source: Caselaw Access Project

author: Mr. Justice Brennan Mr. Justice Blacicmun, Me. Justice Stevens,

license: Public Domain

text:
    OSCAR MAYER & CO. et al. v. EVANS
    No. 78-275.
    Argued February 28, 1979
    Decided May 21, 1979

      Brennan, J., delivered the opinion of the Court, in which Stewart, White, Marshall, and BlackmuN, JJ., joined, and in all but Part III of which Burger, C. J., and Powell, Rehnquist, and Stevens, JJ., joined. Blackmun, J., filed a concurring opinion, post, p. 765. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Burger, C. J., and Powell and Rehnquist, JJ., joined, post, p. 767.

      James W. Gladden, Jr., argued the cause for petitioners. With him on the briefs were Arthur J. Kowitt and William J. Reifman,

      Mark W. Bennett argued the cause for respondent. With him on the brief was Gordon E. Allen. Allan A. Ryan, Jr., argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General McCree, Deputy Solicitor General Easterbrook, and Dennis D. Clark.

        Stephen A. Bolcat and Stanley T. Kaleczyc filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.

   Mr. Justice Brennan

delivered the opinion of the Court.

Section 14 (b) of the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 607, as set forth in 29 U. S. C. § 633 (b), provides in pertinent part:

“In the case of an alleged unlawful practice occurring in a State which has a law prohibiting discrimination in employment because of age and establishing or authorizing a State authority to grant or seek relief from such discriminatory practice, no suit may be brought under section 626 of this title before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated: Provided, ... [i]f any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.”

This case presents three questions under that section. First, whether § 14 (b) requires an aggrieved person to resort to appropriate state remedies before bringing suit under § 7 (c) of the ADEA, 29 TJ. S. C. § 626 (c). Second, if so, whether the state proceedings must be commenced within time limits specified by state law in order to preserve the federal right of action. Third, if so, whether any circumstances may excuse the failure to commence timely state proceedings.

We hold that § 14 (b) mandates that a grievant not bring suit in federal court under § 7 (c) of the ADEA until he has first resorted to appropriate state administrative proceedings. We also hold, however, that the grievant is not required by § 14 (b) to commence the state proceedings within time limits specified by state law. In light of these holdings, it is not necessary to address the question of the circumstances, if any, in which failure to comply with § 14 (b) may be excused.

I

Respondent Joseph Evans was employed by petitioner Oscar Mayer & Co. for 23 years until his involuntary retirement in January 1976. On March 10, 1976, respondent filed with the United States Department of Labor a notice of intent to sue the company under the ADEA. Respondent charged that he had been forced to retire because of his age in violation of the Act. At approximately this time respondent inquired of the Department whether he was obliged to file a state complaint in order to preserve his federal rights. The Department informed respondent that the ADEA contained no such requirement. Relying on this official advice, respondent refrained from resorting to state proceedings. On March 7, 1977, after federal conciliation efforts had failed, respondent brought suit against petitioner company and company officials in the United States District Court for the Southern District of Iowa.

Petitioners moved to dismiss the complaint on the grounds that the Iowa State Civil Rights Commission was empowered to remedy age discrimination in employment and that § 14 (b) required resort to this state remedy prior to the commencement of the federal suit. The District Court denied the motion, and the Court of Appeals for the Eighth Circuit affirmed. 580 F. 2d 298 (1978). We granted certiorari, 439 U. S. 925 (1978). We reverse.

II

Petitioners argue that § 14 (b) mandates that in States with agencies empowered to remedy age discrimination in employment (deferral States) a grievant may not bring suit under the ADEA unless he has first commenced a proceeding with the appropriate state agency. Respondent, on the other hand, argues that the grievant has the option of whether to resort to state proceedings, and that § 14 (b) requires only that grievants choosing to resort to state remedies wait 60 days before bringing suit in federal court. The question of construction is close, but we conclude that petitioners are correct.

Section 14 (b) of the ADEA was patterned after and is virtually in haec verba with § 706 (c) of Title VII of the Civil Rights Act of 1964 (formerly § 706 (b)), 78 Stat. 259, as redesignated, 86 Stat. 104, 42 U. S. C. § 2000e-5 (c). The relevant portion of § 706 (c) reads as follows:

“In the case of an alleged unlawful employment practice occurring in a State, .. . which has a .. . law prohibiting the unlawful employment practice alleged and establishing or authorizing a State . . . authority to grant or seek relief from such practice ... , no charge may be filed ... by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State . . . law, unless such proceedings have been earlier terminated . . . .”

Congress intended through § 706 (c) to screen from the federal courts those problems of civil rights that could be settled to the satisfaction of the grievant in “a voluntary and localized manner.” See 110 Cong. Rec. 12725 (1964) (remarks of Sen. Humphrey). The section is intended to give state agencies a limited opportunity to resolve problems of employment discrimination and thereby to make unnecessary, resort to federal relief by victims of the discrimination. See Voutsis v. Union Carbide Corp., 452 F. 2d 889 (CA2 1971). Because state agencies cannot even attempt to resolve discrimination complaints not brought to their attention, the section has been interpreted to require individuals in deferral States to resort to appropriate state proceedings before bringing suit under Title VII. See Love v. Pullman Co., 404 U. S. 522 (1972); Olson v. Rembrandt Printing Co., 511 F. 2d 1228 (CA8 1975).

Since the ADEA and Title VII share a common purpose, the elimination of discrimination in the workplace, since the language of § 14 (b) is almost in haec verba with § 706 (c), and since the legislative history of § 14 (b) indicates that its source was § 706 (c), we may properly conclude that Congress intended that the construction of § 14 (b) should follow that of § 706 (c). See Northcross v. Memphis Board of Education, 412 U. S. 427, 428 (1973). We therefore conclude that § 14 (b), like § 706 (c), is intended to screen from the federal courts those discrimination complaints that might be settled to the satisfaction of the grievant in state proceedings. We further conclude that prior resort to appropriate state proceedings is required under § 14 (b), just as under § 706 (c).

The contrary arguments advanced by respondent in support of construing § 14 (b) as merely optional are not persuasive. Respondent notes first that under Title VII persons aggrieved must file with a state antidiscrimination agency before filing with the Equal Employment Opportunity Commission (EEOC). See 42 U. S. C. §2000e-5(c). Under the ADEA, by contrast, grievants may file with state and federal agencies simultaneously. See 29 U. S. C. §§ 626 (d) and 633 (b). From this respondent concludes that the ADEA pays less deference to state agencies and that, as a consequence, ADEA claimants have the option to ignore state remedies.

We disagree. The ADEA permits concurrent rather than sequential state and federal administrative jurisdiction in order to expedite the processing of age-discrimination claims. The premise for this difference is that the delay inherent in sequential jurisdiction is particularly prejudicial to the rights of “older citizens to whom, by definition, relatively few productive years are left.” 113 Cong. Rec. 7076 (1967) (remarks of Sen. Javits).

The .purpose of expeditious disposition would not be frustrated were ADEA claimants required to pursue state and federal administrative remedies simultaneously. Indeed, simultaneous state and federal conciliation efforts may well facilitate rapid settlements. There is no reason to conclude, therefore, that the possibility of concurrent state and federal cognizance supports the construction of § 14 (b) that ADEA grievants may ignore state remedies altogether.

Respondent notes a second difference between the ADEA and Title VII. Section 14 (a) of the ADEA, 29 IT. S. C. § 633 (a), for which Title VII has no counterpart, provides that upon commencement of an action under ADEA, all state proceedings are superseded. From this, respondent concludes that it would be an exercise in futility to require aggrieved persons to file state complaints since those persons may, after only 60 days, abort their involuntary state proceeding by filing a federal suit.

We find no merit in the argument. Unless § 14 (b) is to be stripped of all meaning, state agencies must be given at least some opportunity to solve problems of discrimination. While 60 days provides a limited time for the state agency to act, that was a decision for Congress to make and Congress apparently thought it sufficient. As Senator Dirksen told the Senate during the debates on § 14 (b)’s predecessor, § 706 (c) of Title VII:

“[A]t the local level . . . many cases are disposed of in a matter of days, and certainly not more than a few weeks. In the case of California, FEPC cases are disposed of in an average of about 5 days. In my own State it is approximately 14 days.” 110 Cong. Rec. 13087 (1964).

Respondent argues finally that a Committee Report that accompanied 1978 ADEA amendments supports his construction of § 14 (b). This Committee Report suggested that resort to state remedies should be optional under § 14 (b). See S. Rep. No. 95-493, pp. 6-7 (1978), adopted in Joint Explanatory Statement of the Committee of Conference, H. R. Conf. Rep. No. 95-950, pp. 7, 12 (1978).

We are not persuaded. Senate Report No. 95-493 was written 11 years after the ADEA was passed in 1967, and such “ [1] egislative observations ... are in no sense part of the legislative history.” United Airlines, Inc. v. McMann, 434 U. S. 192, 200 n. 7 (1977). “It is the intent of the Congress that enacted [the section] . . . that controls.” Teamsters v. United States, 431 U. S. 324, 354 n. 39 (1977). Whatever evidence is provided by the 1978 Committee Report of the intent of Congress in 1967, it is plainly insufficient to overcome the clear and convincing evidence that Congress intended § 14 (b) to have the same meaning as § 706 (c). We therefore hold that under § 14 (b) of the ADEA, as under § 706 (c) of Title VII, resort to administrative remedies in deferral States by individual claimants is mandatory, not optional.

Ill

We consider now the consequences of respondent’s failure to file a complaint with the Iowa State Civil Rights Commission. Petitioners argue that since Iowa’s 120-day age-discrimination statute of limitations has run, see Iowa Code §§ 601A.14 (1), (15) (1975), it is now too late for respondent to remedy his procedural omission and that respondent's federal action is therefore jurisdictionally barred. Respondent pleads that since his failure to file was due to incorrect advice by the Department of Labor, his tardiness should be excused.

