stolen merchandise seized pursuant to the defective warrant was properly admitted against petitioners, stating:

“This ruling [of the District Court] was correct because appellants claimed no possessory or proprietary rights in the goods or in Knuckles’ store, and it is clear that they cannot assert the Fourth Amendment right of another.” 452 F. 2d 868, 870 (1971).

(1)

Petitioners contend that they have “automatic” standing to challenge the search and seizure at Knuckles’ store. They rely on the decision of this Court in Jones v. United States, 362 U. S. 257 (1960), establishing a rule of “automatic” standing to contest an allegedly illegal search where the same possession needed to establish standing is “an essential element of the offense . . . charged.” Simmons v. United States, 390 U. S. 377, 390 (1968). That case involved (a) a seizure of contraband narcotics, (b) a defendant who was present at the seizure, and (c) an offense in which the defendant’s possession of the seized narcotics at the time of the contested search and seizure was a critical part of the Government’s case. Jones, supra, at 263. Mr. Justice Frankfurter, writing for the Court in Jones, emphasized the “dilemma” inherent in a defendant’s need to allege “possession” to contest a seizure, when such admission of possession could later be used against him. Id., at 262-264. Mr. Justice Frankfurter quoted the words of Judge Learned Hand:

“Men may wince at admitting that they were the owners, or in possession, of contraband property; may wish at once to secure the remedies of a possessor, and avoid the perils of the part; but equivocation will not serve. If they come as victims, they must take on that role, with enough detail to cast them without question. The petitioners at bar shrank from that predicament; but they were obliged to choose one horn of the dilemma.” Connolly v. Medalie, 58 F. 2d 629, 630 (CA2 1932).

The self-incrimination dilemma, so central to the Jones decision, can no longer occur under the prevailing interpretation of the Constitution. Subsequent to Jones, in Simmons v. United States, supra, we held that a prosecutor may not use against a defendant at trial any testimony given by that defendant at a pretrial hearing to establish standing to move to suppress evidence. 390 U. S., at 389-394. For example, under the Simmons doctrine the defendant is permitted to establish the requisite standing by claiming “possession” of incriminating evidence. If he is granted standing on the basis of such evidence, he may then nonetheless press for its exclusion; but, whether he succeeds or fails to suppress the evidence, his testimony on that score is not directly admissible against him in the trial. Thus, petitioners in this case could have asserted, at the pretrial suppression hearing, a possessory interest in the goods at Knuckles’ store without any danger of incriminating themselves. They did not do so.

But it is not necessary for us now to determine whether our decision in Simmons, supra, makes Jones’ “automatic” standing unnecessary. We reserve that question for a case where possession at the time of the contested search and seizure is “an essential element of the offense . . . charged.” Simmons, 390 U. S., at 390. Here, unlike Jones, the Government’s case against petitioners does not depend on petitioners’ possession of the seized evidence at the time of the contested search and seizure. The stolen goods seized had been transported and “sold” by petitioners to Knuckles approximately two months before the challenged search. The conspiracy and transportation alleged by the indictment were carefully limited to the period before the day of the search.

In deciding this case, therefore, it is sufficient to hold that there is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of the contested search and seizure; (b) alleged no proprietary or possessory interest in the premises; and (c) were not charged with an offense that includes, as an essential element of the offense charged, possession of the seized evidence at the time of the contested search and seizure. The vice of allowing the Government to allege possession as part of the crime charged, and yet deny that there was possession sufficient for standing purposes, is not present. The Government cannot be accused of taking “advantage of contradictory positions.” Jones v. United States, supra, at 263. See United States v. Allsenberrie, 424 F. 2d 1209, 1212-1214 (CA7 1970); United States v. Cowan, 396 F. 2d 83, 86 (CA2 1968); Niro v. United States, 388 F. 2d 535, 537 (CA1 1968); United States v. Bozza, 365 F. 2d 206, 223 (CA2 1966). But cf. United States v. Price, 447 F. 2d 23, 29 (CA2), cert, denied, 404 U. S. 912 (1971).

