author: Mr. Justice Harlan Mr. Chief Justice Warren,

text:
    HAYNES v. UNITED STATES.
    No. 236.
    Argued October 11, 1967.
    Decided January 29, 1968.

      Charles Alan Wright argued the cause for petitioner. With him on the brief was Ernest E. Figari, Jr.

      Harris Weinstein argued the cause for the United States. With him on the brief were Acting Solicitor General Spritzer, Assistant Attorney General Vinson, Beatrice Rosenberg and Kirby W. Patterson.

   Mr. Justice Harlan

delivered the opinion of the Court.

Petitioner was charged by a three-count information filed in the United States District Court for the Northern District of Texas with violations of the National Firearms Act. 48 Stat. 1236. Two of the counts were •subsequently dismissed upon motion of the United States Attorney. The remaining count averred that petitioner, in violation of 26 U. S. C. § 5851, knowingly possessed a firearm, as defined by 26 U. S. C. § 5848 (1), which had not been registered with the Secretary of the Treasury or his delegate, as required by 26 U. S. C. § 5841. Petitioner moved before trial to dismiss this count, evidently asserting that § 5851 violated his privilege against self-incrimination, as guaranteed by the Fifth Amendment. The motion was denied, and petitioner thereupon entered a plea of guilty. The judgment of conviction was affirmed by the Court of Appeals for the Fifth Circuit. 372 F. 2d 651. We granted certiorari to examine the constitutionality under the Fifth Amendment of petitioner’s conviction. 388 U. S. 908. For reasons which follow, we reverse.

I.

Section 5851 forms part of the National Firearms Act, an interrelated statutory system for the taxation of certain classes of firearms. The Act’s requirements are applicable only to shotguns with barrels less than 18 inches long; rifles with barrels less than 16 inches long; other weapons, made from a rifle or shotgun, with an overall length of less than 26 inches; machine guns and other automatic firearms; mufflers and silencers; and other firearms, except pistols and revolvers, “if such weapon is capable of being concealed on the person ....” 26 U. S. C. §5848 (1); Treas. Reg. § 179.20, 26 CFR § 179.20. These limitations were apparently intended to guarantee that only weapons used principally by persons engaged in unlawful activities would be subjected to taxation.

Importers, manufacturers, and dealers in such firearms are obliged each year to pay special occupational taxes, and to register with the Secretary of the Treasury or his delegate. 26 U. S. C. §§ 6801, 5802. Separate taxes are imposed on the making and transfer of such firearms by persons other than those obliged to pay the occupational taxes. 26 U. S. C. §§ 5811, 5821. For purposes of these additional taxes, the acts of making and transferring firearms are broadly defined. Section 5821 thus imposes a tax on the making of a firearm “whether by manufacture, putting together, alteration, any combination thereof, or otherwise.” Similarly, to transfer encompasses “to sell, assign, pledge, lease, loan, give away, or otherwise dispose of” a firearm. 26 U. S. C. § 5848 (10).

All these taxes are supplemented by comprehensive requirements calculated to assure their collection. Any individual who wishes to make a weapon, within the meaning of § 5821 (a), is obliged, “prior to such making,” to declare his intention to the Secretary, and to provide to the Treasury his fingerprints and photograph. 26 U. S. C. § 5821 (e); Treas. Reg. § 179.78. The declaration must be “supported by a certificate of the local chief of police ... or such other person whose certificate may . .. be acceptable_” Treas. Reg. § 179.78. The certificate must indicate satisfaction that the fingerprints and photograph are those of the declarant, and that the firearm is intended “for lawful purposes.” Ibid. Any person who wishes to transfer such a weapon may lawfully do so only if he first obtains a written order from the prospective transferee on an “application form issued ... for that purpose by the Secretary.” 26 U. S. C. § 5814 (a). The application, supported by a certificate of the local chief of police, and accompanied by the transferee’s fingerprints and photograph, must be approved by the Secretary prior to the transfer. Treas. Reg. §§ 179.98, 179.99. Finally, every person possessing such a firearm is obliged to register his possession with the Secretary, unless he made the weapon, or acquired it by transfer or importation, and the Act’s requirements as to transfers, makings, and importations “were complied with.” 26 U. S. C. § 5841.

Failure to comply with any of the Act’s requirements is made punishable by fines and imprisonment. 26 U. S. C. § 5861. In addition, § 5851 creates a series of supplementary offenses; it declares unlawful the possession of any firearm which has “at any time” been transferred or made in violation of the Act’s provisions, or which “has not been registered as required by section 5841.” Finally, § 5851 provides that in prosecutions conducted under that section “possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.”

II.

At the outset, it must be emphasized that the issue in this case is not whether Congress has authority under the Constitution to regulate the manufacture, transfer, or possession of firearms; nor is it whether Congress may tax activities which are, wholly or in part, unlawful. Rather, we are required to resolve only the narrow issue of whether enforcement of § 5851 against petitioner, despite his assertion of the privilege against self-incrimination, is constitutionally permissible. • The questions necessary for decision are two: first, whether petitioner’s conviction under § 5851 is meaningfully distinguishable from a conviction under § 5841 for failure to register possession of a firearm; and second, if it is not, whether satisfaction of petitioner’s obligation to register under § 5841 would have compelled him to provide information incriminating to himself. If, as petitioner urges, his conviction under § 5851 is essentially indistinguishable from a conviction premised directly upon a failure to register under § 5841, and if a prosecution under § 5841 would have punished petitioner for his failure to incriminate himself, it would follow that a proper claim of privilege should have provided a full defense to this prosecution. To these questions we turn.

III.

The first issue is whether the elements of the offense under § 5851 of possession of a firearm “which has not been registered as required by section 5841” differ in any significant respect from those of the offense under § 5841 of failure to register possession of a firearm. The United States contends that the two offenses, despite the similarity of their statutory descriptions, serve entirely different purposes, in that the registration clause of § 5851 is intended to punish acceptance of the possession of a firearm which, despite the requirements of § 5841, was never registered by any prior possessor, while § 5841 punishes only a present possessor who has failed to register the fact of his own possession. If this construction is correct, nothing in a prosecution under § 5851 would turn on whether the present possessor had elected to register; his offense would have been complete when he accepted possession of a firearm which no previous possessor had registered. We need not determine whether this construction would be free from constitutional difficulty under the Fifth Amendment, for we have concluded that § 5851 cannot properly be construed as the United States has urged.

The United States finds support for its construction of § 5851 chiefly in the section’s use of the past tense: the act stated to be unlawful is “to possess any firearm which has not been registered as required by section 5841.” (Emphasis added.) It is contended that we may infer from this choice of tense that the failure to register must necessarily precede the accused’s acquisition of possession. We cannot derive so much from so little. We perceive no more in the draftsman’s choice of tense than the obvious fact that the failure to register must precede the moment at which the accused is charged; we find nothing which confines the clause’s application to failures to register which have occurred before a present possessor received the firearm. It follows that the phrase fastened upon by the United States is, at the least, equally consistent with the construction advanced by petitioner.

If, however, nothing further were available, it might be incumbent upon us to accept the Government’s construction in order to avoid the adjudication of a serious constitutional issue. See, e. g., Ashwander v. Valley Authority, 297 U. S. 288, 348 (concurring opinion); Crowell v. Benson, 285 U. S. 22, 62. But there are persuasive indications at hand which, in our view, preclude adoption of the position urged by the United States. Initially, we must note that each of the other two offenses defined by § 5851 indicates very specifically that the violations of the making or transfer provisions, on which the § 5851 offenses are ultimately premised, can have occurred “at any time.” An analogous phrase in the registration clause would have made plain beyond all question that the construction now urged by the United States should be accepted; if this was indeed Congress’ purpose, it is difficult to see why it did not, as it did in the other clauses, insert the few additional words necessary to make clear its wishes. The position suggested by the United States would thus oblige us, at the outset, to assume that Congress has, in this one clause, chosen a remarkably oblique and unrevealing phrasing.

Similarly, it is pertinent to note that the transfer and making clauses of § 5851 punish the receipt, as well as the possession, of firearms; the registration clause, in contrast, punishes only possession. Under the construction given § 5851 by the United States, Congress might have been expected to declare unlawful, in addition, the receipt of firearms never previously registered; indeed, the receipt of the firearm is, under that construction, the central element of the offense. Congress’ preference in the registration clause for “possession,” rather than “receipt,” is satisfactorily explicable only if petitioner’s construction of § 5851 is adopted.

Third, and more important, we find it significant that the offense defined by § 5851 is the possession of a firearm which has not been registered “as required by section 5841.” In the absence of persuasive evidence to the contrary, the clause’s final words suggest strongly that the perimeter of the offense which it creates is to be marked by the terms of the registration requirement imposed by § 5841. In turn, § 5841 indicates quite precisely that “[e]very person possessing a firearm” must, unless excused by the section’s exception, register his possession with the Secretary or his delegate. Moreover, the Treasury regulations are entirely unequivocal; they specifically provide that “[e]very person in the United States possessing a firearm (a) not registered to him,.. . must execute an application for the registration of such firearm . ...” Treas. Reg. § 179.120. (Emphasis added.)