Both arguments miss the mark. Neither questions of jurisdiction nor questions of excuse arise unless Congress mandated that resort to state proceedings must be within time limits specified by the State. We do not construe § 14 (b) to make that requirement. Section 14 (b) requires only that the grievant commence state proceedings. Nothing whatever in the section requires the respondent here to commence those proceedings within the 120 days allotted by Iowa law in order to preserve a right of action under § 7 (c).

We start with the language of the section. Section 14 (b) provides, in relevant part, that

“no suit may be brought. .. before the expiration of sixty days after proceedings have been commenced under the State law, unless such proceedings have been earlier terminated.” 29 U. S. C. § 633 (b) (emphasis added).

By its terms, then, the section requires only that state proceedings be commenced 60 days before federal litigation is instituted; besides commencement no other obligation is placed upon the ADEA grievant. In particular, there is no requirement that, in order to commence state proceedings and thereby preserve federal rights, the grievant must file with the State within whatever time limits are specified by state law. Rather, use of the word “commenced” strongly implies the opposite — that state limitations periods are irrelevant — since, by way of analogy, under the Federal Rules of Civil Procedure even a time-barred action may be “commenced” by the filing of a complaint. See Fed. Rule Civ. Proc. 3; Magalotti v. Ford Motor Co., 418 F. Supp. 430, 434 (ED Mich. 1976).

This implication is made express by the last sentence of § 14 (b), which specifically provides:

“If any requirement for the commencement of such proceedings is imposed by a State authority other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based, the proceeding shall be deemed to have been commenced for the purposes of this subsection at the time such statement is sent by registered mail to the appropriate State authority.” 29TJ. S. C. § 633 (b).

State limitations periods are, of course, requirements “other than a requirement of the filing of a written and signed statement of the facts upon which the proceeding is based.” Therefore, even if a State were to make timeliness a precondition for commencement, rather than follow the more typical pattern of making untimeliness an affirmative defense, a state proceeding will be deemed commenced for purposes of § 14 (b) as soon as the complaint is filed.

This has been the prevailing interpretation of § 14 (b). See Nickel v. Shatterproof Glass Corp., 424 F. Supp. 884 (ED Mich. 1976); Magalotti v. Ford Motor Co., supra. It is also the prevailing interpretation of § 14 (b)’s counterpart, § 706 (c) of Title VII, which contains an identical definition of commencement. See Davis v. Valley Distributing Co., 522 F. 2d 827, 831-833 (CA9 1975), cert. denied, 429 U. S. 1090 (1977); Olson v. Rembrandt Printing Co., 511 F. 2d, at 1232; Pinckney v. County of Northampton, 433 F. Supp. 373, 376 n. 1 (ED Pa. 1976); McAdams v. Thermal Industries, Inc., 428 F. Supp. 156, 161 (WD Pa. 1977) ; De Gideo v. Sperry-Univac Co., 415 F. Supp. 227, 229 (ED Pa. 1976); see also White v. Dallas Independent School Dist., 581 F. 2d 556, 562 n. 10 (CA5 1978) (en banc) (filing with EEOC tolls state limitations period for federal purposes) ; Ferguson v. Kroger Co., 545 F. 2d 1034 (CA6 1976) (EEOC’s negligent failure to refer charge to state agency within state limitations period does not foreclose federal claim). But see Richardson v. Miller, 446 F. 2d 1247 (CA3 1971).

It is also the EEOC’s interpretation of § 706 (c), see Case No. KC7-5-315, CCH EEOC Decisions (1973) ¶6024 (1969), and as such is “entitled to great deference.” Griggs v. Duke Power Co., 401 U. S. 424, 434 (1971).

This construction of the statute is fully consistent with the ADEA’s remedial purposes and is particularly appropriate “in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Love v. Pullman Co., 404 U. S., at 527.

It is also consistent with the purposes of § 14 (b). Section 14 (b) does not stipulate an exhaustion requirement. The section is intended only to give state agencies a limited opportunity to settle the grievances of ADEA claimants in a voluntary and localized manner so that the grievants thereafter have no need or desire for independent federal relief. Individuals should not be penalized if States decline, for whatever reason, to take advantage of these opportunities. See Pacific Maritime Assn. v. Quinn, 465 F. 2d 108 (CA9 1972). Congress did not intend to foreclose federal relief simply because state relief was also foreclosed. See Voutsis v. Union Carbide Corp., 452 F. 2d, at 893.

The structure of the ADEA reinforces the conclusion that state procedural defaults cannot foreclose federal relief and that state limitations periods cannot govern the efficacy of the federal remedy. The ADEA’s limitations periods are set forth in explicit terms in 29 U. S. C. §§ 626 (d) and (e), not § 14 (b), 29 U. S. C. § 633 (b). Sections 626 (d) and (e) adequately protect defendants against stale claims. We will not attribute to Congress an intent through § 14 (b) to add to these explicit requirements by implication and to incorporate by reference into the ADEA the various state age-discrimination statutes of limitations. Cf. Occidental Life Ins. Co. v. EEOC, 432 U. S. 355, 371 (1977). Congress could not have intended to consign federal lawsuits to the “vagaries of diverse state limitations statutes,” ibid., particularly since, in many States, including Iowa, the limitations periods are considerably shorter than the 180-day period allowed grievants in nondeferral States by 29 U. S. C. § 626 (d)(1). See De Gideo v. Sperry-Univac Co., supra, at 231 n. 9.

That Congress regarded incorporation as inconsistent with the federal scheme is made clear by the legislative history of § 706 (c)’s definition of commencement — the same definition later used in § 14 (b). Proponents of Title VII were concerned that localities hostile to civil rights might enact sham discrimination ordinances for the purpose of frustrating the vindication of federal rights. See 2 B. Schwartz, Statutory History of the United States: Civil Rights 1330 (1970). The statutory definition of commencement as requiring the filing of a state complaint and nothing more was intended to meet this concern while at the same time avoiding burdensome case-by-case inquiry into the reasonableness of various state procedural requirements. Cf. NAACP v. Alabama ex rel. Patterson, 357 U. S. 449 (1958). As Senator Humphrey explained to the Senate:

“ [T] o avoid the possible imposition of onerous State requirements for initiating a proceeding, subsection (b) provides that to comply with the requirement of prior resort to the State agency, an individual need merely send a written statement of the facts to the State agency by registered mail.” 2 Schwartz, supra, at 1352.

The strongest argument against this construction of the statute is that it would permit grievants to avoid state intervention by waiting until the state statute of limitations has expired and then filing federal suit, thus frustrating the intent of Congress that federal litigation be used as a last resort.

No reason suggests itself, however, why an employee would wish to forgo an available state remedy. Prior resort to the state remedy would not impair the availability of the federal remedy, for the two are supplementary, not mutually exclusive. A complainant would save no time by bypassing the state remedy since the federal court must, in any event, defer to the State for 60 days, and is required to defer no longer. See Davis v. Valley Distributing Co., 522 F. 2d 827 (CA9 1975); Nickel v. Shatterproof Glass Corp., 424 F. Supp. 884 (ED Mich. 1976).

We therefore hold that respondent may yet comply with the requirements of § 14 (b) by simply filing a signed complaint with the Iowa State Civil Rights Commission. That Commission must be given an opportunity to entertain respondent’s grievance before his federal litigation can continue. Meanwhile, the federal suit should be held in abeyance. If, as respondent fears, his state complaint is subsequently dismissed as untimely, respondent may then return to federal court. But until that happens, or until 60 days have passed without a settlement, respondent must pursue his state remedy.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court with instructions to enter an order directing the District Court to hold respondent’s suit in abeyance until respondent has complied with the mandate of § 14 (b).

T, 7 , It is so ordered.

Mr. Justice Blacicmun,

concurring.

My preference in this case would have been to affirm the judgment of the Court of Appeals. I am so inclined because I regard the Age Discrimination in Employment Act to be a remedial statute that is to be liberally construed, and because I feel that an affirmance would give full recognition to that remedial character. In addition, I could be persuaded that state procedures and remedies in existence at the time the Act was passed in 1967 were not particularly helpful for the complainant and were procedurally frustrating; that the fact that a federal proceeding supersedes one on the state side indicates which is to be dominant; that ADEA proceedings have their analogy in Fair Labor Standards Act litigation and not in Title VII proceedings; that no waiting period is required before a complainant may resort to a federal remedy (whereas, in striking contrast, under Title VII, state jurisdiction is exclusive for 60 days); that one could reasonably regard the statute as affording a complainant the option of filing either on the state side or on the federal side, and the constraints of § 14 (b) as applicable only if he pursues the state remedy; that it seems so needless to require an untimely state filing that inevitably, and automatically, is to be rejected; that the legislative history of the 1978 amendments, see ante, at 758, while of course not conclusive, might well be regarded, because of its positiveness and clarity, as shedding at least some helpful illumination upon persistent and continuing congressional intent in and since 1967; and that the Government’s participation as amicus curiae on the side of the respondent also affords some indication of the intended interplay of the federal and state legislation.

The Court acknowledges that the “question of construction is close.” Ante, at 755. But this is one of those cases that occasionally appears in the procedural area where it is more important that it be decided (in order to dispel existing conflict, see ante, at 760-761, and n. 7) than that it be decided correctly.

Inasmuch as I feel that I can live with the Court’s decision in this case and that, in the long run, justice will not be denied to anyone possessed of a valid claim, I join the Court’s opinion and its judgment.

Me. Justice Stevens,

with whom The Chief Justice, Mr. Justice Powell, and Mr. Justice Rehnquist join, concurring in part and dissenting in part.

Section 14 (b) of the Age Discrimination in Employment Act of 1967, 81 Stat. 607, 29 U. S. C. § 633 (b), explicitly states that “no suit may be brought” under the Act until the individual has first resorted to appropriate state remedies. Respondent has concededly never resorted to state remedies. In my judgment, this means that his suit should not have been brought and should now be dismissed.

Throughout this litigation both parties have assumed that dismissal would be required if § 14 (b) is construed to mandate individual resort to state remedies in deferral States. In Part II of its opinion, which I join, the Court so construes the statute. However, in Part III of its opinion, the Court volunteers some detailed legal advice about the effect of a suggested course of conduct that respondent may now pursue and then orders that his suit be held in abeyance while he follows that advice.

