author: Per Curiam. Mr. Justice Stevens,

text:
    GREAT WESTERN SUGAR CO. v. NELSON
    No. 78-1060.
    Decided May 29, 1979
   Per Curiam.

Respondent Nelson sued in the United States District Court for the District of Colorado to compel arbitration of his discharge by petitioner Great Western Sugar Co. The District Court held that the presumption of arbitrability consistently applied by the Court of Appeals for the Tenth Circuit required that the dispute be submitted to arbitration. Before petitioner’s appeal from the District Court’s order could be decided on the merits, the arbitration proceedings had been completed, and respondent filed a suggestion of mootness with the Court of Appeals. The Court of Appeals, in an order and opinion admirable for its conciseness, if not for its fidelity to our case law, said:

“This matter comes on for consideration of the appel-lee’s suggestion of mootness and motion to vacate judgment of the District Court and to remand the captioned cause with instructions to dismiss. The appellant filed a brief in response arguing that the appeal be allowed to continue but if not the judgment of the trial court should be reversed and the cause be remanded with directions to dismiss.
“Upon consideration whereof, the order of the Court is as follows:
“1. The appeal is dismissed on the ground of mootness.
“2. The judgment of the trial court is allowed to stand.” App. to Pet. for Cert. A5.

In Duke Power Co. v. Greenwood County, 299 U. S. 259, 267 (1936), this Court said:

“Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss.” (Emphasis supplied.)

The course of action prescribed in Duke Power has been followed in countless cases in this Court. See, e. g., Preiser v. Newkirk, 422 U. S. 395 (1975); Parker v. Ellis, 362 U. S. 574 (1960); United States v. Munsingwear, Inc., 340 U. S. 36 (1950).

Here neither the law nor the facts are in dispute. The Court of Appeals has proceeded on the assumption that the case is moot and has dismissed the appeal for that reason. It has nonetheless stated that the judgment of the District Court shall remain in effect, a statement totally at odds with the holding of Duke Power. The reasons for not allowing the District Court judgment to remain in effect when the fact of mootness had been properly called to the attention of the Court of Appeals were fully stated in United States v. Munsingwear, Inc., supra, at 39-41, and need not be restated here. The Court of Appeals’ disposition of this case may-have been the result of a desire to show approval of the reasoning of the District Court in directing arbitration, but that motive cannot be allowed to excuse its failure to follow the teaching of Duke Power Co., supra.

Because the fact of mootness is clear, and indeed is relied upon by the Court of Appeals as its reason for dismissing petitioner’s appeal, and because the law as laid down by this Court in Duke Power Co., supra, and United States v. Munsingwear, Inc., supra, is equally clear, the petition for certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the Court of Appeals with directions to vacate the District Court’s judgment and to remand the case for dismissal of respondent’s complaint.

It is so ordered.

Mr. Justice Stevens,

dissenting.

If we have time to grant certiorari for the sole purpose of correcting a highly technical and totally harmless error, one might reasonably (but incorrectly) infer that we have more than enough time to dispatch our more important business.

I would deny the petition for a writ of certiorari.

         United States v. Munsingwear, Inc., is perhaps the leading case on the proper disposition of cases that become moot on appeal. There the Court reiterated that “[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” 340 U. S., at 39.


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Rehnquist,

license: Public Domain

text:
    GREEN v. GEORGIA
    No. 78-5944.
    Decided May 29, 1979
   Per Curiam.

Petitioner and Carzell Moore were indicted together for the rape and murder of Teresa Carol Allen. Moore was tried separately, was convicted of both crimes, and has been sentenced to death. See Moore v. State, 240 Ga. 807, 243 S. E. 2d 1, cert. denied, 439 U. S. 903 (1978). Petitioner subsequently was convicted of murder, and also received a capital sentence. The Supreme Court of Georgia upheld the conviction and sentence, 242 Ga. 261, 249 S. E. 2d 1 (1978), and petitioner has sought review of so much of the judgment as affirmed the capital sentence. We grant the motion for leave to proceed in forma pauperis and the petition for certiorari and vacate the sentence.

The evidence at trial tended to show that petitioner and Moore abducted Allen from the store where she was working alone and, acting either in concert or separately, raped and murdered her. After the jury determined that petitioner was guilty of murder, a second trial was held to decide whether capital punishment would be imposed. See Ga. Code § 27-2503 (1978). At this second proceeding, petitioner sought to prove he was not present when Allen was killed and had not participated in her death. He attempted to introduce the testimony of Thomas Pasby, who had testified for the State at Moore’s trial. According to Pasby, Moore had confided to him that he had killed Allen, shooting her twice after ordering petitioner to run an errand. The trial court refused to allow introduction of this evidence, ruling that Pasby’s testimony constituted hearsay that was inadmissible under Ga. Code § 38-301 (1978). The State then argued to the jury that in the absence of direct evidence as to the circumstances of the crime, it could infer that petitioner participated directly in Allen’s murder from the fact that more than one bullet was fired into her body.

Regardless of whether the proffered testimony comes within Georgia’s hearsay rule, under the facts of this case its exclusion constituted a violation of the Due Process Clause of the Fourteenth Amendment. The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see Lockett v. Ohio, 438 U. S. 586, 604-605 (1978) (plurality opinion); id., at 613-616 (opinion of Blackmun, J.), and substantial reasons existed to assume its reliability. Moore made his statement spontaneously to a close friend. The evidence corroborating the confession was ample, and indeed sufficient to procure a conviction of Moore and a capital sentence. The statement was' against interest, and there was no reason to believe that Moore had any ulterior motive in making it. Perhaps most important, the State considered the testimony sufficiently reliable to use it against Moore, and to base a sentence of death upon it. In these unique circumstances, “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Chambers v. Mississippi, 410 U. S. 284, 302 (1973). Because the exclusion of Pasby’s testimony denied petitioner a fair trial on the issue of punishment, the sentence is vacated and the case is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Mr. Justice Brennan and Mr. Justice Marshall, adhering to their view 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), would vacate the death sentence without remanding for further proceedings.