The pertinent legislative history offers additional assistance, and points against the Government’s construction. The registration clause was inserted into § 5851 by the Excise Tax Technical Changes Act of 1958. 72 Stat. 1428. The two committee reports indicate, in identical terms, that the existing section was thought inadequate because, although it defined as an unlawful act the possession of any firearm which had been made or transferred in violation of the Firearms Act, it failed “to so define the possession of an unregistered firearm.” H. R. Rep. No. 481, 85th Cong., 1st Sess., 195; S. Rep. No. 2090, 85th Cong., 2d Sess., 212. The section as amended “specifically defines such possession of an unregistered firearm as an unlawful act.” Ibid. It is useful to note that the committees did not suggest that the failure to register must have preceded the acquisition of possession. Further, the reports indicate that the proposed amendment was intended to make available in prosecutions for possession of an unregistered firearm the presumption already contained in §5851; they conclude that the “primary purpose of this change is to simplify and clarify the law and to aid in prosecution.” H. R. Rep. No. 481, supra, at 196; S. Rep. No. 2090, supra, at 212.

We infer that the amendment was thought to have two purposes. First, it would complete the series of supplementary offenses created by § 5851, by adding to those premised on a making or transfer one bottomed on a failure to register. Second, it would facilitate the prosecution of failures to register by permitting the use of the presumption included in § 5851. It would thus “aid in prosecution” of conduct also made unlawful by § 5841. Both these purposes are fully consistent with the construction of § 5851 urged by petitioner; but only the first offers any support to the position suggested by the United States.

We are unable to escape the conclusion that Congress intended the registration clause of § 5851 to incorporate the requirements of § 5841, by declaring unlawful the possession of any firearm which has not been registered by its possessor, in circumstances in which § 5841 imposes an obligation to register. The elements of the offenses created by the two sections are therefore identical. This does not, however, fully resolve the question of whether any hazards of incrimination which stem from the registration requirement imposed by § 5841 must be understood also to inhere in prosecutions under § 5851. Two additional distinctions between the offenses have been suggested, and we must examine them.

First, it has been said that the offenses differ in emphasis, in that § 5851 chiefly punishes possession, while § 5841 punishes a failure to register. Cf. Frye v. United States, 315 F. 2d 491, 494; Castellano v. United States, 350 F. 2d 852, 854. We find this supposed distinction entirely unpersuasive, for, as we have found, the possession of a firearm and a failure to register are equally fundamental ingredients of both offenses. Second, it has been suggested that § 5841 creates a “status of unlawful possession” which, if assumed by an individual, denies to him the protection of the constitutional privilege. Castellano v. United States, supra, at 854. It has evidently been thought to follow that the privilege may be claimed in prosecutions under § 5841, but not in those under § 5851. This is no less unpersuasive; for reasons discussed in Marchetti v. United States, decided today, ante, at 51-52, we decline to hold that the performance of an unlawful act, even if there exists a statutory condition that its commission constitutes a waiver of the constitutional privilege, suffices to deprive an accused of the privilege’s protection. We hold that petitioner’s conviction under the registration clause of § 5851 is not properly distinguishable from a conviction under § 5841 for failure to register, and that both offenses must be deemed subject to any constitutional deficiencies arising under the Fifth Amendment from the obligation to register.

IY.

We must now consider whether, as petitioner contends, satisfaction of his obligation to register would have compelled him to provide information incriminating to himself. We must first mark the terms of the registration requirement. The obligation to register is conditioned simply upon possession of a firearm, within the meaning of § 6848 (1). Not every possessor of a firearm must, however, register; one who made the firearm, or acquired it by transfer or importation, need not register if the Act’s provisions as to transfers, makings, and importations “were complied with.” If those requirements were not met, or if the possessor did not make the firearm, and did not acquire it by transfer or importation, he must furnish the Secretary of the Treasury with his name, address, the place where the firearm is usually kept, and the place of his business or employment. Further, he must indicate his date of birth, social security number, and whether he has ever been convicted of a felony. Finally, he must provide a full description of the firearm. See 26 U. S. C. §5841; Treas. Reg. § 179.120; Internal Revenue Service Form 1 (Firearms).

The registration requirement is thus directed principally at those persons who have obtained possession of a firearm without complying with the Act’s other requirements, and who therefore are immediately threatened by criminal prosecutions under §§ 5861 and 5861. They are unmistakably persons “inherently suspect of criminal activities.” Albertson v. SACB, 382 U. S. 70, 79. It is true, as the United States emphasizes, that registration is not invariably indicative of a violation of the Act’s requirements; there are situations, which the United States itself styles “uncommon,” in which a possessor who has not violated the Act’s other provisions is obliged to register. Nonetheless, the correlation between obligations to register and violations can only be regarded as exceedingly high, and a prospective registrant realistically can expect that registration will substantially increase the likelihood of his prosecution. Moreover, he can reasonably fear that the possession established by his registration will facilitate his prosecution under the making and transfer clauses of § 5851. In these circumstances, it can scarcely be said that the risks of criminal prosecution confronted by prospective registrants are “remote possibilities out of the ordinary course of law,” Heike v. United States, 227 U. S. 131, 144; yet they are compelled, on pain of criminal prosecution, to provide to the Secretary both a' formal acknowledgment of their possession of firearms, and supplementary information likely to facilitate their arrest and eventual conviction. The hazards of incrimination created by the registration requirement can thus only be termed “real and appreciable.” Reg. v. Boyes, 1 B. & S. 311, 330; Brown v. Walker, 161 U. S. 591, 599-600.

We are, however, urged by the United States, for various disparate reasons, to affirm petitioner’s conviction. It is first suggested that the registration requirement is a valid exercise of the taxing powers, in that it is calculated merely to assure notice to the Treasury of all taxable firearms. We do not doubt, as we have repeatedly indicated, that this Court must give deference to Congress’ taxing powers, and to measures reasonably incidental to their exercise; but we are no less obliged to heed the limitations placed upon those powers by the Constitution’s other commands. We are fully cognizant of the Treasury’s need for accurate and timely information, but other methods, entirely consistent with constitutional limitations, exist by which such information may be obtained. See generally Counselman v. Hitchcock, 142 U. S. 547, 585. See also Adams v. Maryland, 347 U. S. 179; Murphy v. Waterfront Commission, 378 U. S. 52. Accordingly, nothing we do today will prevent the effective regulation or taxation by Congress of firearms.

Nonetheless, these statutory provisions, as now written, cannot be brought within any of the situations in which the Court has held that the constitutional privilege does not prevent the use by the United States of information obtained in connection with regulatory programs of general application. See United States v. Sullivan, 274 U. S. 259; Shapiro v. United States, 335 U. S. 1. For reasons given in Marchetti v. United States, supra, and Grosso v. United States, ante, p. 62, we have concluded that the points of significant dissimilarity between these circumstances and those in Shapiro and Sullivan preclude any proper application of those cases here. The questions propounded by § 5841, like those at issue in Albert-son, supra, are “directed at a highly selective group inherently suspect of criminal activities”; they concern, not “an essentially non-criminal and regulatory area of inquiry,” but “an area permeated with criminal statutes.” 382 U. S., at 79. There are, moreover, no records or other documents here to which any “public aspects” might reasonably be said to have attached. Compare Shapiro v. United States, supra, at 34; and Marchetti v. United States, supra.

The United States next emphasizes that petitioner has consistently contended that §§ 5841 and 5851 are unconstitutional on their face; it urges that this contention is foreclosed by the inclusion in the registration requirement of situations in which the obligation to register cannot produce incriminating disclosures. We recognize that there are a number of apparently uncommon circumstances in which registration is required of one who has not violated the Firearms Act; the United States points chiefly to the situation of a finder of a lost or abandoned firearm. Compare United States v. Forgett, 349 F. 2d 601. We agree that the existence of such situations makes it inappropriate, in the absence of evidence that the exercise of protected rights would otherwise be hampered, to declare these sections impermissible on their face. Instead, it appears, from the evidence now before us, that the rights of those subject to the Act will be fully protected if a proper claim of privilege is understood to provide a full defense to any prosecution either for failure to register under § 5841 or, under § 5851, for possession of a firearm which has not been registered.

Finally, we are asked to avoid the constitutional difficulties which we have found in §§ 5841 and 5851 by imposing restrictions upon the use by state and federal authorities of information obtained as a consequence of the registration requirement. We note that the provisions of 26 U. S. C. § 6107 are applicable to the special occupational taxes imposed by § 5801, although not, apparently, to the making and transfer taxes imposed by §§ 5811 and 5821. In these circumstances, we decline, for reasons indicated in Marchetti, supra, and Grosso, supra, to impose the restrictions urged by the United States.

We hold that a proper claim of the constitutional privilege against self-incrimination provides a full defense to prosecutions either for failure to register a firearm under § 5841 or for possession of an unregistered firearm under § 5851.

V.