Regardless of whether the Court’s advice is accurate — a question that should not be answered until some litigant has raised it — I am unable to join Part III. If respondent should decide at this point to resort to state remedies, and if his complaint there is found to be time barred, and if he should then seek relief in federal court, the question addressed in Part III of the Court’s opinion — whether § 14 (b) requires resort to state remedies “within time limits specified by the State”— would then be presented. But that question is not presented now, and I decline to join or to render an advisory opinion on its merits. I would simply order that this suit be dismissed in accordance with “the mandate of § 14 (b).” Ante, at 765.

      The Court of Appeals initially reversed the District Court but on rehearing withdrew its opinion and substituted an opinion affirming the District Court.

       See Hearings on S. 830 et al. before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., 1st Sess., 102 (1967) (testimony of Mr. Biemiller); id., at 228 (testimony of Mr. Conway).

       Even respondent concedes that under § 706 (e) resort to appropriate state proceedings is mandatory, not optional. See Brief for Respondent 18.

       ADEA grievants may file with the State before or after they file with the Secretary of Labor.

       Respondent concedes that the amendments themselves “are not relevant to the questions raised in this case.” Brief for Respondent 3 n. 1.

       This rule, of course, governs only claims for individual relief, such as the present case. Nothing in our decision in anywise disturbs the rule of Albemarle Paper Co. v. Moody, 422 U. S. 405, 414 n. 8 (1975), concerning the rights of unnamed parties in plaintiff class actions.

       A number of cases have reached a similar result upon slightly different theories. See, e. g., Skoglund v. Singer Co., 403 F. Supp. 797 (NH 1975) (timely state complaint not required unless there has been a deliberate bypass of state procedure); Bertsch v. Ford Motor Co., 415 F. Supp. 619 (ED Mich. 1976) (timely state complaint not required if state limitations period significantly shorter than 180 days). See also Vaughn v. Chrysler Corp., 382 F. Supp. 143 (ED Mich. 1974) (timely state complaint not required if claimant detrimentally relied upon mistaken official advice). Two cases have reached contrary results. See Graham v. Chrysler Corp., 15 FEP Cases 876 (ED Mich. 1976); McGhee v. Ford Motor Co., 15 FEP Cases 869 (ED Mich. 1976).

       This is made clear by Senator Humphrey’s remarks to the Senate concerning the limits of federal deference under § 706 (c) :
      “[W]e recognized the absolute necessity of providing the Federal Government with authority to act in instances where States and localities did not choose to exercise these opportunities to solve the problem of civil rights in a voluntary and localized manner. The basic rights protected by [Title VII] are rights which accrue to citizens of the United States; the Federal Government has the clear obligation to see that these rights are fully protected. In instances where States are unable or unwilling to provide this protection, the Federal Government must have the authority to act.” 110 Cong. Rec. 12725 (1964).

       Title 29 U. S. C. § 626 (d) provides:
      “No civil action may be commenced by any individual under this section until the individual has given the Secretary not less than sixty days’ notice of an intent to file such action. Such notice shall be filed—
      “(1) within one hundred and eighty days after the alleged unlawful practice occurred, or
      “(2) in a case to which section 633 (b) of this title applies, within three hundred days after the alleged unlawful practice occurred or within thirty days after receipt by the individual of notice of termination of proceedings under State law, whichever is earlier.
      “Upon receiving a notice of intent to sue, the Secretary shall promptly notify all persons named therein as prospective defendants in the action and shall promptly seek to eliminate any afieged unlawful practice by informal methods of conciliation, conference, and persuasion.”

       Title 29 U. S. C. § 626 (e) provides:
      “Sections 255 and 259 of this title shall apply to actions under this chapter.”
      Title 29 U. S. C. § 255 provides in relevant part:
      “Any action commenced on or after May 14, 1947 . . .
      “(a) if the cause of action accrues on or after May 14, 1947 — may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.”

       Moreover, even the danger that state remedies will be inadvertently bypassed by otherwise proper ADEA plaintiffs will soon become nonexistent. After July 1, 1979, the EEOC will administer the ADEA. See Reorg. Plan No. 1 of 1978, 3 CFR 321 (1979). Discrimination charges will have to be filed with the EEOC within time limits specified by federal law, and the EEOC already has a regular procedure whereby discrimination complaints are automatically referred to appropriate agencies as soon as they are received. See Love v. Pullman Co., 404 U. S. 522 (1972); 29 CFR § 1601.13 (1978). Thus, the deference to state agencies required by § 14 (b) will soon become automatic.
      In any event, even if the risk of bypass of state agencies were real, which it is not, States could readily avoid the possibility by extending their limitations periods to 180 days and by tolling their statutes of limitations upon the filing of a timely charge with the Department of Labor. See Davis v. Valley Distributing Co. Cf. Burnett v. New York Central R. Co., 380 U. S. 424 (1965).

       Whether Iowa may toll its statute of limitations from the date that respondent contacted the Department of Labor is a question of Iowa law not for our decision. See Iowa Civil Rights Comm’n v. Massey-Ferguson, Inc., 207 N. W. 2d 5, 8 (Iowa 1973).

       Suspension of proceedings is preferable to dismissal with leave to refile. Respondent’s timely complaint has already satisfied the requirements of 29 U. S. C. § 626 (e). “To require a second ‘filing’ by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality. Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.” Love v. Pullman Co., supra, at 526-527 (charge may be held in suspended animation during deferral period). For this reason, suspension pending deferral is the preferred practice in the federal courts. See Crosslin v. Mountain States Tel. & Tel. Co., 400 U. S. 1004 (1971) (judgment of dismissal for want of jurisdiction arising from failure to defer vacated; case remanded for consideration of stay pending deferral); Gabriele v. Chrysler Corp., 573 F. 2d 949, 956 n. 18 (CA6 1978); Oubichon v. North American Rockwell Corp., 482 F. 2d 569, 571 (CA9 1973); Parker v. General Telephone Co. of the Northwest, Inc., 476 F. 2d 595, 596 (CA9 1973); Mitchell v. Mid-Continent Spring Co. of Ky., 466 F. 2d 24, 26-27 (CA6 1972), cert. denied, 410 U. S. 928 (1973); Motorola, Inc. v. EEOC, 460 F. 2d 1245, 1246 (CA9 1972); Bertrand v. Orkin Exterminating Co., Inc., 419 F. Supp. 1123, 1130 (ND Ill. 1976); Winsey v. Pace College, 394 F. Supp. 1324, 1329 (SDNY 1975).

      “[A]n individual who has been discriminated against because of age is free to proceed either under state law or under federal law. The choice is up to the individual.” S. Rep. No. 95-493, p. 7 (1978), adopted in Joint Explanatory Statement of the Committee of Conference, EL R. Conf. Rep. No. 95-950, pp. 7, 12 (1978).


author: Mr. Justice Brennan

text:
    UNITED STATES v. NAFTALIN
    No. 78-561.
    Argued March 26, 1979
    Decided May 21, 1979

      BreNNAN, J., delivered the opinion of the Court, in which all other Members joined except Powell, J., who took no part in the consideration or decision of the case.

      Stephen M. Shapiro argued the cause for the United States. With him on the briefs were Solicitor General McCree, Assist

      ant Attorney General Heymann, Robert J. Erickson, and David Ferber.

      Joe A. Walters argued the cause and filed a brief for respondent.
   Mr. Justice Brennan

delivered the opinion of the Court.

The question presented in this case is whether § 17 (a)(1) of the Securities Act of 1933, 48 Stat. 84, as amended, 68 Stat. 686, 15 U. S. C. § 77q (a)(1), prohibits frauds against brokers as well as investors. We hold that it does.

Respondent, Neil Naftalin, was the president of a registered broker-dealer firm and a professional investor. Between July and August 1969, Naftalin engaged in a “short selling” scheme. He selected stocks that, in his judgment, had peaked in price and were entering into a period of market decline. He then placed with five brokers orders to sell shares of these stocks, although he did not own the shares he purported to sell. Gambling that the price of the securities would decline substantially before he was required to deliver them, respondent planned to make offsetting purchases through other brokers at lower prices. He intended to take as profit the difference between the price at which he sold and the price at which he covered. Respondent was aware, however, that had the brokers who executed his sell orders known that he did not own the securities, they either would not have accepted the orders, or would have required a margin deposit. He therefore falsely represented that he owned the shares he directed them to sell.

Unfortunately for respondent, the market prices of the securities he “sold” did not fall prior to the delivery date, but instead rose sharply. He was unable to make covering purchases, and never delivered the promised securities. Consequently, the five brokers were unable to deliver the stock which they had “sold” to investors, and were forced to borrow stock to keep their delivery promises. Then, in order to return the borrowed stock, the brokers had to purchase replacement shares on the open market at the now higher prices, a process known as “buying in.” While the investors to whom the stocks were sold were thereby shielded from direct injury, the five brokers suffered substantial financial losses.

The United States District Court for the District of Minnesota found respondent guilty on eight counts of employing “a scheme and artifice to defraud” in the sale of securities, in violation of § 17 (a)(1). App. 24-25; App. to Pet. for Cert. 15a-20a. Although the Court of Appeals for the Eighth Circuit found the evidence sufficient to establish that respondent had committed fraud, 579 F. 2d 444, 447 (1978), it nonetheless vacated his convictions. Finding that the purpose of the Securities Act “was to protect investors from fraudulent practices in the sale of securities,” ibid., the court held that “the government must prove some impact of the scheme on an investor,” id., at 448. Since respondent’s fraud injured only brokers and not investors, the Court of Appeals concluded that Naftalin did not violate § 17 (a)(1). We granted certiorari, 439 U. S. 1045 (1978), and now reverse.

I

Section 17 (a) of the Securities Act of 1933, subsection (1) of which respondent was found to have violated, states:

“It shall be unlawful for any person in the offer or sale of any securities by the use of any means or instruments of transportation or communication in interstate commerce or by the use of the mails, directly or indirectly—
“(1) to employ any device, scheme, or artifice to defraud, or
“(2) to obtain money or property by means of any untrue statement of a material fact or any omission to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or
“(3) to engage in any transaction, practice, or course of business which operates or would operate as a fraud or deceit upon the purchaser.”