Mr. Justice Rehnquist,

dissenting.

The Court today takes another step toward embalming the law of evidence in the Due Process Clause of the Fourteenth Amendment to the United States Constitution. I think it impossible to find any justification in the Constitution for today’s ruling, and take comfort only from the fact that since this is a capital case, it is perhaps an example of the maxim that “hard cases make bad law.”

The Georgia trial court refused to allow in evidence certain testimony at petitioner’s sentencing trial on the ground that it constituted inadmissible hearsay under Ga. Code § 38-301 (1978). This Court does not, and could not, dispute the propriety of that ruling. Instead, it marshals a number of ad hoc reasons why Georgia should adopt a code of evidence that would allow this particular testimony to be admitted, and concludes that “[i]n these unique circumstances, ‘the hearsay rule may not be applied mechanistically to defeat the ends of justice.’ ” Ante, at 97.

Nothing in the United States Constitution gives this Court any authority to supersede a State’s code of evidence because its application in a particular situation would defeat what this Court conceives to be “the ends of justice.” The Court does not disagree that the testimony at issue is hearsay or that it fails to come within any of the exceptions to the hearsay rule provided by Georgia’s rules of evidence. The Court obviously is troubled by the fact that the same testimony was admissible at the separate trial of petitioner’s codefendant at the behest of the State. But this fact by no means demonstrates that the Georgia courts have not evenhandedly applied their code of evidence, with its various hearsay exceptions, so as to deny petitioner a fair trial. No practicing lawyer can have failed to note that Georgia’s evidentiary rules, like those of every other State and of the United States, are such that certain items of evidence may be introduced by one party, but not by another. This is a fact of trial life, embodied throughout the hearsay rule and its exceptions. This being the case, the United States Constitution must be strained to or beyond the breaking point to conclude that all capital defendants who are unable to introduce all of the evidence which they seek to admit are denied a fair trial. I therefore dissent from the vacation of petitioner’s sentence.

       Georgia recognizes an exception, to the hearsay rule for declarations against pecuniary interest, but not for declarations against penal interest. See 242 Ga. 261, 269-272, 249 S. E. 2d 1, 8-9 (1978), quoting Little v. Stynchcombe, 227 Ga. 311, 180 S. E. 2d 541 (1971).

       The District Attorney stated to the jury:
      “We couldn’t possibly bring any evidence other than the circumstantial evidence and the direct evidence that we had pointing to who did it, and I think it’s especially significant for you to remember what Dr. Dawson said in this case. When the first shot, in his medical opinion, he stated that Miss Allen had positive blood pressure when both shots were fired but I don’t know whether Carzell Moore fired the first shot and handed the gun to Roosevelt Green and he fired the second shot or whether it was vice versa or whether Roosevelt Green had the gun and fired the shot or Carzell Moore had the gun and fired the first shot or the second, but I think it can be reasonably stated that you Ladies and Gentlemen can believe that each one of them fired the shots so that they would be as equally involved and one did not exceed the other’s part in the commission of this crime.” Pet. for Cert. 10.

       A confession to a crime is not considered hearsay under Georgia law when admitted against a declarant. Ga. Code §38-414 (1978); Green v. State, 115 Ga. App. 685, 155 S. E. 2d 655 (1967).

       See Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 592-593 (1978).


author: Mr. Justice Marshall

text:
    DUNN v. UNITED STATES
    No. 77-6949.
    Argued March 28, 1979
    Decided June 4, 1979

      Marshall, 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.

      Daniel J. Sears, by appointment of the Court, 439 U. S. 1064, argued the cause and filed briefs for petitioner.

      Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, William C. Bryson, Sidney M. Glaser, and Kathleen A. Felton.

   Mr. Justice Marshall

delivered the opinion of the Court.

Title IV of the Organized Crime Control Act of 1970, 18 U. S. C. § 1623 (1976 ed., Supp. I), prohibits false declarations made under oath “in any proceeding before or ancillary to any court or grand jury of the United States.” This case turns on the scope of the term ancillary proceeding in § 1623, a phrase not defined in that provision or elsewhere in the Criminal Code. More specifically, we must determine whether an interview in a private attorney’s office at which a sworn statement is given constitutes a proceeding ancillary to a court or grand jury within the meaning of the statute.

I

On June 16, 1976, petitioner Robert Dunn testified before a federal grand jury under a grant of immunity pursuant to 18 U. S. C. § 6002. The grand jury was investigating illicit drug activity at the Colorado State Penitentiary where petitioner had been incarcerated. Dunn’s testimony implicated a fellow inmate, Phillip Musgrave, in various drug-related offenses. Following petitioner’s appearance, the grand jury indicted Musgrave for conspiracy to manufacture and distribute methamphetamine.

Several months later, on September 30, 1976, Dunn arrived without counsel in the office of Musgrave’s attorney, Michael Canges. In the presence of Canges and a notary public, petitioner made an oral statement under oath in which he recanted his grand jury testimony implicating Musgrave. Canges subsequently moved to dismiss the indictment against Musgrave, alleging that it was based on perjured testimony. In support of this motion, the attorney submitted a transcript of Dunn’s September 30 statement.