It remains only to determine the appropriate disposition of this case. Petitioner has seasonably and consistently asserted a claim of privilege, but the courts below, believing the privilege inapplicable to prosecutions under § 5851, evidently did not assess the claim’s merits. It would therefore ordinarily be necessary to remand the cause to the District Court, with instructions to examine the merits of the claim. We note, however, that there can be no suggestion here that petitioner has waived his privilege, and that, moreover, the United States has conceded that petitioner’s privilege against self-incrimination must be found to have been imper-missibly infringed if his contentions as to the proper construction of §§ 5851 and 5841 are accepted. Brief for the United States 8. Accordingly, the District Court would be obliged in any additional proceeding to conclude that “there is reasonable ground to apprehend danger to the witness from his being compelled to answer.” Reg. v. Boyes, supra, at 330. It follows that any proceeding in the District Court must inevitably result in the reversal of petitioner’s conviction. We have plenary authority under 28 U. S. C. § 2106 to make such disposition of the case “as may be just under the circumstances.” See Yates v. United States, 354 U. S. 298, 327-331; Grosso v. United States, supra. It would be neither just nor appropriate to require the parties and the District Court to commence an entirely needless additional proceeding. Accordingly, the judgment of the Court of Appeals is

Reversed.

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

Mr. Chief Justice Warren,

dissenting.

For reasons stated in my dissent in Marchetti v. United States and Grosso v. United States, ante, p. 77, I cannot agree with the result reached by the Court in this case.

       Petitioner’s motion asserted merely that § 5851 was “unconstitutional,” and the order denying the motion, does not indicate more precisely the substance of petitioner’s contentions. His subsequent arguments, both in the courts below and here, have, however, consistently asserted a claim of the constitutional privilege. No suggestion is made by the Government that the claim of privilege was not sufficiently made.

       Petitioner’s plea of guilty did not, of course, waive his previous claim of the constitutional privilege. See, e. g., United States v. Ury, 106 F. 2d 28.

       The section provides that “It shall be unlawful for any person to receive or possess any firearm which has at any time been transferred in violation of sections 5811, 5812 (b), 5813, 5814, 5844, or 5846, or which has at any time been made in violation of section 5821, or to possess any firearm which has not been registered as required by section 5841. Whenever on trial for a violation of this section the defendant is shown to have or to have had possession of such firearm, such possession shall be deemed sufficient evidence to authorize conviction, unless the defendant explains such possession to the satisfaction of the jury.”

       The views of a subsequent Congress of course provide no controlling basis from which to infer the purposes of an earlier Congress. See Rainwater v. United States, 356 U. S. 590, 593; United States v. Price, 361 U. S. 304, 313. Nonetheless, it is pertinent to note that the Committee on Ways and Means of the House of Representatives, while reporting in 1959 on certain proposed amendments to the Act, stated that the “primary purpose of [the Firearms Act] was to make it more difficult for the gangster element to obtain certain types of weapons. The type of weapon with which these provisions are concerned are the types it was thought would be used primarily by the gangster-type element.” H. R. Rep. No. 914, 86th Cong., 1st Sess., 2.

       The section provides that “Every person possessing a firearm shall register, with the Secretary or his delegate, the number or other mark identifying such firearm, together with his name, address, place where such firearm is usually kept, and place of business or employment, and, if such person is other than a natural person, the name and home address of an executive officer thereof. No person shall be required to register under this section with respect to a firearm which such person acquired by transfer or importation or which such person made, if provisions of this chapter applied to such transfer, importation, or making, as the case may be, and if .the provisions which applied thereto were complied with.”

       Indeed, so much is recognized by the Government; it has stated that “[w]e concede that if petitioner’s reading of the two provisions were right . . . petitioner’s conviction under Section 5851 would not be valid.” Brief for the United States 8.

       The Government’s position is generally supported by several cases in the courts of appeals. See, in addition to the opinion below, Frye v. United States, 315 F. 2d 491; Starks v. United States, 316 F. 2d 45; Mares v. United States, 319 F. 2d 71; Sipes v. United States, 321 F. 2d 174; Taylor v. United States, 333 F. 2d 721; Castellano v. United States, 350 F. 2d 852; Pruitt v. United States, 364 F. 2d 826; Decker v. United States, 378 F. 2d 245. None of these cases, however, undertook an extended examination of the relationship between §§ 5851 and 5841. Compare Lovelace v. United States, 357 F. 2d 306, 309; and Mansfield, The Albertson Case: Conflict Between the Privilege Against Self-Incrimination and the Government’s Need for Information, 1966 Sup. Ct. Rev. 103, 158-159, n. 95.

       The language in the reports was evidently taken without change or elaboration from the recommendations submitted to the House Committee on Ways and Means by the Treasury. See Hearings before House Committee on Ways and Means on Excise Tax Technical and Administrative Problems, 84th Cong., 1st Sess., 185, 211.

       We note that § 5841 has several times been held to require incriminating disclosures, in violation of the Fifth Amendment privilege against self-incrimination. See Russell v. United States, 306 F. 2d 402; Dugan v. United States, 341 F. 2d 85; McCann v. United States, 217 F. Supp. 751; United States v. Fleish, 227 F. Supp. 967. See also Lovelace v. United States, supra, at 309.

       In particular, the United States emphasizes the position of a finder of a lost or abandoned firearm. Brief for the United States 20.

       We must note, however, that certain of these prospective registrants might be threatened by prosecution under state law for possession of firearms, or similar offenses. It is possible that such persons would be obliged, if they registered in compliance with § 5841, to provide information incriminating to themselves. Such hazards would, of course, support a proper claim of privilege. See Malloy v. Hogan, 378 U. S. 1. For illustrations of state statutes under which such prosecutions might occur, see Conn. Gen. Stat. Rev. § 53-202 (1958); Del. Code Ann., Tit. 11, § 465 (1953); Hawaii Rev. Laws § 157-8 (1955); l'owa Code §696.1 (1966); Kan. Stat. Ann. §21-2601 (1964); La. Rev. Stat. §40:1752 (1950); Minn. Stat. § 609.67 (1965); N. J. Rev. Stat., Tit. 2A, §151-50 (1953). We have discovered no state statute under which the present petitioner might have been subject to prosecution for acts registrable under § 5841, and he has not contended that registration would have incriminated him under state law.

       See, for example, Sonzinsky v. United States, 300 U. S. 506; Marchetti v. United States, supra.

       Again, we note that these registrants might be confronted by hazards of prosecution under state law, and that those hazards might support a proper claim of privilege. See supra, n. 11.

       Section 6107 provides that “In the principal internal revenue office in each internal revenue district there shall be kept, for public inspection, an alphabetical list of the names of all persons who have paid special taxes under subtitle D or E within such district. Such list shall be prepared and kept pursuant to regulations prescribed by the Secretary or his delegate, and shall contain the time, place, and business for which such special taxes have been paid, and upon application of any prosecuting officer of any State, county, or municipality there shall be furnished to him a certified copy thereof, as of a public record, for which a fee of $1 for each 100 words or fraction thereof in the copy or copies so requested may be charged.” The special taxes to which the section refers include those imposed by 26 U. S. C. § 5801.


source: Caselaw Access Project

author: Mr. Justice Harlan

license: Public Domain

text:
    PROVIDENT TRADESMENS BANK & TRUST CO., ADMINISTRATOR v. PATTERSON, ADMINISTRATOR, et al.
    No. 28.
    Argued November 6-7, 1967.
    Decided January 29, 1968.

      Avram O. Adler argued the cause for petitioner. With him on the brief were Abraham E. Freedman, J. Willi-son Smith and Bayard M. Graf.

      Norman Paul Harvey argued the cause and filed a brief for respondents.
   Mr. Justice Harlan

delivered the opinion of the Court.

This controversy, involving in its present posture the dismissal of a declaratory judgment action for nonjoinder of an “indispensable” party, began nearly 10 years ago with a traffic accident. An automobile owned by Edward Dutcher, who was not present when the accident occurred, was being driven by Donald Cionci, to whom Dutcher had given the keys. John Lynch and John Harris were passengers. The automobile crossed the median strip of the highway and collided with a truck being driven by Thomas Smith. Cionci, Lynch, and Smith were killed and Harris was severely injured.

Three tort actions were brought. Provident Trades-mens Bank, the administrator of the estate of passenger Lynch and petitioner here, sued the estate of the driver, Cionci, in a diversity action. Smith’s administratrix, and Harris in person, each brought a state-court action against the estate of Cionci, Dutcher the owner, and the estate of Lynch. These Smith and Harris actions, for unknown reasons, have never gone to trial and are still pending. The Lynch action against Cionci’s estate was settled for $50,000, which the estate of Cionci, being penniless, has never paid.

Dutcher, the owner of the automobile and a defendant in the as yet untried tort actions, had an automobile liability insurance policy with Lumbermens Mutual Casualty Company, a respondent here. That policy had an upper limit of $100,000 for all claims arising out of a single accident. This fund was potentially subject to two different sorts of claims by the tort plaintiffs. First, Dutcher himself might be held vicariously liable as Cionci’s “principal”; the likelihood of such a judgment against Dutcher is a matter of considerable doubt and dispute. Second, the policy by its terms covered the direct liability of any person driving Dutcher’s car with Dutcher’s “permission.”