In this Court, Naftalin does not dispute that, by falsely representing that he owned the stock he sold, he defrauded the brokers who executed his sales. Brief for Respondent 7-8, 11; Tr. of Oral Arg. 17-18. He contends, however, that the Court of Appeals correctly held that § 17 (a) (1) applies solely to frauds directed against investors, and not to those against brokers.

Nothing on the face of the statute supports this reading of it. Subsection (1) makes it unlawful for “any person in the offer or sale of any securities . . . directly or indirectly . . . to employ any device, scheme, or artifice to defraud . . . .” (Emphasis added.) The statutory language does not require that the victim of the fraud be an investor — only that the fraud occur “in” an offer or sale.

An offer and sale clearly occurred here. Respondent placed sell orders with the brokers; the brokers, acting as agents, executed the orders; and the results were contracts of sale, which are within the statutory definition, 15 U. S. C. § 77b (3). Moreover, the fraud occurred “in” the “offer” and “sale.” The statutory terms, which Congress expressly intended to define broadly, see H. R. Rep. No. 85, 73d Cong., 1st Sess., 11 (1933); 1 Loss 512 n. 163; cf. SEC v. National Securities, Inc., 393 U. S. 453, 467 n. 8 (1969), are expansive enough to encompass the entire selling process, including the seller/agent transaction. Section 2 (3) of the Act, 48 Stat. 74, as amended, 68 Stat. 683, 15 U. S. C. § 77b (3), states:

“The term ‘sale' . . . shall include every contract of sale or disposition of a security or interest in a security, for value. The term . . . 'offer’ shall include every attempt or offer to dispose of ... a security or interest in a security, for value.” (Emphasis added.)

This language does not require that the fraud occur in any particular phase of the selling transaction. At the very least, an order to a broker to sell securities is certainly an “attempt to dispose” of them.

Thus, nothing in subsection (1) of § 17 (a) creatés a requirement that injury occur to a purchaser. Respondent nonetheless urges that the phrase, “upon the purchaser,” found only in subsection (3) of § 17 (a), should be read into all three subsections. The short answer is that Congress did not write the statute that way. Indeed, the fact that it did not provides strong affirmative evidence that while impact upon a purchaser may be relevant to prosecutions brought under § 17 (a)(3), it is not required for those brought under §17 (a)(1). As is indicated by the use of an infinitive to introduce each of the three subsections, and the use of the conjunction “or” at the end of the first two, each subsection proscribes a distinct category of misconduct. Each succeeding prohibition is meant to cover additional kinds of illegalities — not to narrow the reach of the prior sections. See United States v. Birrell, 266 F. Supp. 539, 542-543 (SDNY 1967). There is, therefore, “no warrant for narrowing alternative provisions which the legislature has adopted with the purpose of affording added safeguards.” United States v. Gilliland, 312 U. S. 86, 93 (1941).

II

The court below placed primary reliance for its restrictive interpretation of § 17 (a)(1) upon what it perceived to be Congress’ purpose in passing the Securities Act. Noting that both this Court and Congress have emphasized the importance of the statute in protecting investors from fraudulent practices in the sale of securities, see Ernst & Ernst v. Hochfelder, 425 U. S. 185, 195 (1976), the Court of Appeals concluded that “against this backdrop ... we are constrained to hold that the government must prove some impact of the scheme on an investor.” 579 F. 2d, at 448.

But neither this Court nor Congress has ever suggested that investor protection was the sole purpose of the Securities Act. As we have noted heretofore, the Act “emerged as part of the aftermath of the market crash in 1929.” Ernst & Ernst v. Hochfelder, supra, at 194. See generally 1 Loss 120-121. Indeed, Congress’ primary contemplation was that regulation of the securities markets might help set the economy on the road to recovery. See 77 Cong. Rec. 2925 (1933) (remarks of Rep. Kelly); id., at 2935 (remarks of Rep. Chapman); id., at 3232 (remarks of Sen. Norbeck); H. R. Rep. No. 85,73d Cong., 1st Sess., 2 (1933). Prevention of frauds against investors was surely a key part of that program, but so was the effort “to achieve a high standard of business ethics . . . in every facet of the securities industry.” SEC v. Capital Gains Bureau, 375 U. S. 180, 186-187 (1963) (emphasis added). See Ernst & Ernst v. Hochfelder, supra, at 195; United States v. Brown, 555 F. 2d 336, 338-339 (CA2 1977).

This conclusion is amply supported by reference to the legislative record. The breadth of Congress’ purpose is most clearly demonstrated by the Senate Report:

“The purpose of this bill is to protect the investing public and honest business. . . . The aim is to prevent further exploitation of the public by the sale of unsound, fraudulent, and worthless securities through misrepresentation ; to place adequate and true information before the investor; to protect honest enterprise, seeking capital by honest presentation, against the competition afforded by dishonest securities offered to the public through crooked promotion; to restore the confidence of the prospective investor in his ability to select sound securities; to bring into productive channels of industry and development capital which has grown timid to the point of hoarding; and to aid in providing employment and restoring buying and consuming power.” S. Rep. No. 47, 73d Cong., 1st Sess., 1 (1933).

While investor protection was a constant preoccupation of the legislators, the record is also replete with references to the desire to protect ethical businessmen. See 77 Cong. Rec. 2925 (1933) (remarks of Rep. Kelly); id., at 2983 (remarks of Sen. Fletcher); id., at 3232 (remarks of Sen. Norbeck); S. Rep. No. 47, 73d Cong., 1st Ses., 1 (1933). As Representative Chapman stated, “[t]his legislation is designed to protect not only the investing public but at the same time to protect honest corporate business.” 77 Cong. Rec. 2935 (1933).. Respondent’s assertion that Congress’ concern was limited to investors is thus manifestly inconsistent with the legislative history.

Moreover, the welfare of investors and financial intermediaries are inextricably linked — frauds perpetrated upon either business or investors can redound to the detriment of the other and to the economy as a whole. See generally Securities- and Exchange Commission, Report of the Special Study of the Securities Markets, H. R. Doc. No. 95, 88th Cong., 1st Sess., pt. 1, pp. 9-11 (1963). Fraudulent short sales are no exception. Although investors suffered no immediate financial injury in this case because the brokers covered the sales by borrowing and then “buying in,” the indirect impact upon investors may be substantial. “Buying in” is in actuality only a form of insurance for investors and, like all forms of insurance, has its own costs. Losses suffered by brokers increase their cost of doing business, and in the long run investors pay at least part of this cost through higher brokerage fees. In addition, unchecked short-sale frauds against brokers would create a level of market uncertainty that could only work to the detriment of both investors and the market as a whole. Finally, while the investors here were shielded from direct injury, that may not always be the case. Had the brokers been insolvent or unable to borrow, the investors might well have failed to receive their promised shares. Entitled to receive shares at one price under the purchase agreement, they would have had to buy substitute shares in the market at a higher price. Placing brokers outside the aegis of § 17 (a) would create a loophole in the statute that Congress simply did not intend to create.

Ill

Although the question was not directly presented in the Government’s petition for certiorari, respondent asserts a final, independent argument in support of the judgment below. That assertion is that the Securities Act of 1933 was “preoccupied with” the regulation of initial public offerings of securities, and that Congress waited until the Securities Exchange Act of 1934 to regulate abuses in the trading of securities in the “aftermarket.” As Naftalin’s fraud did not involve a new offering, he contends that § 17 (a) is inapplicable, and that he should have been prosecuted for violations of either the specific short-selling regulations promulgated under the 1934 Act, or for violations of the general antifraud proscriptions of the 1934 Act’s § 10b, 15 U. S. C. § 78j (b), and the SEC’s Rule 10b-5, 17 CFR § 240.10b-5 (1978). Tr. of Oral Arg. 17-18; Brief for Respondent 16-17, 22-24.

Although it is true that the 1933 Act was primarily concerned with the regulation of new offerings, respondent's argument fails because the antifraud prohibition of § 17 (a) was meant as a major departure from that limitation. Unlike much of the rest of the Act, it was intended to cover any fraudulent scheme in an offer or sale of securities, whether in the course of an initial distribution or in the course of ordinary market trading. 1 Loss 130; Douglas & Bates, The Federal Securities Act of 1933, 43 Yale L. J. 171, 182 (1933); Y. Brudney & M. Chirelstein, Corporate Finance 740 (1972). This is made abundantly clear both by the statutory language, which makes no distinctions between the two kinds of transactions, and by the Senate Report, which stated:

“The act subjects the sale of old or outstanding securities to the same criminal penalties and injunctive authority for fraud, deception, or misrepresentation as in the case of new issues put out after the approval of the act. In other words, fraud or deception in the sale of securities may be prosecuted regardless of whether the security is old or new, or whether or not it is of the class of securities exempted under sections 11 or 12.” S. Rep. No. 47, 73d Cong., 1st Sess., 4 (1933).

Accord, H. R. Rep. No. 85, 73d Cong., 1st Sess., 6 (1933). Respondent is undoubtedly correct that the two Acts prohibit some of the same conduct. See 3 Loss 1428. But “[t]he fact that there may well be some overlap is neither unusual nor unfortunate.” SEC v. National Securities, Inc., 393 U. S., at 468. See Edwards v. United States, 312 U. S. 473, 484 (1941). It certainly does not absolve Naftalin of guilt for the transactions which violated the statute under which he was convicted.

IV

This is a criminal case, and we have long held that “ ‘ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity,' ” United States v. Culbert, 435 U. S. 371, 379 (1978), quoting Rewis v. United States, 401 U. S. 808, 812 (1971), and that a defendant may not “‘be subjected to a penalty unless the words of the statute plainly impose it/ ” United States v. Campos-Serrano, 404 U. S. 293, 297 (1971), quoting Keppel v. Tiffin Savings Bank, 197 U. S. 356, 362 (1905). In this case, however, the words of the statute do “plainly impose it.” Here, “Congress has conveyed its purpose clearly, and we decline to manufacture ambiguity where none exists,” United States v. Culbert, supra, at 379. The decision of the Court of Appeals for the Eighth Circuit is

Reversed.