The District Court held an evidentiary hearing on Mus-grave’s motion to dismiss on October 21, 1976. At that hearing, petitioner, who was then represented by counsel, adopted the statement he had given in Canges’ office and testified that only a small part of what he had told the grand jury was in fact true. App. 46. As a result of petitioner’s testimony, the Government reduced the charges against Mus-grave to misdemeanor possession of methamphetamine. See 21 U. S. C. § 844.

Petitioner was subsequently indicted on five counts of making false declarations in violation of 18 U. S. C. § 1623 (1976 ed., Supp. I). The indictment charged that Dunn’s testimony before the grand jury was inconsistent with statements made “on September 30, 1976, while under oath as a witness in a proceeding ancillary to United States v. Musgrave, . . . to the degree that one of said declarations was false . . . App. 5-6. In response to petitioner’s motion for a bill of particulars, the Government indicated that it would rely on the “inconsistent declarations” method of proof authorized by § 1623 (c). Under that subsection, the Government must establish the materiality and inconsistency of declarations made in proceedings before or ancillary to a court or grand jury, but need not prove which of the declarations is false. See n. 1, supra.

At trial, the Government introduced over objection pertinent parts of Dunn’s grand jury testimony, his testimony at the October 21 evidentiary hearing, and his sworn statement to Musgrave’s attorney. After the Government rested its case, petitioner renewed his objections in a motion for acquittal. He contended that the September 30 statement was not made in a proceeding ancillary to a federal court or grand jury as required by § 1623 (c). In addition, Dunn argued that use of his grand jury testimony to prove an inconsistent declaration would contravene the Government’s promise of immunity, in violatioxl of 18 U. S. C. § 6002 and the Fifth Amendment. The court denied the motion and submitted the case to the jury. Petitioner was convicted on three of the five counts of the indictment and sentenced to concurrent 5-year terms on each count.

The Court of Appeals for the Tenth Circuit affirmed. 577 F. 2d 119 (1978). Although it agreed with petitioner that the interview in Canges’ office was not an ancillary proceeding under § 1623, the court determined that the October 21 hearing at which petitioner adopted his September statement was a proceeding ancillary to a grand jury investigation. 577 F. 2d, at 123. Acknowledging that the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals construed this discrepancy as a nonprejudicial variance between the indictment and proof at trial. Id., at 123-124. The court also upheld the use of petitioner’s immunized grand jury testimony to prove a § 1623 violation. In so ruling, the court stated that immunized testimony generally may not be used to establish an inconsistent declaration without a prior independent showing that the testimony is false. But, in the court’s view, petitioner’s unequivocal concession at the October hearing that he had testified falsely before the grand jury justified the Government’s reliance on that testimony. 577 F. 2d, at 125-126.

We granted certiorari, 439 U. S. 1045 (1978). Because we disagree with the Court of Appeals’ ultimate disposition of the ancillary-proceeding issue, we reverse without reaching the question whether petitioner’s immunized testimony was admissible to prove a violation of § 1623.

II

A variance arises when the evidence adduced at trial establishes facts different from those alleged in an indictment. Berger v. United States, 295 U. S. 78 (1935). In the instant case, since the indictment specified the September 30 interview rather than the October 21 hearing as the ancillary proceeding, the Court of Appeals identified a variance between the pleadings and the Government’s proof at trial. However, reasoning that petitioner’s October 21 testimony was “inextricably related” to his September 30 declaration, the court concluded that petitioner could have anticipated that the prosecution would introduce the October testimony. 577 F. 2d, at 123. The court therefore determined that the variance was not fatal to the Government’s case. See Kotteakos v. United States, 328 U. S. 750, 757 (1946).

In our view, it is unnecessary to inquire, as did the Court of Appeals, whether petitioner was prejudiced by a variance between what was alleged in the indictment and what was proved at trial. For we discern no such variance. The indictment charged inconsistency between petitioner’s statements in the September 30 interview and his grand jury testimony. That was also the theory on which the case was tried and submitted to the jury. Indeed, the October 21 testimony was introduced by the Government only in rebuttal to dispel any inference that petitioner’s grand jury testimony was true. See Tr. 82-83. But while there was no variance between the indictment and proof at trial, there was a discrepancy between the basis on which the jury rendered its verdict and that on which the Court of Appeals sustained petitioner’s conviction. Whereas the jury was instructed to rest its decision on Dunn’s September statement, the Tenth Circuit predicated its affirmance on petitioner’s October testimony. The Government concedes that this ruling was erroneous. Brief for United States 15, 35; Tr. of Oral Arg. 25. We agree.

To uphold a conviction on a charge that was neither alleged in an indictment nor presented to a jury at trial offends the most basic notions of due process. New constitutional principles are more firmly established than a defendant’s right to be heard on the specific charges of which he is accused. See Eaton v. Tulsa, 415 U. S. 697, 698-699 (1974) (per curiam); Garner v. Louisiana, 368 U. S. 157, 163-164 (1961); Cole v. Arkansas, 333 U. S. 196, 201 (1948); De Jonge v. Oregon, 299 U. S. 353, 362 (1937). There is, to be sure, no glaring distinction between the Government’s theory at trial and the Tenth Circuit’s analysis on appeal. The jury might well have reached the same verdict had the prosecution built its case on petitioner’s October 21 testimony adopting his September 30 statement rather than on the September statement itself. But the offense was not so defined, and appellate courts are not free to revise the basis on which a defendant is convicted simply because the same result would likely obtain on retrial. As we recognized in Cole v. Arkansas, supra, at 201, “[i]t is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.” Thus, unless the September 30 interview constituted an ancillary proceeding, petitioner’s conviction cannot stand.