The insurance company had declined, after notice, to defend in the tort action brought by Lynch’s estate against the estate of Cionci, believing that Cionci had not had permission and hence was not covered by the policy. The facts allegedly were that Dutcher had entrusted his car to Cionci, but that Cionci had made a detour from the errand for which Dutcher allowed his car to be taken. The estate of Lynch, armed with its $50,000 liquidated claim against the estate of Cionci, brought the present diversity action for a declaration that Cionci’s use of the car had been “with permission” of Dutcher. The only named defendants were the company and the estate of Cionci. The other two tort plaintiffs were joined as plaintiffs. Dutcher, a resident of the State of Pennsylvania as were all the plaintiffs, was not joined either as plaintiff or defendant. The failure to join him was not adverted to at the trial level.

The major question of law contested at trial was a state-law question. The District Court had ruled that, as a matter of the applicable (Pennsylvania) law, the driver of an automobile is presumed to have the permission of the owner. Hence, unless contrary evidence could be .introduced, the tort plaintiffs, now declaratory judgment plaintiffs, would be entitled to a directed verdict against the insurance company. The only possible contrary evidence was testimony by Dutcher as to restrictions he had imposed on Cionci’s use of the automobile. The two estate plaintiffs claimed, however, that under the Pennsylvania “Dead Man Rule” Dutcher was incompetent to testify on this matter as against them. The District Court upheld this claim. It ruled that under Pennsylvania law Dutcher was incompetent to testify against an estate if he had an “adverse” interest to that of the estate. It found such adversity in Dutcher’s potential need to call upon the insurance fund to pay judgments against himself, and his consequent interest in not having part or all of the fund used to pay judgments against Cionci. The District Court, therefore, directed verdicts in favor of the two estates. Dutcher was, however, allowed to testify as against the live plaintiff, Harris. The jury, nonetheless, found that Cionci had had permission, and hence awarded a verdict to Harris also.

Lumbermens appealed the judgment to the Court of Appeals for the Third Circuit, raising various state-law questions. The Court of Appeals did not reach any of these issues. Instead, after reargument en banc, it decided, 5-2, to reverse on two alternative grounds neither of which had been raised in the District Court or by the appellant.

The first of these grounds was that Dutcher was an indispensable party. The court held that the “adverse interests” that had rendered Dutcher incompetent to testify under the Pennsylvania Dead Man Rule also required him to be made a party. The court did not consider whether the fact that a verdict had already been rendered, without objection to the nonjoinder of Dutcher, affected the matter. Nor did it follow the provision of Rule 19 of the Federal Rules of Civil Procedure that findings of “indispensability” must be based on" stated pragmatic considerations. It held, to the contrary, that the right of a person who “may be affected” by the judgment to be joined is a “substantive” right, unaffected by the federal rules; that a trial court “may not proceed” in the absence of such a person; and that since Dutcher could not be joined as a defendant without destroying diversity jurisdiction the action had to be dismissed.

Since this ruling presented a serious challenge to the scope of the newly amended Rule 19, we granted cer-tiorari. 386 U. S. 940. Concluding that the inflexible approach adopted by the Court of Appeals in this case exemplifies the kind of reasoning that the Rule was designed to avoid, we reverse.

I.

The applicable parts of Rule 19 read as follows:

“Rule 19. Joinder of Persons Needed for Just Adjudication
“(a) Persons to be Joined if Feasible. A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant, or, in a proper case, an involuntary plaintiff. If. the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.
“(b) Determination by Court Whenever Joinder not Feasible. If a person as described in subdivision (a) (l)-(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include: first, to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.”

We may assume, at the outset, that Dutcher falls within the category of persons who, under § (a), should be “joined if feasible.” The action was for an adjudication of the validity of certain claims against a fund. Dutcher, faced with the possibility of judgments against him, had an interest in having the fund preserved to cover that potential liability. Hence there existed, when this case went to trial, at least the possibility that a judgment might impede Dutcher’s ability to protect his interest, or lead to later relitigation by him.

The optimum solution, an adjudication of the permission question that would be binding on all interested persons, was not “feasible,” however, for Dutcher could not be made a defendant without destroying diversity. Hence the problem was the one to which Rule 19 (b) appears to address itself: in the absence of a person who “should be joined if feasible,” should the court dismiss the action or proceed without him? Since this problem emerged for the first time in the Court of Appeals, there were also two subsidiary questions. First, what was the effect, if any, of the failure of the defendants to raise the matter in the District Court? Second, what was the importance, if any, of the fact that a judgment, binding on the parties although not binding on Dutcher, had already been reached after extensive litigation? The three questions prove, on examination, to be interwoven.

We conclude, upon consideration of the record and applying the “equity and good conscience” test of Rule 19 (b), that the Court of Appeals erred in not allowing the judgment to stand.

Rule 19 (b) suggests four “interests” that must be examined in each case to determine whether, in equity and good conscience, the court should proceed without a party whose absence from the litigation is compelled. Each of these interests must, in this case, be viewed entirely from an appellate perspective since the matter of joinder was not considered in the trial court. First, the plaintiff has an interest in having a forum. Before the trial, the strength of this interest obviously depends upon whether a satisfactory alternative forum exists. On appeal, if the plaintiff has won, he has a strong additional interest in preserving his judgment. Second, the defendant may properly wish to avoid multiple litigation, or inconsistent relief, or sole responsibility for a liability he shares with another. After trial, however, if the defendant has failed to assert this interest, it is quite proper to consider it foreclosed.

Third, there is the interest of the outsider whom it would have been desirable to join. Of course, since the outsider is not before the court, he cannot be bound by the judgment rendered. This means, however, only that a judgment is not res judicata as to, or legally enforceable against, a nonparty. It obviously does not mean either (a) that a court may never issue a judgment that, in practice, affects a nonparty or (b) that (to the contrary) a court may always proceed without considering the potential effect on nonparties simply because they are not “bound” in the technical sense. Instead, as Rule 19 (a) expresses it, the court must consider the extent to which the judgment may “as a practical matter impair or impede his ability to protect” his interest in the subject matter. When a case has reached the appeal stage the matter is more complex. The judgment appealed from may not in fact affect the interest of any outsider even though there existed, before trial, a possibility that a judgment affecting his interest would be rendered.' When necessary, however, a court of appeals should, on its own initiative, take steps to protect the absent party, who of course had no opportunity to plead and prove his interest below.

Fourth, there remains the interest of the courts and the public in complete, consistent, and efficient settlement of controversies. We read the Rule’s third criterion, whether the judgment issued in the absence of the nonjoined person will be “adequate,” to refer to this public stake in settling disputes by wholes, whenever possible, for clearly the plaintiff, who himself chose both the forum and the parties defendant, will not be heard to complain about the sufficiency of the relief obtainable against them. After trial, considerations of efficiency of course include the fact that the time and expense of a trial have already been spent.

Rule 19 (b) also directs a district court to consider the possibility of shaping relief to accommodate these four interests. Commentators had argued that greater attention should be paid to this potential solution to a joinder stymie, and the Rule now makes it explicit that a court should consider modification of a judgment as an alternative to dismissal. Needless to say, a court of appeals may also properly require suitable modification as a condition of affirmance.

Had the Court of Appeals applied Rule 19’s criteria to the facts of the present case, it could hardly have reached the conclusion it did. We begin with the plaintiffs’ viewpoint. It is difficult to decide at this stage whether they would have had an “adequate” remedy had the action been dismissed before trial for non-joinder: we cannot here determine whether the plaintiffs could have brought the same action, against the same parties plus Dutcher, in a state court. After trial, however, the “adequacy” of. this hypothetical alternative, from the plaintiffs’ point of view, was obviously greatly diminished. Their interest in preserving a fully litigated judgment should be overborne only by rather greater opposing considerations than would be required at an earlier stage when the plaintiffs’ only concern was for a federal rather than a state forum.

Opposing considerations in this case are hard to find. The defendants had no stake, either asserted or real, in the joinder of Dutcher. They showed no interest in joinder until the Court of Appeals took the matter into its own hands. This properly forecloses any interest of theirs, but for purposes of clarity we note that the insurance company, whose liability was limited to $100,000, had or will have full opportunity to litigate each claim on that fund against the claimant involved. Its only concern with the absence of Dutcher was and is to obtain a windfall escape from its defeat at trial.

The interest of the outsider, Dutcher, is more difficult to reckon. The Court of Appeals, concluding that it should not follow Rule 19’s command to determine whether, as a practical matter, the judgment impaired the nonparty’s ability to protect his rights, simply quoted the District Court’s reasoning on the Dead Man issue as proof that Dutcher had a “right” to be joined:

“ ‘The subject matter of this suit is the coverage of Lumbermens’ policy issued to Dutcher. Depending upon the outcome of this trial, Dutcher may have the policy all to himself or he may have to share its coverage with the Cionci Estate, thereby extending the availability of the proceeds of the policy to satisfy verdicts and judgments in favor of the two Estate plaintiffs. Sharing the coverage of a policy of insurance with finite limits with another, and thereby making that policy available to claimants against that other person is immediately worth less than having the coverage of such policy available to Dutcher alone. By the outcome in the instant case, to the extent that the two Estate plaintiffs will have the proceeds of the policy available to them in their claims against Cionci’s estate, Dutcher will lose a measure of protection. Conversely, to the extent that the proceeds of this policy are not available to the two Estate plaintiffs Dutcher will gain.... It is sufficient for the purpose of determining adversity [of interest] that it appears clearly that the measure of Dutcher’s protection under this policy of insurance is dependent upon the outcome of this suit. That being so, Dutcher’s interest in these proceedings is adverse to the interest of the two Estate plaintiffs, the parties who represent, on this record, the interests of the deceased persons in the matter in controversy.’ ”

There is a logical error in the Court of Appeals’ appropriation of this reasoning for its own quite different purposes: Dutcher had an “adverse” interest (sufficient to invoke the Dead Man Rule) because he would have been benefited by a ruling in favor of the insurance company; the question before the Court of Appeals, however, was whether Dutcher was harmed by the judgment against the insurance company.