Me. Justice Powell took no part in the consideration or decision of this case.

      A broker may mark an order to sell a customer’s shares “long” if he “is informed that the seller owns the security ordered to be sold and, as soon as possible without undue inconvenience or expense, will deliver the security . . . .” 17 CFR § 240.10a-l (d) (1978).

       If a broker executes a sell order marked “long” and the seller fails to deliver the securities when due, under certain circumstances the broker must “buy in” substitute securities. See 17 CFR §240.10a-2 (a) (1978). See also 2 L. Loss, Securities Regulation 1233-1235 (2d ed. 1961) (hereinafter Loss).

       Willful violations of § 17 (a) are made subject to criminal sanctions by § 24 of the Securities Act, 15 U. S. C. § 77x.

       Respondent contends that the requirement that the fraud be “in” the offer or sale connotes a narrower range of activities than does the phrase “in connection with,” which is found in § 10 (b) of the Securities Exchange Act of 1934, 16 U. S. C. § 78j (b). First, we are not necessarily persuaded that “in” is narrower than “in connection with.” Both Congress, see H. R. Rep. No. 85, 73d Cong., 1st Sess., 6 (1933), and this Court, see Superintendent of Insurance v. Bankers Life & Cas. Co., 404 U. S. 6, 10 (1971), have on occasion used the terms interchangeably. But even if “in” were meant to connote a narrower group of transactions than “in connection with,” there is nothing to indicate that “in” is narrower in the sense insisted upon by Naftalin.

       Moreover, while matters like “punctuation [are] not decisive of the construction of a statute,” Costanzo v. Tillinghast, 287 U. S. 341, 344 (1932), where they reaffirm conclusions drawn from the words themselves they provide useful confirmation. Here the use of separate numbers to introduce each subsection, and the fact that the phrase “upon the purchaser” was set off solely as part of subsection (3), confirm our conclusion that “[n]othing on the face of the statute suggests a congressional intent to limit its coverage,” United States v. Colbert, 435 U. S. 371, 373 (1978), to frauds against purchasers.

       This case involves a criminal prosecution. The decision in Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723 (1975), which limited to purchasers or sellers the class of plaintiffs who may have private implied causes of action under Securities and Exchange Commission Rule 10b-5, is therefore inapplicable. See SEC v. National Securities, Inc., 393 U. S. 453, 467 n. 9 (1969).

       It bears repeating that respondent was not convicted for short selling, but for fraudulent short selling.

       Although this potential for immediate financial injury to investors has been reduced by the “buy in” regulations, see 17 CFR §240.10a-2 (1978), as well as by the provisions of the Securities Investor Protection Act of 1970, see 15 U. S. C. § 78aaa et seq., the potential for indirect injury, described supra, still remains. Moreover, these legal requirements did not exist when the 1933 Act was passed, and hence at that time the kind of fraud practiced by respondent might well have caused investors direct financial injury. The subsequent enactments do not serve to restrict the original scope of § 17 (a).

      See 15 U. S. C. §§ 78g, 78j (a); 12 CFR §§ 220.3, 220.4 (c)(ii), 220.8 (d), 224.2 (1978); 17 CFR § 240.10a-l (1978).


author: Me. Justice Stevens

text:
    UNITED STATES v. TIMMRECK
    No. 78-744.
    Argued April 16, 1979
    Decided May 21, 1979
    Stevens, J., delivered the opinion for a unanimous Court.

      Kenneth S. Getter argued the cause for the United States. With him on the brief were Solicitor General McCree and Assistant Attorney General Heymann.

      Kenneth M. Mogill argued the cause and filed a brief for respondent.
   Me. Justice Stevens

delivered the opinion of the Court.

The question presented is whether a conviction based on a guilty plea is subject to collateral attack whenever it can be shown that Rule 11 of the Federal Rules of Criminal Procedure was violated when the plea was accepted.

In this case, acting on the advice of counsel, respondent pleaded guilty to a charge of conspiracy to distribute various controlled substances. As required by Rule ll, the District Judge formally addressed respondent and determined that there was a factual basis for the plea and that he was acting voluntarily. The judge explained that respondent could receive a sentence of 15 years’ imprisonment and a $25,000 fine, but the judge failed to describe the mandatory special parole term of at least 3 years required by the applicable statute.

The District Judge accepted the guilty plea and, at a later proceeding, sentenced respondent to 10 years’ imprisonment plus a special parole term of 5 years, and a fine of $5,000. Pursuant to a plea bargain with the prosecutor, other charges against respondent were dismissed. No objection to the sentence was raised at the time, and respondent did not take an appeal from his conviction.

About two years later, respondent moved to vacate the sentence pursuant to 28 U. S. C. § 2255 on the ground that the trial judge had violated Rule 11 by accepting his plea without informing him of the mandatory special parole term. The District Court held an evidentiary hearing, at which respondent’s lawyer testified that it was his normal practice to inform his clients about the mandatory special parole term but that he could not recall whether or not he had given such advice to this defendant. Following this hearing, the District Court denied the motion. The court recognized that a violation of Rule 11 had occurred, but concluded that it did not justify collateral relief under § 2255 because respondent had not suffered any prejudice inasmuch as he had received a sentence within the maximum described to him at the time the guilty plea was accepted.

The Court of Appeals reversed. 577 F. 2d 372. It held that a violation of Rule 11 will support a collateral attack on a conviction based on a guilty plea even when there is neither constitutional error nor any showing of special prejudice to the defendant. Because of the importance of that holding to the administration of justice, we granted certiorari, 439 U. S. 1065, and now reverse.

In Hill v. United States, 368 U. S. 424, the Court was presented with the question whether a collateral attack under § 2255 could be predicated on a violation of Fed. Rule Crim. Proc. 32 (a), which gives the defendant the right to make a statement on his own behalf before he is sentenced. The Court rejected the claim, stating:

“The failure of a trial court to ask a defendant represented by an attorney whether he has anything to say before sentence is imposed is not of itself an error of the character or magnitude cognizable under a writ of habeas corpus. It is an error which is neither jurisdictional nor constitutional. It is not a fundamental defect which inherently results in a complete miscarriage of justice, nor an omission inconsistent with the rudimentary demands of fair procedure. It does not present ‘exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.’ Bowen v. Johnston, 306 U. S. 19, 27. See Escoe v. Zerbst, 295 U. S. 490; Johnson v. Zerbst, 304 U. S. 458; Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101.” 368 U. S., at 428.

The reasoning in Hill is equally applicable to a formal violation of Rule 11. Such a violation is neither constitutional nor jurisdictional: the 1966 amendment to Rule 11 obviously could not amend the Constitution or limit the jurisdiction of the federal courts. Nor can any claim reasonably be made that the error here resulted in a “complete miscarriage of justice” or in a proceeding “inconsistent with the rudimentary demands of fair procedure.” Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the Rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U. S. 459, but was not. And there is no basis here for allowing collateral attack “to do service for an appeal.” Sunal v. Large, 332 U. S. 174, 178.

Indeed, if anything, this case may be a stronger one for foreclosing collateral relief than the Hill case. For the concern with finality served by the limitation on collateral attack has special force with respect to convictions based on guilty pleas.

“Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.” United States v. Smith, 440 F. 2d 521, 528-529 (Stevens, J., dissenting).

As in Hill, we find it unnecessary to consider whether § 2255 relief would be available if a violation of Rule 11 occurred in the context of other aggravating circumstances. “We decide only that such collateral relief is not available when all that is shown is a failure to comply with the formal requirements of the Rule.” 368 U. S., at 429.

The judgment of the Court of Appeals is

Reversed.

       At the time of respondent’s guilty plea, Rule 11 provided:
      “A defendant may plead not guilty, guilty or, with the consent of the court, nolo contendere. The court may refuse to accept a plea of guilty, and shall not accept such plea or a plea of nolo contendere without first addressing the defendant personally and determining that the plea is made voluntarily with understanding of the nature of the charge and the consequences of the plea.”
      Rule 11 now provides in pertinent part:
      “Advice to Defendant.
      “Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:
      “(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; and
      “(2) if the defendant is not represented by an attorney, that he has the right to be represented by an attorney at every stage of the proceeding against him and, if necessary, one will be appointed to represent him; and
      “(3) that he has the right to plead not guilty or to persist in that plea if it has already been made, and he has the right to be tried by a jury and at that trial has the right to the assistance of counsel, the right to confront and cross-examine witnesses against him, and the right not to be compelled to incriminate himself; and
      “(4) that if he pleads guilty or nolo contendere there will not be a further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to a trial; and
      “(5) that if he pleads guilty or nolo contendere, the court may ask him questions about the offense to which he has pleaded, and if he answers these questions under oath, on the record, and in the presence of counsel, his answers may later be used against him in a prosecution for perjury or false statement.”

       21 U. S. C. §841 (b)(1)(A).

       Title 28 U. S. C. § 2255 provides in pertinent part:
      “A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.”

       See Stone v. Powell, 428 U. S. 465, 491, and n. 31; Henderson v. Kibbe, 431 U. S. 145, 154 n. 13.


author: Per Curiam. Mr. Justice Stewart,

text:
    KENTUCKY v. WHORTON
    No. 78-749.
    Argued April 16, 1979
    Decided May 21, 1979

      Patrick B. Kimberlin III, Assistant Attorney General of Kentucky, argued the cause for petitioner. With him on the briefs was Robert F. Stephens, Attorney General.

      Terrence R. Fitzgerald argued the cause for respondent. With him on the brief was Paul G. Tobin.

   Per Curiam.

In Taylor v. Kentucky, 436 U. S. 478 (1978), this Court reversed a criminal conviction resulting from a trial in which the judge had refused to give a requested jury instruction on the presumption of innocence. Relying on its understanding of that decision, the Kentucky Supreme Court in the present case held that such an instruction is constitutionally required in all criminal trials, and that the failure of a trial judge to give it cannot be harmless error. 570 S. W. 2d 627. We granted certiorari to consider whether the Kentucky Supreme Court correctly interpreted our holding in Taylor. 439 U. S. 1067.