Ill

Congress enacted § 1623 as part of the 1970 Organized Crime Control Act, Pub. L. 91-452, 84 Stat. 922, to facilitate perjury prosecutions and thereby enhance the reliability of testimony before federal courts and grand juries. S. Rep. No. 91-617, pp. 58-59 (1969). Invoking this broad congressional purpose, the Government argues for an expansive construction of the term ancillary proceeding. Under the Government’s analysis, false swearing in an affidavit poses the same threat to the factfinding process as false testimony in open court. Brief for United States 21. Thus, the Government contends that any statements made under oath for submission to a court, whether given in an attorney’s office or in a local bar and grill, fall within the ambit of § 1623. See Tr. of Oral Arg. 31. In our judgment, the term “proceeding,” which carries a somewhat more formal connotation, suggests that Congress had a narrower end in view when enacting § 1623. And the legislative history of the Organized Crime Contol Act confirms that conclusion.

Section 1623 was a response to perceived evidentiary problems in demonstrating perjury under the existing federal statute, 18 U. S. C. § 1621. As Congress noted, the strict common-law requirements for establishing falsity which had been engrafted onto the federal perjury statute often made prosecution for false statements exceptionally difficult. By relieving the Government of the burden of proving which of two or more inconsistent declarations was false, see § 1623 (c), Congress sought to afford “greater assurance that testimony obtained in grand jury and court proceedings will aid the cause of truth.” S. Rep. No. 91-617, p. 59 (1969). But nothing in the language or legislative history of the statute suggests that Congress contemplated a relaxation of the Government’s burden of proof with respect to all inconsistent statements given under oath. Had Congress intended such a result, it presumably would have drafted § 1623 to encompass all sworn declarations irrespective of whether they were made in pro-eeedings before or ancillary to a court or grand jury. Particularly since Congress was aware that statements under oath were embraced by the federal perjury statute without regard to where they were given, the choice of less comprehensive language in § 1623 does not appear inadvertent.

That Congress intended § 1623 to sweep less broadly than the perjury statute is also apparent from the origin of the term ancillary proceeding. As initially introduced in Congress, the Organized Crime Control Act contained a version of § 1623 which encompassed only inconsistent statements made in any “trial, hearing, or proceeding before any court or grand jury.” When asked to comment on the proposed statute, the Department of Justice noted that the scope of the inconsistent declarations provision was “not as inclusive” as the perjury statute. See Hearings on S. 30 et al. before the Subcommittee on Criminal Laws and Procedures of the Senate Committee on the Judiciary, 91st Cong., 1st Sess., 372 (1969) (hereinafter S. 30 Hearings). Significantly, the Justice Department did not suggest that the provision be made coextensive with the perjury statute. However, in subsequent Senate Subcommittee hearings, Assistant Attorney General Wilson indicated, without elaboration, that the Department advocated “including [under § 1623] other testimony, preliminary testimony and other statements, in the perjury field.” Id., at 389.

In response to that general suggestion, Senator McClellan, on behalf of the Subcommittee, sent a letter to the Assistant Attorney General clarifying its purpose:

“You also read Title IV not to cover 'pre-trial depositions, affidavits and certifications.’ This was not our intent in drafting the bill. We had hoped that it would be applicable, for example, to situations such as [the] kind of pre-trial depositions that the enforcement of S. 1861 would present. If we included in the statute the phrase 'proceedings before or ancillary to any court or grand jury,’ do you feel that this intent would be adequately expressed?” Id., at 409.

The Government attaches great significance to the qualification, “for example,” in Senator McClellan’s letter. Because pretrial depositions were mentioned as illustrative, the Government interprets the term ancillary proceeding to subsume affidavits and certifications as well. But that is not the inference the Department of Justice originally drew from the Senator’s letter. Responding to the proposed modification of § 1623, Assistant Attorney General Wilson did not advert to affidavits or certifications but stated only that

“[inclusion of the phrase 'proceedings before or ancillary to any court or grand jury’ in the false statement provision would in our opinion adequately bring within the coverage of the provision pre-trial depositions such as that contained in S. 1861.” S. 30 Hearings 411.

In our view, the Justice Department’s contemporaneous rather than its current interpretation offers the more plausible reading of the Subcommittee’s intent. Its attention having been drawn to the issue, had the Subcommittee wished to bring all affidavits and certifications within the statutory prohibition, Senator McClellan presumably would have so stated.

Finally, to construe the term ancillary proceeding in § 1623 as excluding statements given in less formal contexts than depositions would comport with Congress’ use of the phrase in a related provision of the Organized Crime Control Act. Title II of the Act, 18 U. S. C. § 6002, authorizes extension of immunity to any witness who claims his privilege against self-incrimination “in a proceeding . . . ancillary to” a court, grand jury, or agency of the United States, or before Congress or one of its committees. See n. 2, supra. Although neither the House nor Senate Report defines the precise scope of § 6002, they both specify pretrial depositions as the sole example of what would constitute an ancillary proceeding under that provision. H. R. Rep. No. 91-1549, p. 42 (1970); S. Rep. No. 91-617, p. 145 (1969).