The two questions are not the same. If the three plaintiffs had lost to the insurance company on the permission issue, that loss would have ended the matter favorably to Dutcher. If, as has happened, the three plaintiffs obtain a judgment against the insurance company on the permission issue, Dutcher may still claim that as a nonparty he is not estopped by that judgment from relitigating the issue. At that point it might be argued that Dutcher should be bound by the previous decision because, although technically a nonparty, he had purposely bypassed an adequate opportunity to intervene. We do not now decide whether such an argument would be correct under the circumstances of this case. If, however, Dutcher is properly foreclosed by his failure to intervene in the present litigation, then the joinder issue considered in the Court of Appeals vanishes, for any rights of Dutcher’s have been lost by his own inaction.

If Dutcher is not foreclosed by his failure to intervene below, then he is not “bound” by the judgment against the insurance company and, in theory, he has not been harmed. There remains, however, the practical question whether Dutcher is likely to have any need, and if so will have any opportunity, to relitigate. The only possible threat to him is that if the fund is used to pay judgments against Cionci the money may in fact have disappeared before Dutcher has an opportunity to assert his interest. Upon examination, we find this supposed threat neither large nor unavoidable.

The state-court actions against Dutcher had lain dormant for years at the pleading stage by the time the Court of Appeals acted. Petitioner asserts here that under the applicable Pennsylvania vicarious liability law there is virtually no chance of recovery against Dutcher. We do not accept this assertion as fact, but the matter could have been explored below. Furthermore, even in the event of tort judgments against Dutcher, it is unlikely that he will be prejudiced by the outcome here. The potential claimants against Dutcher himself are identical with the potential claimants against Cionci’s estate. Should the claimants seek to collect from Dutcher personally, he may be able to raise the permission issue defensively, making it irrelevant that the actual monies paid from the fund may have disappeared: Dutcher can assert that Cionci did not have his permission and that therefore the payments made on Cionci’s behalf out of Dutcher’s insurance policy should properly be credited against Dutcher’s own liability. Of course, when Dutcher raises this defense he may lose, either on the merits of the permission issue or on the ground that the issue is foreclosed by Dutcher’s failure to intervene in the present case, but Dutcher will not have been prejudiced by the failure of the District Court here to order him joined.

If the Court of Appeals was unconvinced that the threat to Dutcher was trivial, it could nevertheless have avoided all difficulties by proper phrasing of the decree. The District Court, for unspecified reasons, had refused to order immediate payment on the Cionci judgment. Payment could have been withheld pending the suits against Dutcher and relitigation (if that became necessary) by him. In this Court, furthermore, counsel for petitioner represented orally that the tort plaintiffs would accept a limitation of all claims to the amount of the insurance policy. Obviously such a compromise could have been reached below had the Court of Appeals been willing to abandon its rigid approach and seek ways to preserve what was, as to the parties, subject to the appellant’s other contentions, a perfectly valid judgment.

The suggestion of potential relitigation of the question of “permission” raises the fourth “interest” at stake in joinder cases — efficiency. It might have been preferable, at the trial level, if there were a forum available in which both the company and Dutcher could have been made defendants, to dismiss the action and force the plaintiffs to go elsewhere. Even this preference would have been highly problematical, however, for the actual threat of relitigation by Dutcher depended on there being judgments against him and on the amount of the fund, which was not revealed to the District Court. By the time the case reached the Court of Appeals, however, the problematical preference on efficiency grounds had entirely disappeared: there was no reason then to throw away a valid judgment just because it did not theoretically settle the whole controversy.

II.

Application of Rule 19 (b)’s “equity and good conscience” test for determining whether to proceed or dismiss would doubtless have led to a contrary result below. The Court of Appeals’ reasons for disregarding the Rule remain to be examined. The majority of the court concluded that the Rule was inapplicable because “substantive” rights are involved, and substantive rights are not affected by the Federal Rules. Although the court did not articulate exactly what the substantive rights are, or what law determines them, we take it to have been making the following argument: (1) there is a category of persons called “indispensable parties”; (2) that category is defined by substantive law and the definition cannot be modified by rule; (3) the right of a person falling within that category to participate in the lawsuit in question is also a substantive matter, and is absolute.

With this we may contrast the position that is reflected in Rule 19. Whether a person is “indispensable,” that is, whether a particular lawsuit must be dismissed in the absence of that person, can only be determined in the context of particular litigation. There is a large category, whose limits are not presently in question, of persons who, in the Rule’s terminology, should be “joined if feasible,” and who, in the older terminology, were called either necessary or indispensable parties. Assuming the existence of a person who should be joined if feasible, the only further question arises when joinder is not possible and the court must decide whether to dismiss or to proceed without him. To use the familiar but confusing terminology, the decision to proceed is a decision that the absent person is merely “necessary” while the decision to dismiss is a decision that he is “indispensable.” The decision whether to dismiss (i. e., the decision whether the person missing is “indispensable”) must be based on factors varying with the different cases, some such factors being substantive, some procedural, some compelling by themselves, and some subject to balancing against opposing interests. Rule 19 does not prevent the assertion of compelling substantive interests; it merely commands the courts to examine each controversy to make certain that the interests really exist. To say that a court “must” dismiss in the absence of an indispensable party and that it “cannot proceed” without him puts the matter the wrong way around: a court does not know whether a particular person is “indispensable” until it has examined the situation to determine whether it can proceed without him.

The Court of Appeals concluded, although it was the first court to hold, that the 19th century joinder cases in this Court created a federal, common-law, substantive right in a certain class of persons to be joined in the corresponding lawsuits. At the least, that was not the way the matter started. The joinder problem first arose in equity and in the earliest case giving rise to extended discussion the problem was the relatively simple one of the inefficiency of litigation involving only some of the interested persons. A defendant being sued.by several cotenants objected that the other cotenants were not made parties. Chief Justice Marshall replied:

“This objection does not affect the jurisdiction, but addresses itself to the policy of the Court. Courts of equity require, that all the parties concerned in interest shall be brought before them, that the matter in controversy may be finally settled. This equitable rule, however, is framed by the Court itself, and is subject to its discretion. . . . [B]eing introduced by the Court itself, for the purposes of justice, [the rule] is susceptible of modification for the promotion of those purposes. ... In the exercise of its discretion, the Court will require the plaintiff to do all in his power to bring every person concerned in interest before the Court. But, if the case may be completely decided as between the litigant parties, the circumstance that an interest exists in some other person, whom the process of the Court cannot reach . . . ought not to prevent a decree upon its merits.”

Following this case there arose three cases, also in equity, that the Court of Appeals here held to have declared a “substantive” right to be joined. It is true that these cases involved what would now be called “substantive” rights. This substantive involvement of the absent person with the controversy before the Court was, however, in each case simply an inescapable fact of the situation presented to the Court for adjudication. The Court in each case left the outsider with no more “rights” than it had already found belonged to him. The question in each case was simply whether, given the substantive involvement of the outsider, it was proper to proceed to adjudicate as between the parties.

The first of the cases was Mallow v. Hinde, 12 Wheat. 193, in which, in essence, the plaintiff sought specific performance of a contract to convey land, but sought it not against his vendor (who could not be joined) but against a person who claimed through an entirely different chain of title. The Court saw that any declaration of rights between the parties before it would either purport (incorrectly) to determine the validity of plaintiff’s contract with his grantor, or would decide nothing. The Court said, in language quoted here by the Court of Appeals:

“In this case, the complainants have no rights separable from, and independent of, the rights of persons not made parties. The rights of those not before the Court lie at the very foundation of the claim of right by the plaintiffs, and a final decision cannot be made between the parties litigant without directly affecting and prejudicing the rights of others not made parties. . . .
“We do not put this case upon the ground of jurisdiction, but upon a much broader ground . . . . We put it on the ground that no Court can adjudicate directly upon a person’s right, without the party being either actually or constructively before the Court.”

Nothing in this language is inconsistent with the Rule 19 formulation, or otherwise suggests that lower courts are expected to proceed without examining the actual interest of the non joined person. As the Court explicitly stated, there is no question of “jurisdiction” and there can be no binding adjudication of a person’s rights in the absence of that person. Rather, the problem under the circumstances was that the substantive involvement of the grantor was such that in his absence there was nothing for the Court to decide.