I

The respondent was charged in three separate indictments with the commission of several armed robberies. At trial, numerous eyewitnesses identified the respondent as the perpetrator. Weapons, stolen money, and other incriminating evidence found in the respondent’s automobile were introduced in evidence. The respondent did not take the stand in his own defense. The only evidence on his behalf was given by his wife and sister who offered alibi testimony concerning his whereabouts during the time of the commission of one of the robberies.

The respondent’s counsel requested that the jury be instructed on the presumption of innocence. This instruction was refused by the trial judge. An instruction was given, however, to the effect that the jury could return a verdict of guilty only if they found beyond a reasonable doubt that the respondent had committed the acts charged in the indictment with the requisite criminal intent.

The jury found the respondent guilty of 10 counts of first-degree robbery, 2 counts of first-degree wanton endangerment, and 2 counts of first-degree attempted robbery. The respondent was sentenced to consecutive terms of imprisonment totaling 230 years.

On appeal, the respondent argued that he had been denied due process of law in violation of the Fourteenth Amendment by reason of the trial judge’s refusal to give an instruction on the presumption of innocence. A divided Kentucky Supreme Court agreed, interpreting this Court’s decision in Taylor “to mean that when an instruction on the presumption of innocence is asked for and denied there is a reversible error.” 570 S. W. 2d, at 633.

Two justices filed separate dissenting opinions. In their view, the Taylor case should be understood as dealing with the factual situation there presented, and not as establishing a constitutional rule that failure to instruct the jury on the presumption of innocence requires automatic reversal of a conviction. Since these justices concluded that the respondent received a fair trial, they would have affirmed the convictions.

II

While this Court in Taylor reversed a conviction resulting from a trial in which the judge had refused to give a requested instruction on the presumption of innocence, the Court did not there fashion a new rule of constitutional law requiring that such an instruction be given in every criminal case. Rather, the Court’s opinion focused on the failure to give the instruction as it related to the overall fairness of the trial considered in its entirety.

The Court observed, for example, that the trial judge’s instructions were “Spartan,” 436 U. S., at 486, that the prosecutor improperly referred to the indictment and otherwise made remarks of dubious propriety, id., at 486-488, and that the evidence against the defendant was weak. Id., at 488. “[T]he combination of the skeletal instructions, the possible harmful inferences from the references to the indictment, and the repeated suggestions that petitioner’s status as a defendant tended to establish his guilt created a genuine danger that the jury would convict petitioner on the basis of those extraneous considerations, rather than on the evidence introduced at trial.” Id., at 487-488.

It was under these circumstances that the Court held that the failure of the trial court to instruct the jury on the presumption of innocence denied the defendant due process of law. Indeed, the Court’s holding was expressly limited to the facts: “We hold that on the facts of this case the trial court’s refusal to give petitioner’s requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment.” Id., at 490 (emphasis added). This explicitly limited holding, and the Court’s detailed discussion of the circumstances of the defendant’s trial, belie any intention to create a rule that an instruction on the presumption of innocence is constitutionally required in every case.

In short, the failure to give a requested instruction on the presumption of innocence does not in and of itself violate the Constitution. Under Taylor, such a failure must be evaluated in light of the totality of the circumstances— including all the instructions to the jury, the arguments of counsel, whether the weight of the evidence was overwhelming, and other relevant factors — to determine whether the defendant received a constitutionally fair trial.

The Kentucky Supreme Court thus erred in interpreting Taylor to hold that the Due Process Clause of the Fourteenth Amendment absolutely requires that an instruction on the presumption of innocence must be given in every criminal case. The court’s inquiry should have been directed to a determination of whether the failure to give such an instruction in the present case deprived the respondent of due process of law in light of the totality of the circumstances.

Accordingly, the judgment is reversed, and the case is remanded to the Supreme Court of Kentucky for further proceedings not inconsistent with this opinion.

It is so ordered.

Mr. Justice Stewart,

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

dissenting.

No principle is more firmly established in our system of criminal justice than the presumption of innocence that is accorded to the defendant in every criminal trial. In In re Winship, 397 U. S. 358, the Court held that the Due Process Clause of the Fourteenth Amendment requires proof beyond a reasonable doubt of a defendant’s guilt. I believe that the Due Process Clause of the Fourteenth Amendment equally requires the presumption that a defendant is innocent until he has been proved guilty.

Almost 85 years ago, the Court said: “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” Coffin v. United States, 156 U. S. 432, 453. Only three years ago the Court reaffirmed that the presumption of innocence “is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U. S. 501, 503. See also Cool v. United States, 409 U. S. 100, 104. And a fair trial, after all, is what the Due Process Clause of the Fourteenth Amendment above all else guarantees.

While an instruction on the presumption of innocence in one sense only serves to remind the jury that the prosecutor has the burden of proof beyond a reasonable doubt, it also has a separate and distinct function. Quite apart from considerations of the burden of proof, the presumption of innocence “cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced.” 9 J. Wigmore, Evidence § 2511, p. 407 (3d ed. 1940). And because every defendant, regardless of the totality of the circumstances, is entitled to have his guilt determined only on the basis of the evidence properly introduced against him at trial, I would hold that an instruction on the presumption of innocence is constitutionally required in every case where a timely request has been made.

There may be cases where the failure to give such an instruction could not have affected the outcome of the trial. If that conclusion can be drawn beyond a reasonable doubt, failure to give the instruction would be harmless error. Cf. Chapman v. California, 386 U. S. 18; Harrington v. California, 395 U. S. 250. Since the Kentucky Supreme Court did not consider this possibility, I would vacate its judgment and remand the case to that court, but only for consideration of whether the failure to give the instruction in the circumstances presented here was harmless error.

      The respondent’s lawyer made a timely request that the following instruction be given:
      “The law presumes an accused to be innocent of crime. He begins the trial with a clean slate, with no evidence against him. And the law permits nothing but legal evidence presented before the jury to be considered in support of any charge against the accused. So the presumption of innocence alone is sufficient to acquit an accused unless the jury members are satisfied beyond a reasonable doubt of the accused’s guilt from all the evidence in the case.”

       The wanton endangerment convictions were reversed on state-law grounds not relevant here.

       At least one Member of the Court understood our opinion in Taylor v. Kentucky, 436 U. S. 478 to hold precisely that. See id., at 490 (Bren-nan, J., concurring).

       On remand, the Kentucky court would of course be free to hold as a matter of state law that it would not consider the question of harmless error in this context. See Watson v. Commonwealth, 579 S. W. 2d 103 (Ky.).


author: Per Curiam.

text:
    CONNOR et al. v. COLEMAN, JUDGE, UNITED STATES COURT OF APPEALS, et al.
    No. 78-1013.
    Decided May 21, 1979
   Per Curiam.

On March 26, 1979, we granted leave to petitioners to file a petition for a writ of mandamus to require the United States District Court for the Southern District of Mississippi to adopt a plan for the reapportionment of the Mississippi Legislature. 440 U. S. 612. The order granting leave recited that we continued for 30 days our consideration of the petition.

The Clerk of the District Court has now formally advised the Clerk of this Court that on April 13, 1979, the District Court entered a final judgment specifying a court-ordered plan for the reapportionment of the legislature and for elections to be conducted in the coming summer. The District Court Clerk has also stated that all parties to the litigation have announced in open court that there will be no appeal. The petition for a writ of mandamus is therefore denied.

So ordered.

Mr. Justice Powell took no part in the decision on this petition.


text:
    April 16, 1979

    No. 78-1073.
    Hennessy et ux. v. Hennessy et al.

      Mr. Justice Powell took no part in the consideration or decision of cases in which orders hereinafter reported were announced on this date.

   C. A. 7th. Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    No. 78-1071.
    Hughes v. Hughes.
   Appeal from Sup. Ct. Ala. Judgment vacated and case remanded for further consideration in light of Orr v. Orr, 440 U. S. 268 (1979).


text:
    No. 78-1451.
    McCoy et al. v. Califano, Secretary of Health, Education, and Welfare, et al.
   Appeal from C. A. 7th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-1611.
    Hercoform, Inc. v. Chicago Title Insurance Co. et al.
   C. A. 1st Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of United States v. Kimbell Foods, Inc., 440 U. S. 715 (1979).


text:
    No. 78-5995.
    Hunt v. Missouri.
   Ct. App. Mo., Kansas City Dist. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Duren v. Mis souri, 439 U. S. 357 (1979).


text:
    No. 78-6077.
    Jones v. Missouri.
   Ct. App. Mo., Kansas City Dist. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Duren v. Missouri, 439 U. S. 357 (1979).


text:
    No. A-835.
    United Steelworkers of America, AFL-CIO-CLC v. Solien, Regional Director, National Labor Relations Board, et al.
   C. A. 8th Cir. Application for stay, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. 80,
    Orig.
    Colorado v. New Mexico et al.
   It is ordered that the Honorable Ewing I. Kerr, Senior Judge for the United States District Court for the District of Wyoming, be appointed Special Master in this case with authority to fix the time and conditions for the filing of additional pleadings and to direct subsequent proceedings, and with authority to summon witnesses, issue subpoenas, and take such evidence as may be introduced and such as he may deem necessary to call for. The Master is directed to submit such reports as he may deem appropriate.

The Master shall be allowed his actual expenses. The allowances to him, the compensation paid to his technical, stenographic, and clerical assistants, the cost of printing his report, and all other proper expenses shall be charged against and be borne by the parties in such proportion as the Court may hereafter direct.