Thus, both the language and history of the Act support the Court of Appeals’ conclusion that petitioner’s September 30 interview “lack[ed] the degree of formality” required by § 1623. 577 F. 2d, at 123. For the Government does not and could not seriously maintain that the interview in Canges’ office constituted a deposition. See Tr. of Oral Arg. 25. Mu'sgrave’s counsel made no attempt to comply with the procedural safeguards for depositions set forth in Fed. Rule Crim. Proc. 15 and 18 U. S. C. § 3503. A court order authorizing the deposition was never obtained. Nor did petitioner receive formal notice of the proceeding or of his right to have counsel present. Indeed, petitioner did not even certify the transcript of the interview as accurate.

To characterize such an interview as an ancillary proceeding would not only take liberties with the language and legislative history of § 1623, it would also contravene this Court’s long-established practice of resolving questions concerning the ambit of a criminal statute in favor of lenity. Huddleston v. United States, 415 U. S. 814, 831 (1974); Rewis v. United States, 401 U. S. 808, 812 (1971); Bell v. United States, 349 U. S. 81, 83 (1955). This practice reflects not merely a convenient maxim of statutory construction. Rather, it is rooted in fundamental principles of due process which mandate that no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited. Grayned v. City of Rockford, 408 U. S. 104, 108 (1972); United States v. Harriss, 347 U. S. 612, 617 (1954); Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939); McBoyle v. United States, 283 U. S. 25, 27 (1931). Thus, to ensure that a legislature speaks with special clarity when marking the boundaries of criminal conduct, courts must decline to impose punishment for actions that are not “ 'plainly and unmistakably’ ” proscribed. United States v. Gradwell, 243 U. S. 476, 485 (1917).

We cannot conclude here that Congress in fact intended or clearly expressed an intent that § 1623 should encompass statements made in contexts less formal than a deposition. Accordingly, we hold that petitioner’s September 30 declarations were not given in a proceeding ancillary to a court or grand jury within the meaning of the statute. The judgment of the Court of Appeals is

Reversed.

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

       In pertinent part, 18 U. S. C. § 1623 (1976 ed., Supp. I) provides:
      “(a) Whoever under oath (or in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code) in any proceeding before or ancillary to any court or grand jury of the United States knowingly makes any false material declaration or makes or uses any other information, including any book, paper, document, record, recording, or other material, knowing the same to contain any false material declaration, shall be fined not more than $10,000 or imprisoned not more than five years, or both.
      “(c) An indictment or information for violation of this section alleging that, in any proceedings before or ancillary to any court or grand jury of the United States, the defendant under oath has knowingly made two or more declarations, which are inconsistent to the degree that one of them is necessarily false, need not specify which declaration is false if—
      “(1) each declaration was material to the point in question, and
      “(2) each declaration was made within the period of the statute of limitations for the offense charged under this section.
      “In any prosecution under this section, the falsity of a declaration set forth in the indictment or information shall be established sufficient for conviction by proof that the defendant while under oath made irreconcilably contradictory declarations material to the point in question in any proceeding before or ancillary to any court or grand jury. It shall be a defense to an indictment or information made pursuant to the first sentence of this subsection that the defendant at the time he made each declaration believed the declaration was true.”

       Under 18 U. S. C. § 6002:
      “Whenever a witness refuses, on the basis of his privilege against self-incrimination, to testify or provide other information in a proceeding before or ancillary to—
      “(1) a court or grand jury of the United States,
      “(2) an agency of the United States, or
      “(3) either House of Congress, a joint committee of the two Houses, or a committee or a subcommittee of either House,
      and the person presiding over the proceeding communicates to the witness an order issued under this part, the witness may not refuse to comply with the order on the basis of his privilege against self-incrimination; but ho testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for perjury, giving a false statement, or otherwise failing to comply with the order.”

       Each count alleged that a specific representation in the September 30 statement was inconsistent with a corresponding portion of petitioner’s grand jury testimony. See App. 3-11.

         The District Court instructed the jury that in order to convict petitioner, it had to determine beyond a reasonable doubt that petitioner “while under oath, made irreconcilably contradictory declarations ... in any proceeding before or ancillary to a court or grand jury.” Tr. 179. The court did not define the term ancillary proceeding, but admonished the jury to render its verdict on the charges alleged in the indictment, which specified June 16, 1976, and September 30, 1976, as the proceedings at which inconsistent statements were given. Id., at 175-176; App. 3-11. Moreover, both the Assistant United States Attorney and defense counsel focused their summations on the September 30 statement. See Tr. 151, 167.

       Title 18 U. S. C. § 1621 provides:
      “Whoever—
      “(1) having taken an oath before a competent tribunal, officer, or person, in any case in which a law of the United States authorizes an oath to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed, is true, willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true; or
      “(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true;
      “is guilty of perjury and shall, except as otherwise expressly provided by law, be fined not more than $2,000 or imprisoned not more than five years, or both. This section is applicable whether the statement or subscription is made within or without the United States.”

       In particular, Congress focused on the two-witness rule, under which “the uncorroborated oath of one witness is not enough to establish the falsity of the testimony of the accused.” Hammer v. United States, 271 U. S. 620, 626 (1926); accord, Weiler v. United States, 323 U. S. 606, 608-610 (1945). See S. Rep. No. 91-617, pp. 57-59 (1969).

       See id., at 110-111; n. 5, supra.

       In its entirety, the original version of § 1623 (a) provided:
      “Whoever, having taken an oath in any trial, hearing, or proceeding before any court or grand jury, in which a law of the United States authorizes the oath, knowingly falsifies fact, or makes any false, fictitious, or fraudulent statement or representation, or makes or uses any false writing or document knowing the same to contain any false, fictitious, or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both.” S. 30, 91st Cong., 1st Sess., § 401 (1969).