The second case relied upon by the Court of Appeals, Northern Indiana R. Co. v. Michigan Central R. Co., 15 How. 233, presents a different aspect of joinder. There suit was brought for an injunction against construction by defendant of a railroad that it was under contract to a non joined outsider to build. Thus the plaintiff was seeking equitable relief that would, in practice, abrogate the contractual rights of a nonparty. Among the unpleasant possibilities entailed by proceeding was the likelihood that the defendant might find itself subject to directly conflicting injunctive orders. The Court ruled that,

“. . . in a case like the present, where a court cannot but see that the interest of the New Albany Company must be vitally affected, if the relief prayed by the complainants be given, the court must refuse to exercise jurisdiction in the case, or become the instrument of injustice.”

Again, the Court of Appeals’ reliance on this language to show that in any case where an outsider “may be affected” it is necessarily unjust to proceed, is altogether misplaced: the Court in Northern Indiana R. Co. simply found that there would be injustice in proceeding given the particular factual and legal situation before it. Neither Rule 19, nor we, today, mean to foreclose an examination in future cases to see whether an injustice is being, or might be, done to the substantive, or, for that matter, constitutional, rights of an outsider by proceeding with a particular case. In this instance, however, no such examination was made below, and no such injustice appears on the record here.

The most influential of the cases in which this Court considered the question whether to proceed or dismiss in the absence of an interested but not joinable outsider is Shields v. Barrow, 17 How. 130, referred to in the opinion below. There the Court attempted, perhaps unfortunately, to state general definitions of those persons without whom litigation could or could not proceed. In the former category were placed

“Persons having an interest in the controversy, and who ought to be made parties, in order that the court may act on that rule which requires it to decide on, and finally determine the entire controversy, and do complete justice, by adjusting all the rights involved in it. These persons are commonly termed necessary parties; but if their interests are separable from those of the parties before the court, so that the court can proceed to a decree, and do complete and final justice, without affecting other persons not before the court, the latter are not indispensable parties.”

The persons in the latter category were

“Persons who not only have an interest in the controversy, but an interest of such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.”

These generalizations are still valid today, and they are consistent with the requirements of Rule 19, but they are not a substitute for the analysis required by that Rule. Indeed, the second Shields definition states, in rather different fashion, the criteria for decision announced in Rule 19 (b). One basis for dismissal is prejudice to the rights of an absent party that “cannot” be avoided in issuance of a' final decree. Alternatively, if the decree can be so written that it protects the interests of the absent persons, but as so written it leaves the controversy so situated that the outcome may be inconsistent with “equity and good conscience,” the suit should be dismissed.

The majority of the Court of Appeals read Shields v. Barrow to say that a person whose interests “may be affected” by the decree of the court is an indispensable party, and that all indispensable parties have a “substantive right” to have suits dismissed in their absence. We are unable to read Shields as saying either. It dealt only with persons whose interests must, unavoidably, be affected by a decree and it said nothing about substantive rights. Rule 19 (b), which the Court of Appeals dismissed as an ineffective attempt to change the substantive rights stated in Shields, is, on the contrary, a valid statement of the criteria for determining whether to proceed or dismiss in the forced absence of an interested person. It takes, for aught that now appears, adequate account of the very real, very substantive claims to fairness on the part of outsiders that may arise in some cases. This, however, simply is not such a case.

III.

The Court of Appeals stated a second and distinct ground for reversing the District Court and ordering dismissal of the action. It will be recalled that at the time the present declaratory judgment action came to trial two tort actions were pending in the state courts. In one, the estate of the deceased truck driver, Smith, was suing the estate of Cionci, as tortfeasor, plus Dutcher, on the theory that Cionci was doing an errand for him at the time of the accident, plus Lynch’s estate, on the theory that Lynch had been in “control” of Cionci. Harris, the injured passenger, was suing the same three defendants on the same theories in a separate action. The Court of Appeals concluded that since these actions “presented the mooted question as to the coverage of the policy,” the issue presented in the present proceeding, the District Court should have declined jurisdiction in order to allow the state courts to settle- this question of state law.

We believe the Court of Appeals decided this question incorrectly. While we reaffirm our prior holding that a federal district court should, in the exercise of discretion, decline to exercise diversity jurisdiction over a declaratory judgment action raising issues of state law when those same issues are being presented contemporaneously to state courts, e. g., Brillhart v. Excess Ins. Co., 316 U. S. 491, we do not find that to be the case here.

This issue, like the joinder issue, was not raised at trial. While we do not now declare that a court of appeals may never on its own motion compel dismissal of an action as an unwarranted intrusion upon state adjudication of state law, we do conclude that, this being a discretionary matter, the existence of a verdict reached after a prolonged trial in which the defendants did not invoke the pending state actions should be taken into consideration in deciding whether dismissal is the wiser course.

It can hardly be said that Lynch’s administrator, the plaintiff and petitioner in this case, would have had a satisfactory opportunity to litigate the issue of Cionci’s permission in the state actions. The Court of Appeals said that “all the persons involved in the accident were parties” to the state-court actions. If the implication is that the state actions could have resulted in judgments in favor of Lynch’s estate and against the insurance company on the issue of Cionei’s permission, this implication is not correct. The insurance company was not a party to the tort actions, and was not defending Cionci’s estate. Lynch’s estate was a party only in the sense that Lynch’s personal representative (a different person from Lynch’s administrator, the plaintiff in this case) was made a defendant in tort. Furthermore, the Smith and Harris actions against Cionci had nothing to do with the issue of insurance coverage: had Smith or Harris won a judgment against Cionci’s estate, they would have had to bring a further action against the insurance company; this further action could well have been brought in a federal court. In short, the net result of dismissal here would presumably have been a diversity action identical with this one, except that Lynch’s estate would have been compelled to wait upon the convenience of plaintiffs over whom it had no control, and would have been dependent upon a victory by those plaintiffs in a suit in which it was a defendant.

The issues that were before the state courts in the tort actions were not the same as the issues presented by this case. To be sure, a critical question of fact in both cases was what Dutcher said to Cionci when he gave him the keys. But in the state-court actions the ultimate question was whether Cionci was acting as Dutcher’s agent, thus making Dutcher personally liable for Cionci’s tort. In this case the question was simply whether Cionci had “permission,” thus bringing Cionci’s own liability within the coverage of the insurance policy. Resolution of the “agency” issue in the state court would have had no bearing on the “permission” issue even if that resolution were binding on Lynch’s estate. Furthermore, although the state court would have had to rule (and still will have to do so, if the cases are ever tried) whether or not Dutcher may testify against the estates under the Dead Man Rule, this question is also a different one in the state and federal cases. In the state cases, Dutcher was a defendant, and the question would be whether he could testify in defense against his own liability. In the present case the question was rather whether he could testify, as a nonparty, on the coverage of his insurance policy.

We think it clear that the judgment below cannot stand. The judgment is vacated and the case is remanded to the Court of Appeals for consideration of those issues raised on appeal that have not been considered, and, should the Court of Appeals affirm the District Court as to those issues, for appropriate disposition preserving the judgment of the District Court and protecting the interests of nonjoined persons.

It is so ordered.

       Appellants challenged the District Court’s ruling on the Dead Man issue, the fairness of submitting the question as to Harris to a jury that had been directed to find in favor of the two estates whose position was factually indistinguishable, and certain instructions.

       For convenience, we treat these interests in a different order from that appearing in Rule 19 (b). Our list follows that of Reed, Compulsory Joinder of Parties in Civil Actions, 55 Mich. L. Rev. 327, 330 (1957).

       The Advisory Committee on the Federal Rules of Civil Procedure, in its Note on the 1966 Revision of Rule 19, quoted at 3 Moore, Federal Practice ¶ 19.01 (hereinafter cited as “Committee Note”), comments as follows on the fourth factor listed in Rule 19 (b), the adequacy of plaintiff’s remedy if the action is dismissed: “[T]he court should consider whether there is any assurance that the plaintiff, if dismissed, could sue effectively in another - forum where better joinder would be possible.” See Fitzgerald v. Haynes,
        241 F. 2d 417, 420 (C. A. 3d Cir.); Fouke v. Schenewerk, 197 F. 2d 234, 236.

       The Committee Note comments that “when the moving party is seeking dismissal in order to protect himself against a later suit by the absent person . . . and is not seeking vicariously to protect the absent person against a prejudicial judgment ... his undue delay in making the motion can properly be counted against him as a reason for denying the motion.” Of course, where an objection to nonjoinder has been erroneously overruled in the district court, the court of appeals may correct the error to prevent harassment of defendants. Young v. Powell, 179 F. 2d 147.

       See the discussion by Reed, supra, n. 2, at 330-335. See also Hazard, Indispensable Party: The Historical Origin of a Procedural Phantom, 61 Col. L. Rev. 1254 (1961).

       See Keegan v. Humble Oil & Refining Co., 155 F. 2d 971.

       See Bourdieu v. Pacific Oil Co., 299 U. S. 65, where this Court held that an inquiry into indispensability would be unnecessary where the complaint did not state a cause of action. But see Calcote v. Texas Pac. Coal & Oil Co., 157 F. 2d 216, criticized, 2 Barron & Holtzoff, Federal Practice & Procedure § 516 (1967 Supp.) (Wright ed.).

        E. g., Hoe v. Wilson, 9 Wall. 501. See generally 2 Barron & Holtzoff, Federal Practice & Procedure §516 (1967 Supp.) (Wright ed.).