Again, we do not decide that this vice of prosecutorial self-contradiction warrants the continued survival of Jones’ “automatic” standing now that our decision in Simmons has removed the danger of coerced self-incrimination. We simply see no reason to afford such “automatic” standing where, as here, there was no risk to a defendant of either self-incrimination or prosecutorial self-contradiction. Petitioners were afforded a full hearing on standing and failed to allege any legitimate interest of any kind in the premises searched or the merchandise seized. Nor, incidentally, does the record reveal any such interest. As the Court of Appeals correctly concluded, petitioners had no standing to contest the defective warrant used to search Knuckles’ store; they could not then and cannot now rely on the Fourth Amendment rights of another. “Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted. Simmons v. United States, 390 U. S. 377 (1968); Jones v. United States, 362 U. S. 257 (1960).” Alderman v. United States, 394 U. S. 165, 174 (1969). See Wong Sun v. United States, 371 U. S. 471, 492 (1963).

(2)

The Solicitor General concedes that, under Bruton, supra, statements made by petitioners were improperly admitted into evidence. Neither petitioner testified at the trial. The prosecution tendered police testimony as to statements made by Smith implicating Brown in the crimes charged, even though these statements were made out of Brown’s presence. This testimony was admitted into evidence. Similar statements, made by Brown relating to Smith, were also admitted. Petitioners’ counsel made timely objections.

Upon an independent examination of the record, we agree with the Court of Appeals that the Bruton errors were harmless. The testimony erroneously admitted was merely cumulative of other overwhelming and largely uncontroverted evidence properly before the jury. In this case, as in Harrington v. California, 395 U. S. 250 (1969), the independent evidence “is so overwhelming that unless we say that no violation of Bruton can constitute harmless error, we must leave this . . . conviction undisturbed,” id., at 254. We reject the notion that a Bruton error can never be harmless. “[A] defendant is entitled to a fair trial but not a perfect one,” for there are no perfect trials. Bruton v. United States, 391 U. S., at 135, quoting Lutwak v. United States, 344 U. S. 604, 619 (1953). See Schneble v. Florida, 405 U. S. 427, 432 (1972); Chapman v. California, 386 U. S. 18, 23-24 (1967).

Affirmed.

       Knuckles was joined in the conspiracy count and was also charged with having received stolen merchandise, contrary to 18 U. S. C. §2315.

       Presence of the defendant at the search and seizure was held, in Jones, to be a sufficient source of standing in itself. Jones v. United States, 362 U. S. 257, 267 (1960). Here, of course, petitioners were not present at the contested search and seizure, but were in police custody in a different State. See Wong Sun v. United States, 371 U. S. 471, 492 n. 18 (1963).

       “Petitioner’s conviction flows from Ms possession of the narcotics at the time of the search.” Jones, supra, at 263 (emphasis added).

       Petitioners now contend that they had a partnership “property interest” in or “constructive possession” of the stolen goods found at Knuckles’ store, as a conspiracy is a “partnership in crime.” Even if the petitioners had not already “sold” the merchandise to Knuckles, their “property interest” in the merchandise was totally illegitimate. The “constructive possession” argument is equally ingenious, but equally unavailing. Even on the doubtful assumption that the alleged conspiracy between petitioners and Knuckles could support a “constructive possession” of the merchandise at Knuckles’ store, the conspiracy was alleged to have continued only “to and including the 28th day of August, 1970.” The seizure was made on August 29, 1970. Finally, these contentions were not made in the courts below or in the petition for certiorari. They are, therefore, not properly before this Court. Lawn v. United States, 355 U. S. 339, 362-363, n. 16 (1958).

       An FBI agent, Whitley, testified as follows:
      “[Smith stated that] during June 1970, another individual who was also employed at Central Jobbing Company, one Joe Brown, had approaehed him and asked him to help steal merchandise from Central Jobbing Company and help him transport this merchandise to Manchester, Kentucky. He advised me that during June of 1970, he and Joe Brown made two trips to Manchester, Kentucky, with merchandise consisting of household goods and clothing which they had stolen from Central Jobbing Company. He recalled that to the best of his knowledge . . . these dates were June 5th and 29th, 1970. He said that he and Mr. Brown had received approximately one-half the value of the stolen merchandise from the owners of the Knuckles Discount Store in Manchester, Kentucky, and that the owners of the Discount Store knew that the merchandise was stolen. Mr. Smith stated further that he had received approximately $2,500.00 as his share of the money which they had received from the stolen merchandise.”
      Another witness, a Detective Hulgin from the County Sheriff’s Patrol, had also testified to similar statements by Smith, adding that Smith had stated that the fist, which was found by West at the warehouse, had been prepared and shown to him by Brown, and that the total price of $2,200 shown on the list was the amount of money that petitioners were to receive for that particular shipment to Knuckles. Hulgin also testified that he was told by Brown that Smith had accompanied Brown on two previous occasions when Brown delivered stolen goods to Knuckles.