       The provision of S. 1861 to which the Senator adverted involved use of depositions in racketeering investigations. It is currently codified as 18 U. S. C. § 1968.

         In arguing that petitioner’s September 30 interview was an ancillary-proceeding, the Government relies on United States v. Stassi, 583 F. 2d 122 (CA3 1978), and United States v. Krogh, 366 F. Supp. 1255, 1256 (DC 1973). The defendant in Stassi was convicted under § 1623 of making statements in a Fed. Rule Crim. Proe. 11 guilty plea hearing that were irreconcilable with his declarations in an affidavit supporting a motion to vacate sentence. Without adverting to any legislative history, the Court of Appeals affirmed on the theory that a false affidavit “offends the administration of criminal justice as much as [other] false material declaration[s].” 583 F. 2d, at 127. Insofar as Stassi’s analysis is inconsistent with our decision here, we decline to follow it. And Krogh affords no support for the Government’s position in this case since the court there held only that a sworn deposition taken in the office of an Assistant United States Attorney General was a proceeding ancillary to a grand jury investigation.

         Title 18 U. S. C. § 3503 (a) provides:
      “Whenever due to exceptional circumstances it is in the interest of justice that the testimony of a prospective witness of a party be taken and preserved, the court at any time after the filing of an indictment or information may upon motion of such party and notice to the parties order that the testimony of such witness be taken by deposition . .. .”
      The language of Fed. Rule Crim. Proc. 15 (a) is substantially the same.

       See 18 U. S. C. §§3503 (b), (c); Fed. Rule Crim. Proc. 15 (b).

       See App. 46; 18 U. S. C. §3503 (d); Fed. Rule Crim Proc. 15 (d).

       The Government points out that if this Court reverses petitioner’s conviction on the ground that the September 30 statement was not given in an ancillary proceeding, petitioner will be subject to reindictment for making declarations in the October 21 hearing inconsistent with his testimony in the June 16 grand jury proceeding. Thus, the Government urges us to reach the second question decided by the Court of Appeals concerning the use of petitioner’s immunized testimony to prove a violation of § 1623. Brief for United States 36-37. We decline to render an advisory opinion based on the Government’s suppositions not only that petitioner will be reindicted but also that he will be convicted after a trial at which the immunized testimony is introduced.


author: Mr. Justice Makshall

text:
    UNITED STATES v. BATCHELDER
    No. 78-776.
    Argued April 18, 1979
    Decided June 4, 1979

      Makshall, J., delivered the opinion for a unanimous Court.

      Andrew J. Levander argued the cause for the United States pro hac vice. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Deputy Solicitor General Frey, Sidney Glazer, and Frank J. Marine.

      Charles A. Bellows argued the cause for respondent. With him on the brief were Jason E. Bellows and Carole K. Bellows.

   Mr. Justice Makshall

delivered the opinion of the Court.

At issue in this case are two overlapping provisions of the Omnibus Crime Control and Safe Streets Act of 1968 (Omnibus Act). Both prohibit convicted felons from receiving firearms, but each authorizes different maximum penalties. We must determine whether a defendant convicted of the offense carrying the greater penalty may be sentenced only under the more lenient provision when his conduct violates both statutes.

I

Respondent, a previously convicted felon, was found guilty of receiving a firearm that had traveled in interstate commerce, in violation of 18 U. S. C. §922 (h). The District Court sentenced him under 18 U. S. C. § 924 (a) to five years’ imprisonment, the maximum term authorized for violation of §922 (h).

The Court of Appeals affirmed the conviction but, by a divided vote, remanded for resentencing. 581 F. 2d 626 (CA7 1978). The majority recognized that respondent had been indicted and convicted under § 922 (h) and that § 924 (a) permits five years’ imprisonment for such violations. 581 F. 2d, at 629. However, noting that the substantive elements of § 922 (h) and 18 U. S. C. App. § 1202 (a) are identical as applied to a convicted felon who unlawfully receives a firearm, the court interpreted the Omnibus Act to allow no more than the 2-year maximum sentence provided by § 1202 (a). 581 F. 2d, at 629. In so holding, the Court of Appeals relied on three principles of statutory construction. Because, in its view, the “arguably contradictory]” penalty provisions for similar conduct and the “inconclusive” legislative history raised doubt whether Congress had intended the two penalty provisions to coexist, the court first applied the doctrine that ambiguities in criminal legislation are to be resolved in favor of the defendant. Id., at 630. Second, the court determined that since § 1202 (a) was “Congress’ last word on the issue of penalty,” it may have implicitly repealed the punishment provisions of § 924 (a). 581 F. 2d, at 630. Acknowledging that the “first two principles cannot be applied to these facts without some difficulty,” the majority also invoked the maxim that a court should, if possible, interpret a statute to avoid constitutional questions. Id., at 630-631. Here, the court reasoned, the “prosecutor’s power to select one of two statutes that are identical except for their penalty provisions” implicated “important constitutional protections.” Id., at 631.

The dissent found no basis in the Omnibus Act or its legislative history for engrafting the penalty provisions of § 1202 (a) onto §§ 922 (h) and 924 (a). 581 F. 2d, at 638-639. Relying on “the long line of cases . . . which hold that where an act may violate more than one criminal statute, the government may elect to prosecute under either, even if [the] defendant risks the harsher penalty, so long as the prosecutor does not discriminate against any class of defendants,” the dissent further concluded that the statutory scheme was constitutional. Id., at 637.

We granted certiorari, 439 U. S. 1066 (1979), and now reverse the judgment vacating respondent’s 5-year prison sentence.