        E. g., Reed, supra, n. 2. See Kaplan, Continuing Work of the Civil Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 Harv. L. Rev. 356 (1967). Compare Roos v. Texas Co., 23 F. 2d 171.

       As the Committee Note points out, this principle meshes with others to be considered. An appropriate statement of the question might be “Can the decree be written so as to protect the legitimate interests of outsiders and, if so, would such a decree be adequate to the plaintiff’s needs and an efficient use of judicial machinery?”

       218 F. Supp. 802, 805-806, quoted at 365 F. 2d, at 805.

       Rule 19 was completely rewritten subsequent to the proceedings in the District Court in this case. There is, however, no occasion for separate consideration of the question whether the action of the Court of Appeals would have been proper under the old version of the Rule. The new version was adopted on July 1, 1966, while the appeal, in which the joinder question first arose, was pending. The majority in the Court of Appeals did not purport to rely on the older version, but on its conclusion that the Rule, in either form, had no application to this case. The dissent below found the Rule applicable, and concluded that the District Court should not be reversed on the basis of either version.
      The new text of the Rule was not intended as a change in principles. Rather, the Committee found that the old text “was defective in its phrasing and did not point clearly to the proper basis of decision.” This Court, having the ultimate rule-making authority subject to congressional veto, approved the Committee’s suggestions. Where the new version emphasizes the pragmatic consideration of the effects of the alternatives of proceeding or dismissing, the older version tended to emphasize classification of parties as “necessary” or “indispensable.” Although the two approaches should come to the same point, since the only reason for asking whether a person is “necessary” or “indispensable” is in order to decide whether to proceed or dismiss in his absence and since that decision must be made on the basis of practical considerations, Shaughnessy v. Pedreiro, 349 U. S. 48, and not by “prescribed formula,” Niles-Bement Co. v. Iron Moulders Union, 254 U. S. 77, the Committee concluded, without directly criticizing the outcome of any particular ease, that there had at times been “undue preoccupation with abstract classifications of rights or obligations, as against consideration of the particular consequences of proceeding with the action and the ways by which these consequences might be ameliorated by the shaping of final relief or other precautions.” An excellent example of the cases causing apprehension is Parker Rust-Proof Co. v. Western Union Tel. Co., 105 F. 2d 976. Judge Swan, writing for a panel that included Judges L. Hand and A. N. Hand, stated that a nonjoined person was an “indispensable” party to a suit to compel issuance of a patent, but went on to say that “as the object of the rule respecting indispensable parties is to accomplish justice between all the parties in interest, courts of equity will not suffer it to be so applied as to defeat the very purposes of justice.” Id., at 980. On this basis, the Court of Appeals reversed the District Court’s dismissal of the action for nonjoinder. Under the present version of the Rule, the same result would be reached for, ultimately, the same reasons. The present version simply avoids the purely verbal anomaly, an indispensable person who turns out to be dispensable after all.

       One commentator has stated that “[i]f this [the Court of Appeals’ position in the present case] is sound, amended Rule 19 would be invalid. But there is no case support for the proposition that the judge-made doctrines of compulsory joinder have created substantive rights beyond the reach of the rulemaking power.” 2 Barron & Holtzoff, Federal Practice & Procedure § 512, n. 21.14 (1967 Supp.) (Wright ed.).

       As the Court has before remarked, “[t]here is no prescribed formula for determining in every case whether a person ... is an indispensable party . . . .” Niles-Bement Co. v. Iron Moulders Union, 254 U. S. 77, at 80.

       The Committee Note puts the matter as follows: “The subdivision [19 (b)] uses the word ‘indispensable’ only in a conclusory sense, that is, a person is 'regarded as indispensable’ when he cannot be made a party and, upon consideration of the factors above mentioned, it is determined that in his absence it would be preferable to dismiss the action, rather than to retain it.”

       Numerous cases in the lower federal courts have dealt with compulsory joinder, and the Court of Appeals concluded that principles enunciated in those cases required dismissal here. However, none of the cases cited here or below presented a factual situation resembling .this case: the error made by the Court of Appeals was precisely its reliance on formulas extracted from their contexts rather than on pragmatic analysis. Moreover, although the Court of Appeals concluded that the “distilled essence” of earlier cases is that the question whether to dismiss is “substantive” and that “Rule 19 does not apply to the indispensable party doctrine,” it found no cases actually so holding.
      One of the reasons listed by the Committee Note for the change in the wording of Rule 19 was “Failure to point to correct basis of decision.” The imprecise and confusing language of the original wording of the Rule produced a variety of responses in the lower courts. In some cases a formulaic approach was employed, making it difficult now to determine whether the result reached was proper or not. Other cases demonstrate close attention to the significant pragmatic considerations involved in the particular circumstances, leading to a resolution consistent with practical and creative justice. For examples in the latter category, see Roos v. Texas Co., 23 F. 2d 171 (C. A. 2d Cir.) (L. Hand, J.) (decided prior to adoption of Fed. Rules Civ. Proc.); Kroese v. General Steel Castings Corp., 179 F. 2d 760 (C. A. 3d Cir.) (Goodrich, J.); Stevens v. Loomis, 334 F. 2d 775 (C. A. 1st Cir.) (Aldrich, J.). It is interesting that the only judicial recognition found by the Court of Appeals of its view that indispensability is a “substantive” matter is a footnote in the last-cited case attributing to the (then) proposed new formulation of Rule 19 “the view that what are indispensable parties is a matter of substance, not of procedure.” Id., at 778, n. 7. Taken in context, Judge Aldrich’s statement refers simply to the view that a decision whether to dismiss must be made pragmatically, in the context of the “substance” of each case, rather than by procedural formula. The statement is hardly support for the proposition that a court of appeals may ignore Rule 19’s command to undertake a practical examination of circumstances.

        Elmendorf v. Taylor, 10 Wheat. 152, at 166-168.

       12 Wheat., at 198, quoted at 365 F. 2d, at 806. The facts were that T, a trustee of land for the benefit of certain persons, may or may not have conveyed legal title to defendant Hinde. Plaintiff Mallow claimed equitable title by virtue of an executory agreement between the trust beneficiaries and one Langham, who conveyed to plaintiff. Mallow sued Hinde to compel conveyance of the legal title, but T and the beneficiaries could not be joined. Hinde contended that the beneficiaries had no power to sell to Langham, and that the purported contract had, in any event, been obtained by fraud.

       15 How., at 246, quoted at 365 F. 2d, at 806.

       17 How., at 139.

        Ibid. Plaintiff was suing for rescission of a contract but was unable to join some of the parties to it. Reed, supra, n. 2, comments that much later difficulty could have been avoided had this Court pointed the way in Shields by undertaking a practical examination of the facts. Id., at 340-346. He concludes that “The facts in the opinion are insufficient to demonstrate that the result is a just one.” Id., at 344. See also Kaplan, supra, n. 9, at 361.

       Indeed, for example, it has been clear that in a diversity case the question of joinder is one of federal law. E. g., De Korwin v. First Nat. Bank, 156 F. 2d 858, 860, citing Shields. To be sure, state-law questions may arise in determining what interest the outsider actually has, e. g., Kroese v. General Steel Castings Corp., 179 F. 2d 760 (C. A. 3d Cir.), but the ultimate question whether, given those state-defined interests, a federal court may proceed without the outsider is a federal matter.


author: Mr. Justice Stewart, Mr. Justice White, Mr. Justice Harlan,

text:
    SMITH v. ILLINOIS.
    No. 158.
    Argued December 7, 1967.
    Decided January 29, 1968.

      Gerald W. Getty argued the cause for petitioner. With him on the briefs were James J. Doherty and Marshall J. Hartman.

      John J. O’Toole, Assistant Attorney General of Illinois, argued the cause for respondent. With him on the brief were William G. Clark, Attorney General, and Philip J. Rock, Assistant Attorney General.
   Opinion of the Court by

Mr. Justice Stewart,

announced by Mr. Justice Fortas.

In Pointer v. Texas, 380 U. S. 400, 403, this Court held that the Sixth Amendment right of an accused to confront the witnesses against him is a “fundamental right . . . made obligatory on the States by the Fourteenth Amendment.” The question presented in this case is whether Illinois denied that right to the petitioner, Fleming Smith. He was convicted in a criminal court of Cook County, Illinois, upon a charge of illegal sale of narcotics, and his conviction was affirmed on appeal. We granted certiorari to consider his constitutional claim.

At the trial the principal witness against the petitioner was a man who identified himself on direct examination as “James Jordan.” This witness testified that he had purchased a bag of heroin from the petitioner in a restaurant with marked money provided by two Chicago police officers. The officers corroborated part of this testimony, but only this witness and the petitioner testified to the crucial events inside the restaurant, and the petitioner’s version of those events was entirely different. The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness.

On cross-examination this witness was asked whether “James Jordan” was his real name. He admitted, over the prosecutor’s objection, that it was not. He was then asked what his correct name was, and the court sustained the prosecutor’s objection to the question. Later the witness was asked where he lived, and again the court sustained the prosecutor’s objection to the question.'