It is further ordered that if the position of Special Master in this case becomes vacant during a recess of the Court, The Chief Justice shall have authority to make a new designation which shall have the same effect as if originally made by the Court. [For earlier order herein, see 439 U. S. 975.]


text:
    No. 78-599.
    No. 78-1006.
    Secretary of the Navy et al. v. Huff et al. Brown, Secretary of Defense, et al. v. Glines.
   C. A. D. C. Cir. [Certiorari granted, 440 U. S. 957]; and

C. A. 9th Cir. .[Certiorari granted, 440 U. S. 957.] Motion of the Solicitor General to consolidate these cases for briefing and oral argument denied.


text:
    No. 78-605.
    United States et al. v. Rutherford et al.
   C. A. 10th Cir. [Certiorari granted, 439 U. S. 1127.] Motion of Save the United States Movement, Improving Public Health and Physical Fitness of the United States Citizens, for leave to participate in oral argument as amicus curiae denied.


text:
    No. 78-610.
    Columbus Board of Education et al. v. Penick et al.
   C. A. 6th Cir. [Certiorari granted, 439 U. S. 1066.] Motion of Cleveland Board of Education for leave to file a brief as amicus curiae denied. Motion of the Solicitor General for divided argument as amicus curiae granted.


text:
    No. 78-627.
    Dayton Board of Education et al. v. Brinkman et al.
   C. A. 6th Cir. [Certiorari granted, 439 U. S. 1066.] Motion of Cleveland Board of Education for leave to file a brief as amicus curiae denied. Motion of the Solicitor General for divided argument as amicus curiae granted.


text:
    No. 78-776.
    United States v. Batchelder.
   C. A. 7th Cir. [Certiorari granted, 439 U. S. 1066.] Motion of the Solicitor General to permit Andrew J. Levander, Esquire, to present oral argument pro hac vice granted.


text:
    No. 78-1309.
    Pioche Mines Consolidated, Inc. v. Fidelity Philadelphia Trust Co.
   Motion for leave to file petition for writ of certiorari and/or mandamus denied.


text:
    No. 78-6229.
    Johnson v. United States District Court for the Eastern District of Michigan.
   Motion for leave to file petition for writ of mandamus and/or prohibition denied.


text:
    No. 78-6281.
    Green v. Clark, U. S. District Judge, et al.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 78-756.
    Ohio v. Roberts.
   Sup. Ct. Ohio. Certiorari granted.


text:
    No. 78-1318.
    O’Bannon, Secretary of Public Welfare of Pennsylvania v. Town Court Nursing Center et al.
   C. A. 3d Cir. Certiorari granted.


text:
    No. 78-1323.
    Norfolk & Western Railway Co. v. Liepelt, Administratrix.
   App. Ct. Ill., 1st Dist. Certiorari granted.


text:
    No. 78-1088.
    No. 78-1217.
    Kissinger v. Reporters Committee for Freedom of the Press et al.; and Reporters Committee for Freedom of the Press et al. v. Kissinger.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 78-5471.
    Whalen v. United States; and Pynes v. United States.
   Ct. App. D. C. Motion of Thomas W. Whalen for leave to proceed in forma pauperis granted. Cer-tiorari granted in Whalen v. United States.


text:
    No. 77-1835.
    No. 77-1845.
    National Association of Regulatory Utility Commissioners v. Brookhaven Cable TV, Inc., et al.; and Kelly et al. v. Brookhaven Cable TV, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1033.
    Southland Royalty Co. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 78-1052.
    Bundy et al. v. Rudd et al.,
   Judges. Cir. Ct. Fla., Leon County. Certiorari denied.


text:
    No. 78-1080.
    Loveless v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 78-1093.
    Bundy et al. v. Rudd, Judge, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1128.
    Podell v. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certio-rari denied.


text:
    No. 78-1129.
    Brasco v. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Cer-tiorari denied.


text:
    No. 78-1152.
    Vergara et al. v. Chairman, Merit Systems Protection Board, et al.
   C. A. 7th. Cir. Certiorari denied.


text:
    No. 78-1164.
    Holland v. Seaboard Coast Line Railroad Co.
   Dist. Ct. App. Fla., 1st Dist. Certiorari denied.


text:
    No. 78-1167.
    Gibson v. Davis, Director, Bureau of Alcohol, Tobacco and Firearms, et al.
   C. A. 6th Cir. Cer-tiorari denied.


text:
    No. 78-1174.
    Taxation with Representation v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-1190.
    Walker v. Newgent et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1192.
    Ginsburg, Feldman & Bress v. Department of Energy.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-1200.
    Santos et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1204.
    Honicker v. Nuclear Regulatory Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-1210.
    Moenckmeier et ux. v. United States et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1229.
    A-OK Motor Lines, Inc. (Kaufman, Trustee in Bankruptcy) v. North Alabama Express, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1230.
    Morelock et al. v. NCR Corp.
   C. A. 6th

Cir. Certiorari denied.


text:
    No. 78-1240.
    Johnson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1264.
    Henderson et al. v. Fort Worth Independent School District et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1266.
    Mathias v. Maryland.
   Ct. App. Md. Certiorari denied.


text:
    No. 78-1274.
    Thompson v. Alabama.
   Ct. Grim. App. Ala. Certiorari denied.


text:
    No. 78-1276.
    Kapp v. National Football League et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1277.
    Golding v. City Council of the City of Richmond et al.
   Sup. Ct. Ya. Certiorari denied.


text:
    No. 78-1281.
    Iowa Beef Processors, Inc. v. Smith.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-1283.
    Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers, Express & Station Employees, et al. v. Kansas City Terminal Railway Co.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-1289.
    Godwin v. Maryland.
   Ct. App. Md. Cer-tiorari denied.


text:
    No. 78-1291.
    Van Gordon v. Oregon State Board of Dental Examiners et al.
   Ct. App. Ore. Certiorari denied.


text:
    No. 78-1293.
    Stewart v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 78-1297.
    Wine v. Indiana.
   Ct. App. Ind. Certiorari denied.


text:
    No. 78-1301.
    Hickel et al. v. Thomas, Lt. Governor of Alaska, et al.
   Sup. Ct. Alaska. Certiorari denied.


text:
    No. 78-1304.
    American Seating Co. v. National Seating Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-1305.
    Blea v. New Mexico.
   Ct. App. N. M. Certiorari denied.


text:
    No. 78-1312.
    Smith v. County of York.
   Pa. Commw. Ct. Certiorari denied.


text:
    No. 78-1315.
    No. 78-1317.
    Motown Record Corp. v. Solinger; and A&M Records, Inc., et al v. Solinger.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1321.
    A. T. Cross Co. v. Quill Co., Inc.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-1322.
    Pittway Corp. v. Burke et al.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 78-1355.
    Harco Products, Inc., dba DFC Co. v. Rex Chainbelt, Inc.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-1378.
    Vaicekauskas v. Immigration and Naturalization Service.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-1416.
    Carter v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-1421.
    Carter v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-1426.
    Pacelli v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-1432.
    Thompson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-5916.
    No. 78-5917.
    Veal v. Illinois; and Knights v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 78-5922.
    Riggsbee v. Romero, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 78-5967.
    McLain v. Morris, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-5985.
    Herrera v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 78-6000.
    Zepeda v. Stahl, Sheriff.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6005.
    Washington v. Cupp, Penitentiary Superintendent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6011.
    Snead v. United States.
   C. A. 3d Cir.

Certiorari denied.


text:
    No. 78-6030.
    Moore v. Virginia.
   Sup. Ct. Va. Certio-rari denied.


text:
    No. 78-6068.
    Landrum v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6069.
    Cassasa v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6071.
    Roberts v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6087.
    Paul v. United States.
   C. A. 5th' Cir. Certiorari denied.


text:
    No. 78-6093.
    Mason v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6107.
    Cole v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6118.
    Younge v. United States.
   C. A. 7th Cir.

Certiorari denied.


text:
    No. 78-6120.
    Tempesta v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6126.
    Benning v. Taulborg Brothers Builders.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6139.
    Hawkins v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 78-6141.
    Lyon v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6173.
    Robertson v. New York.
   App. Term, Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 78-6182.
    Smith v. Smith.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 78-6206.
    Mundy v. Director, Department of Corrections, Tazewell, Virginia.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6211.
    Reynolds v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6212.
    Leslie v. Massachusetts.
   Sup. Jud. Ct. Mass. Certiorari denied.


text:
    No. 78-6213.
    Kessler v. New York et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6228.
    Kumar v. Ohio.
   Ct. App. Ohio, Marion County. Certiorari denied.


text:
    No. 78-6230.
    Monroe v. Brown.
   C. A. 1st Cir. Certio-rari denied.


text:
    No. 78-6231.
    Weddington v. Georgia.
   Ct. App. Ga. Certiorari denied.


text:
    No. 78-6233.
    Solberg v. Henderson, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 78-6241.
    Lyon v. California.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 78-6242.
    Green v. Crane.
   Sup. Ct. Miss. Certio-rari denied.


text:
    No. 78-6252.
    Sawaya v. Bernalillo County Assessor.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 78-6254.
    Banks v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 78-6259.
    Hampel v. California.
   Ct. App. Cal., 5th App. Dist. Certiorari denied.


text:
    No. 78-6267.
    Milligan v. Pennsylvania.
   Super. Ct. Pa. Certiorari denied.


text:
    No. 78-6268.
    Sallie v. North Carolina et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 78-6269.
    Stuart v. Gamwell.
   Ct. App. Ga. Cer-tiorari denied.


text:
    No. 78-6273.
    Williams v. Illinois.
   App. Ct. Ill., 4th Dist. Certiorari denied.


text:
    No. 78-6274.
    Sanchez v. Dallas Morning News et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6278.
    Green v. Wyrick, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6279.
    Creque v. Illinois.
   Sup. Ct. Ill. Certio-rari denied.


text:
    No. 78-6285.
    Harrison v. Indiana.
   Sup. Ct. Ind. Cer-tiorari denied.


text:
    No. 78-6289.
    Czornonoh v. United States Secret Service; and Czornonoh v. Stallard et al.
   C. A. 9th Cir.