II

This Court has previously noted the partial redundancy of §§ 922 (h) and 1202 (a), both as to the conduct they proscribe and the individuals they reach. See United States v. Bass, 404 U. S. 336, 341-343, and n. 9 (1971). However, we find nothing in the language, structure, or legislative history of the Omnibus Act to suggest that because of this overlap, a defendant convicted under § 922 (h) may be imprisoned for no more than the maximum term specified in § 1202 (a). As we read the Act, each substantive statute, in conjunction with its own sentencing provision, operates independently of the other.

Section 922 (h), contained in Title IY of the Omnibus Act, prohibits four categories of individuals from receiving “any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” See n. 2, supra. Persons who violate Title IV are subject to the penalties provided by §924 (a), which authorizes a maximum fine of $5,000 and imprisonment for up to five years. See n. 3, supra. Section 1202 (a), located in Title VII of the Omnibus Act, forbids five categories of individuals from “receiv[ing], possess [ing], or transport [ing] in commerce or affecting commerce . . . any firearm.” This same section authorizes a maximum fine of $10,000 and imprisonment for not more than two years. See n. 4, supra.

While §§ 922 and 1202 (a) both prohibit convicted felons such as petitioner from receiving firearms, each Title unambiguously specifies the penalties available to enforce its substantive proscriptions. Section 924 (a) applies without exception to “[w]hoever violates any provision” of Title IV, and § 922 (h) is patently such a provision. See 18 U. S. C., ch. 44; 82 Stat. 226, 234; S. Rep. No. 1097, 90th Cong., 2d Sess., 20-25, 117 (1968). Similarly, because Title VII’s substantive prohibitions and penalties are both enumerated in § 1202, its penalty scheme encompasses only criminal prosecutions brought under that provision. On their face, these statutes thus establish that § 924 (a) alone delimits the appropriate punishment for violations of § 922 (h).

That Congress intended to enact two independent gun control statutes, each fully enforceable on its own terms, is confirmed by the legislative history of the Omnibus Act. Section 922 (h) derived from § 2 (f) of the Federal Firearms Act of 1938, 52 Stat. 1251, and § 5 of that Act, 52 Stat. 1252, authorized the same maximum prison term as § 924 (a). Title IV of the Omnibus Act merely recodified with some modification this “carefully constructed package of gun control legislation,” which had been in existence for many years. Scarborough v. United States, 431 U. S. 563, 570 (1977); see United States v. Bass, supra, at 343 n. 10; 15 U. S. C. §§ 902, 905 (1964 ed.).

By contrast, Title VII was a “last-minute” floor amendment, “hastily passed, with little discussion, no hearings, and no report.” United States v. Bass, supra, at 344, and n. 11; see Scarborough v. United States, supra, at 569-570, and n. 9. And the meager legislative debates involving that amendment demonstrate no intention to alter the terms of Title IV. Immediately before the Senate passed Title VII, Senator Dodd inquired whether it would substitute for Title IV. 114 Cong. Rec. 14774 (1968). Senator Long, the sponsor of the amendment, replied that § 1202 would “take nothing from” but merely “add to” Title IV. 114 Cong. Rec. 14774 (1968). Similarly, although Title VII received only passing mention in House discussions of the bill, Representative Machen made clear that the amendment would “complement . . . the gun-control legislation contained in title IV.” Id., at 16286. Had these legislators intended to pre-empt Title IV in cases of overlap, they presumably would not have indicated that the purpose of Title VII was to complement Title IV. See Scarborough v. United States, supra, at 573. These discussions, together with the language and structure of the Omnibus Act, evince Congress’ clear understanding that the two Titles would be applied independently.

In construing § 1202 (a) to override the penalties authorized by § 924 (a), the Court of Appeals relied, we believe erroneously, on three principles of statutory interpretation. First, the court invoked the well-established doctrine that ambiguities in criminal statutes must be resolved in favor of lenity. E. g., Rewis v. United States, 401 U. S. 808, 812 (1971); United States v. Bass, 404 U. S., at 347; United States v. Culbert, 435 U. S. 371, 379 (1978); United States v. Naftalin, 441 U. S. 768, 778-779 (1979); Dunn v. United States, ante, at 112-113. Although this principle of construction applies to sentencing as well as substantive provisions, see Simpson v. United States, 435 U. S. 6, 14-15 (1978), in the instant case there is no ambiguity to resolve. Respondent unquestionably violated § 922 (h), and § 924 (a) unquestionably permits five years’ imprisonment for such a violation. That § 1202 (a) provides different penalties for essentially the same conduct is no justification for taking liberties with unequivocal statutory language. See Barrett v. United States, 423 U. S. 212, 217 (1976). By its express terms, § 1202 (a) limits its penalty scheme exclusively to convictions obtained under that provision. Where, as here, “Congress has conveyed its purpose clearly, ... we decline to manufacture ambiguity where none exists.” United States v. Culbert, supra, at 379.

Nor can § 1202 (a) be interpreted as implicitly repealing § 924 (a) whenever a defendant’s conduct might violate both Titles. For it is “not enough to show that the two statutes produce differing results when applied to the same factual situation.” Radzanower v. Touche Ross & Co., 426 U. S. 148, 155 (1976). Rather, the legislative intent to repeal must be manifest in the “ 'positive repugnancy between the provisions.’ ” United States v. Borden Co., 308 U. S. 188, 199 (1939). In this case, however, the penalty provisions are fully capable of coexisting because they apply to convictions under different statutes.