As the Court said in Pointer, “It cannot seriously be doubted at this late date that the right of cross-examination is included in the right of an accused in a criminal case to confront the witnesses against him.” 380 U. S., at 404. Even more recently we have repeated that “a denial of cross-examination without waiver . . . would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” Brookhart v. Jams, 384 U. S. 1, 3.

In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in “exposing falsehood and bringing out the truth” through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

In Alford v. United States, 282 U. S. 687, this Court almost 40 years ago unanimously reversed a federal conviction because the trial judge had sustained objections to questions by the defense seeking to elicit the “place of residence” of a prosecution witness over the insistence of defense counsel that “the jury was entitled to know 'who the witness is, where he lives and what his business is.’ ” 282 U. S., at 688-689. What the Court said in reversing that conviction is fully applicable here:

“It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. ... To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. . . .
"... The question 'Where do you live?’ was not only an appropriate preliminary to the cross-examination of the witness, but on its face, without any such declaration of purpose as was made by counsel here, was an essential step in identifying the witness with his environment, to which cross-examination may always be directed. . . .
“The extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted. . . . But no obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him. . . . But no such case is presented here. . . 282 U. S., at 692-694.

In Pointer v. Texas, supra, the Court made clear that “the right of an accused to be confronted with the witnesses against him must be determined by the same standards whether the right is denied in a federal or state proceeding.” 380 U. S., at 407-408. In this state case we follow the standard of Alford and hold that the petitioner was deprived of a right guaranteed to him under the Sixth and Fourteenth Amendments of the Constitution.

D , Reversed.

Mr. Justice White,

with whom Mr. Justice Marshall joins,

concurring.

In Alford v. United States, 282 U. S. 687, 694 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of the witness. But in these situations, if the question asked is one that is normally permissible, the State or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer and exercise an informed discretion in making his ruling. Here the State gave no reasons justifying the refusal to answer a quite usual and proper question. For this reason I join the Court’s judgment and its opinion which, as I understand it, is not inconsistent with these views. I should note in addition that although petitioner and his attorney may have known the witness in the past, it is not at all clear that either of them had ever known the witness’ real name or knew where he lived at the time of the trial.

Mr. Justice Harlan,

dissenting.

We granted certiorari in this case believing that it presented with requisite clarity the issue whether a defendant in a state criminal trial may constitutionally be denied on cross-examination of a principal state witness the right to question such witness as to his actual name and address. Were I still of the view, after examination of the record, that this case clearly presents that question, I would concur in the Court’s judgment on due process, but not on Sixth Amendment “incorporation,” grounds. The record, however, raises serious doubt that this petitioner was denied any information that he did not already have, thus either rendering the error harmless or at least making the issue inappropriate for constitutional adjudication.

The State’s witness identified himself as “James Jordan.” Apparently knowing that this was not his real or his only' name, defense counsel asked Jordan whether that was his correct name, and received a negative reply. Further inquiry was disallowed by the trial judge as to both the witness’ name and address. Later, however, defense counsel said of the witness “I represented him before, I know him.” Still later, when asked by defense counsel on direct examination how long he had known James Jordan, the defendant replied, “I’d say a few years or so, casually.” The defendant also indicated that he knew Jordan to be a narcotics addict, and that he knew that Jordan was acquainted with a person whose legal name he knew to be Herbert Simpson.

In the face of these developments, the Court’s suggestion that perhaps the defense nevertheless did not know Jordan’s name or address is, to say the least, exceedingly dubious. At no point did defense counsel, or defendant, state that he lacked the requested information, nor did counsel pursue the point with any vigor after the State’s objections to the questions,* he simply turned to another series of questions without suggesting any way in which his attempt to present a defense had been prejudiced. The inference seems to me patent that counsel was asking routine questions, to which he already knew the answers, and that his failure to get answers in court was of no consequence.

I would not reverse a state conviction on a record so opaque, indeed one savoring of a disingenuous constitutional contention. Cf. Rescue Army v. Municipal Court, 331 U. S. 549; Poe v. Ullman, 367 U. S. 497. I would therefore dismiss the writ as improvidently granted.

       70 Ill. App. 2d 289, 217 N. E. 2d 546.

       387 U. S. 904.

       The officers testified that the witness had entered the restaurant with the marked money and without narcotics, and that he had emerged with a bag of heroin. They also testified that they had found some of the marked money in the petitioner’s possession when they arrested him.

       The petitioner testified that he had refused to sell the witness narcotics but had directed him to another man in the restaurant from whom he believed a purchase had been made. The petitioner also testified that he used a $5 bill to purchase a cup of coffee, and must have received the marked money in his change.

       “MR. PRide: Is James Jordan your correct name?
      “Mr. Martwick: Object.
      “Mr. Pride.* I have a right to know if it is his correct name.
      “The Court: He may answer if it is his correct name or not.
      “Mr. Pride: Is that your correct name?
      “A. No, it is not.
      “Q. What is your correct name?
      “Mr. Martwick: Object.
      “The Court: I won’t have him answer that.”

      “Q. Now, where do you live now?
      “Mr. Martwick: Objection.
      “Mr. Pride: This is material.
      “Mr. Martwick: Objection, Judge.
      “The Court: Yes, objection allowed.”
      The record shows that in fact the petitioner and his lawyer knew “Jordan” and that the lawyer had once represented him. However, there is no evidence in the record that either the petitioner or his lawyer knew “Jordan’s” correct name or where he was living at the time of this trial.

       See Pointer v. Texas, 380 U. S., at 404.

       It is to be noted that no claim of the privilege against compulsory self-incrimination was asserted by “James Jordan.” Cf. United States v. Cardillo, 316 F. 2d 606. Nor are this Court’s decisions in McCray v. Illinois, 386 U. S. 300, and Roviaro v. United States, 353 U. S. 53, relevant here. In neither of those cases was the informer a witness for the prosecution. Another recent Illinois decision seems to have recognized that the state evidentiary informer privilege is not involved when the informer is himself a witness at the trial. People v. Smith, 69 Ill. App. 2d 83, 89, 216 N. E. 2d 520, 523. See 8 Wigmore, Evidence §2374, n. 6 (McNaughton rev. 1961).

      See my opinion concurring in the result in Pointer v. Texas, 380 U. S. 400, 408.


author: Per Curiam.

text:
    KOLOD et al. v. UNITED STATES.
    No. 133.
    Certiorari denied October 9, 1967.
    Rehearing and certiorari granted and case decided January 29, 1968.

      Edward Bennett Williams, Harold Ungar and W. H. Erickson for petitioners.

      Solicitor General Griswold, former Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Sidney M. Glazer for the United States.
   Per Curiam.

The petition for rehearing is granted and the order denying petitioners’ petition for the writ of certiorari, 389 U. S. 834, is set aside. The petition for rehearing alleges that petitioners’ counsel was informed after the petition for the writ of certiorari was filed that petitioner Alderisio’s conversations were monitored through electronic surveillance conducted by a government agency at Alderisio’s place of business in Chicago. The Court invited the Solicitor General to respond to the petition for rehearing. 389 U. S. 966. The Solicitor General responded that the petition should be denied because the case did not come within “. . . the policy of the Department of Justice to make disclosure to the courts if it finds (1) that a defendant was present or participated in a conversation overheard by unlawful electronic surveillance, and (2) that the government has thereby obtained any information which is arguably relevant to the litigation involved.” The Solicitor General stated that “As a result of his inquiries and examination, he is satisfied that there is nothing that is arguably relevant to the present case,” that is, “no overheard conversation in which any of the petitioners participated is arguably relevant to this prosecution.”

We read the response as admitting that Alderisio’s conversations were overheard by unlawful electronic eavesdropping but as justifying nondisclosure on the basis of the Department’s determination that the information obtained was not arguably relevant to this prosecution. We cannot accept the Department’s ex parte determination of relevancy in lieu of such determination in an adversary proceeding in the District Court. Accordingly we grant the petition for certiorari as to each of the petitioners Alderisio and Alderman, vacate the judgment of the Court of Appeals, and remand the case to the District Court for a hearing, findings, and conclusions on the nature and relevance to these convictions of any conversations that may be shown to have been overheard through unlawful electronic surveillance of petitioner Alderisio’s place of business in Chicago. In such proceedings, the District Court will confine the evidence presented by both sides to that which is material to questions of the content of any electronically eavesdropped conversations at petitioner Alderisio’s place of business in Chicago, and of the relevance of any such conversations to petitioners’ subsequent convictions. The District Court will make such findings of fact on these questions as may be appropriate in light of the further evidence and of the entire existing record. If the District Court decides, on the basis of such findings, that the convictions of the petitioners were not tainted by the use of evidence improperly obtained, it will enter new final judgments of convictions based on the existing record as supplemented by its further findings, thereby preserving to all affected parties the right to seek further appropriate appellate review. If, on the other hand, the District Court concludes after such further proceedings that the conviction of a petitioner was tainted, it would then become its duty to accord such petitioner a new trial. Hoffa v. United States, 387 U. S. 231, 233-234.

The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.

It is so ordered.

Mr. Justice Black dissents.

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

      Petitioner Kolod died in August 1967 and the petition for cer-tiorari as to him is dismissed.