Certiorari denied.


text:
    No. 78-6339.
    Goodloe v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6347.
    Cacy v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6348.
    Gordon v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 78-6355.
    Alonzo v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6364.
    Smith v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 78-6370.
    Martin v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6373.
    Davis v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 78-6377.
    Jackson v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-6389.
    Powell v. Farrell, Controller of the City and County of San Francisco, California, et al.
   C. A. 9th Cir. Certiorari before judgment denied.


text:
    No. 78-6390.
    Lefton v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 78-6399.
    Greene v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 78-6402.
    Frick v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 78-1018.
    Figgins et al. v. Hudspeth.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 78-1099.
    Marquez, Correctional Superintendent v. Bittaker.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 78-1103.
    Pennsylvania v. Ritter.
   Sup. Ct. Pa. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 78-1098.
    Herman v. United States.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari.


text:
    No. 78-1290.
    Goldstein v. City of Norfolk.
   Sup. Ct. Va. Certiorari denied.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice Marshall would grant certiorari and reverse the conviction.


author: Mr. Justice Marshall,

text:
    No. 78-5873.
    Irving v. Mississippi.
   Sup. Ct. Miss. Cer-tiorari denied.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

I adhere to my view that the death penalty is unconstitutional under all circumstances. Furman v. Georgia, 408 U. S. 238, 314 (1972) (Marshall, J., concurring); Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting). I would therefore grant certiorari and vacate the death sentence on this basis alone. However, because the Mississippi Supreme Court's ruling on an issue of joint representation appears inconsistent with this Court’s prior decisions, I believe certiorari should be granted on that ground as well.

Petitioner John Irving was indicted in Pontotoc County, Miss., on July 7, 1976, for capital murder. Both petitioner and a separately indicted accomplice, Keith Givhan, retained the same counsel. On November 8, 1976, the day before petitioner’s trial, his attorney filed a motion to withdraw because of a conflict of interest. Counsel did, however, express his willingness to continue representing Givhan, whose trial was scheduled for the following week. After a hearing, the Circuit Court denied the motion and petitioner’s case proceeded to trial. A jury found petitioner guilty as charged and sentenced him to death. The Mississippi Supreme Court affirmed. 361 So. 2d. 1360 (1978).

In the affidavit supporting his motion to withdraw, petitioner’s counsel identified several potential sources of conflict. Each defendant had given an inculpatory statement implicating the other. Also, during the period of pretrial incarceration, each had developed inconsistent theories of defense. Finally, plea negotiations with the local district and county attorneys had raised the possibility of a bargain in one case but not the other. Under those circumstances, counsel averred that he could not, based on his “reading of Glasser [v. United States, 315 U. S. 60 (1942),] advise either defendant ... as to what posture [he] should assume.” Record 53.

In Glasser, this Court stated: “[T]he 'assistance of counsel’ guaranteed by the Sixth Amendment contemplates that such assistance be untrammeled and unimpaired by a court order requiring that one lawyer shall simultaneously represent conflicting interests.” 315 U. S., at 70. Just last Term, in Holloway v. Arkansas, 435 U. S. 475 (1978), we reaffirmed that principle and noted:

“[S]ince the decision in Glasser, most courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. . . . An ‘attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.’ State v. Davis, [110 Ariz. 29, 31, 514 P. 2d 1025, 1027 (1973)]. . . . [Attorneys are officers of the court, and ‘ “when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.” ’ State v. Brazile, [226 La. 254, 266, 75 So. 2d 856, 860-861 (1954)]. (Emphasis deleted.) We find these considerations persuasive.” Id., at 485-486 (footnotes omitted).

Particularly where, as here, a defendant is on trial for his life, an attorney’s judgment as to potential conflicts should carry special force.

Notwithstanding Holloway’s clear directive and the nature of the sentence imposed, the Mississippi Supreme Court sustained the refusal to permit counsel’s withdrawal. In so ruling, the court relied on petitioner and Givhan’s failure to testify, and on the absence of any clear indication that counsel “would have defended any differently or would have approached the defense of the case on another basis had he not been representing Givhan.” 361 So. 2d, at 1365. Because the record did not “reflect any prejudice or harm resulting to [petitioner] on account of the alleged conflict of interest,” ibid., the court below found no constitutional infirmity.

Yet it was precisely this form of analysis that we rejected in Glasser and again in Holloway. Glasser unequivocally held that “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” 315 U. S., at 76. After quoting this passage with approval, the Holloway Court made clear that where joint representation occurs over a defendant's express objection, “prejudice is presumed regardless of whether it [is] independently shown.” 435 U. S., at 489. For the danger presented by a conflict of interest arises not simply from what an advocate does, which may be evident from the record, but from what he “finds himself compelled to refrain from doing,” which may not be so readily apparent. Id., at 490. To assess the effect of incompatible interests on all of an attorney's strategies at trial and in plea negotiations would, as we concluded in Holloway, be “virtually impossible.” Id., at 491.

Here, however, the Mississippi Supreme Court professed itself able to accomplish what Holloway explicitly recognized as beyond the competence of a reviewing tribunal. On this record, I cannot share the court's confidence that counsel would have approached the defense no differently had he represented only petitioner. More to the point, I believe that such speculation is inappropriate under Holloway and unsupportable in a capital case. Surely where a defendant’s life is at stake, he is entitled to assistance from an attorney whose loyalty is beyond question.

I therefore dissent from the denial of certiorari.


text:
    No. 78-6091.
    No. 78-6253.
    Washington v. Mississippi; Finney v. Georgia.
   Sup. Ct. Miss.; and

Sup. Ct. Ga. Certio-rari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


text:
    No. 77-952.
    No. 77-1163.
    No. 77-1186.
    No. 77-1337.
    No. 78-733.
    No. 78-784.
    No. 78-788.
    No. 78-791.
    No. 78-809.
    No. 78-819.
    No. 78-871.
    No. 78-970.
    No. 78-1083.
    No. 78-5648.
    No. 78-5744.
    No. 78-5810.
    No. 78-5890.
    No. 78-5929.
    Group Life & Health Insurance Co. et al. v. Royal Drug Co., Inc., et al., Friedman et al. v. Rogers et al., Texas Optometric Assn., Inc. v. Rogers et al., Nevada et al. v. Hall et al., Poe v. Mitchell, Moreno v. United States, Esquire, Inc. v. Ringer, Register of Copyrights, Greenblatt v. United States, Walton v. Small Business Administration, Frommhagen v. United States, Shannon v. Waterhouse et al., Executors, Rowlett et al. v. United States, Kornit v. Board of Education of Plainview-Old Bethpage School District, Plainview, New York, Finnegan v. Washington, Levy v. United States, Turner et al. v. Jones et al., McFerran v. Enlarged City School District of Troy, New York, Lorentzen v. Boston College,
   440 U. S. 205;

440 U. S. i;

440 U. S. 1;

440 U. S. 410;

440 U. S. 908;

440 U. S. 908;

440 U. S. 908;

440 U. S. 909;

440 U. S. 901;

440 U. S. 909;

440 U. S. 911;

440 U. S. 935;

440 U. S. 936;

440 U. S. 919;

440 U. S. 920;

440 U. S. 962;

440 U. S. 923; and

440 U. S. 924. Petitions for rehearing denied.


text:
    No. 78-5956.
    No. 78-5984.
    No. 78-6008.
    No. 78-6032.
    No. 78-6096.
    No. 78-6103.
    Brown v. United States, Isaacs et ux. v. Board of Trustees of Temple University et al., Shaw v. Caryl, Oronoz v. United States District Court for the District of Puerto Rico et al., Welch v. Celebrezze, Chief Justice, Supreme Court of Ohio, Miller v. Hunt et al.,
   440 U. S. 948;

440 U. S. 926;

440 U. S. 938;

440 U. S. 944;

440 U. S. 956; and

440 U. S. 938. Petitions for rehearing denied.


text:
    No. 78-268.
    No. 78-361.
    No. 78-410.
    No. 78-5499.
    Gillespie et al. v. Schwartz et al., Boston Hospital for Women v. Schwartz et al., Lee-Hy Paving Corp. et al. v. O’Connor, Administratrix, Williams v. United States,
   439 U. S.1034;

439 U. S. 1034;

439 U. S. 1034; and

439 U. S. 969. Motions for leave to file petitions for rehearing denied.


text:
    April 23, 1979
    No. 78-1374.
    Martin v. Board of County Commissioners of Lee County, Florida, et al.
   Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question.

Mr. Justice Brennan would note probable jurisdiction and set case for oral argument.


text:
    No. 78-6060.
    Elam v. Virginia.
   Appeal from Sup. Ct. Va. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certio-rari, certiorari denied.


text:
    No. 78-97.
    Sears, Roebuck & Co. v. Dahm et al.
   C. A. 7th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Chrysler Corp. v. Brown, ante, p. 281.


text:
    No. 78-79.
    General Dynamics Corp. v. Marshall, Secretary of Labor, et al.
   C. A. 8th Cir. Certiorari granted,

judgment vacated, and case remanded for further consideration in light of Chrysler Corp. v. Brown, ante, p. 281.


text:
    No.-.
    White v. Office of Personnel Management et al.
   C. A. D. C. Cir. Motion for leave to dispense with printing petition denied. See Snider v. All State Administrators, Inc., 414 U. S. 685 (1974).


text:
    No. A-844 (78-1475).
    Pence v. Brown, Secretary of Defense, et al.
   C. A. 6th Cir. Application for stay, addressed to Mr. Justice Brennan and referred to the Court, denied.


text:
    No. A-867.
    Callahan v. United States.
   C. A. 5th Cir. Applications for bond, recall of mandate, transfer of sealed envelopes, and disclosure of certain materials, addressed to Mr. Justice Marshall and referred to the Court, denied.


text:
    No. D-146.
    In re Disbarment of Teitelbaum.
   Disbarment entered. [For earlier order herein, see 439 U. S. 975.]


text:
    No. D-159.
    In re Disbarment of Ratcliff.
   Disbarment entered. [For earlier order herein, see 440 U. S. 903.]


text:
    No. D-162.
    In re Disbarment of Turner.
   It is ordered that John Joseph Turner, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-163.
    In re Disbarment of Reedy.
   It is ordered that James Phillip Reedy, of Chicago, Ill., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-164.
    In re Disbarment of Macurdy.
   It is ordered that Thomas E. Macurdy, of Natrona Heights, Pa., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.