Finally, the maxim that statutes should be construed to avoid constitutional questions offers no assistance here. This “ 'cardinal principle’ of statutory construction ... is appropriate only when [an alternative interpretation] is 'fairly possible’ ” from the language of the statute. Swain v. Pressley, 430 U. S. 372, 378 n. 11 (1977); see Crowell v. Benson, 285 U. S. 22, 62 (1932); United States v. Sullivan, 332 U. S. 689, 693 (1948); Shapiro v. United States, 335 U. S. 1, 31 (1948). We simply are unable to discern any basis in the Omnibus Act for reading the term “five” in § 924 (a) to mean “two.”

Ill

In resolving the statutory question, the majority below expressed “serious doubts about the constitutionality of two statutes that provide different penalties for identical conduct.” 581 F. 2d, at 633-634 (footnote omitted). Specifically, the court suggested that the statutes might (1) be void for vagueness, (2) implicate “due process and equal protection interest^] in avoiding excessive prosecutorial discretion and in obtaining equal justice,” and (3) constitute an impermissible delegation of congressional authority. Id., at 631-633. We find no constitutional infirmities.

A

It is a fundamental tenet of due process that “[n]o one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.” Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939). A criminal statute is therefore invalid if it “fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden.” United States v. Harriss, 347 U. S. 612, 617 (1954). See Connolly v. General Construction Co., 269 U. S. 385, 391-393 (1926); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972); Dunn v. United States, ante, at 112-113. So too, vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute. See United States v. Evans, 333 U. S. 483 (1948); United States v. Brown, 333 U. S. 18 (1948); cf. Giaccio v. Pennsylvania, 382 U. S. 399 (1966).

The provisions in issue here, however, unambiguously specify the activity proscribed and the penalties -available upon conviction. See supra, at 119. That this particular conduct may violate both Titles does not detract from the notice afforded by each. Although the statutes create uncertainty as to which crime may be charged and therefore what penalties may be imposed, they do so to no greater extent than would a single statute authorizing various alternative punishments. So long as overlapping criminal provisions clearly define the conduct prohibited and the punishment authorized, the notice requirements of the Due Process Clause are satisfied.

B

This Court has long recognized that when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants. See United States v. Beacon Brass Co., 344 U. S. 43, 45-46 (1952); Rosenberg v. United States, 346 U. S. 273, 294 (1953) (Clark, J., concurring, joined by five Members of the Court); Oyler v. Boles, 368 U. S. 448, 456 (1962); SEC v. National Securities, Inc., 393 U. S. 453, 468 (1969); United States v. Naftalin, 441 U. S., at 778. Whether to prosecute and what charge to file or bring before a grand jury are decisions that generally rest in the prosecutor’s discretion. See Confiscation Cases, 7 Wall. 454 (1869); United States v. Nixon, 418 U. S. 683, 693 (1974); Bordenkircher v. Hayes, 434 U. S. 357, 364 (1978).

The Court of Appeals acknowledged this “settled rule” allowing prosecutorial choice. 581 F. 2d, at 632. Nevertheless, relying on the dissenting opinion in Berra v. United States, 351 U. S. 131 (1956), the court distinguished overlapping statutes with identical standards of proof from provisions that vary in some particular. 581 F. 2d, at 632-633. In the court’s view, when two statutes prohibit “exactly the same conduct,” the prosecutor’s “selection of which of two penalties to apply” would be “unfettered.” Id., at 633, and n. 11. Because such prosecutorial discretion could produce “unequal justice,” the court expressed doubt that this form of legislative redundancy was constitutional. Id., at 631. We find this analysis factually and legally unsound.

Contrary to the Court of Appeals’ assertions, a prosecutor’s discretion to choose between §§ 922 (h) and 1202 (a) is not “unfettered/’ Selectivity in the enforcement of criminal laws is, of course, subject to constitutional constraints. And a decision to proceed under § 922 (h) does not empower the Government to predetermine ultimate criminal sanctions. Rather, it merely enables the sentencing judge to impose a longer prison sentence than § 1202 (a) would permit and precludes him from imposing the greater fine authorized by § 1202 (a). More importantly, there is no appreciable difference between the discretion a prosecutor exercises when deciding whether to charge under one of two statutes with different elements and the discretion he exercises when choosing one of two statutes with identical elements. In the former situation, once he determines that the proof will support conviction under either statute, his decision is indistinguishable from the one he faces in the latter context. The prosecutor may be influenced by the penalties available upon conviction, but this fact, standing alone, does not give rise to a violation of the Equal Protection or Due Process Clause. Cf. Rosenberg v. United States, supra, at 294 (Clark, J., concurring); Oyler v. Boles, supra, at 456. Just as a defendant has no constitutional right to elect which of two applicable federal statutes shall be the basis of his indictment and prosecution, neither is he entitled to choose the penalty scheme under which he will be sentenced. See U. S. Const., Art. II, §§ 2, 3; 28 U. S. C. §§ 515, 516; United States v. Nixon, supra, at 694.

C

Approaching the problem of prosecutorial discretion from a slightly different perspective, the Court of Appeals postulated that the statutes might impermissibly delegate to the Executive Branch the Legislature’s responsibility to fix criminal penalties. See United States v. Hudson, 7 Cranch 32, 34 (1812); United States v. Grimaud, 220 U. S. 506, 516-517, 519 (1911); United States v. Evans, 333 U. S., at 486. We do not agree. The provisions at issue plainly demarcate the range of penalties that prosecutors and judges may seek and impose. In light of that specificity, the power that Congress has delegated to those officials is no broader than the authority they routinely exercise in enforcing the criminal laws. Having informed the courts, prosecutors, and defendants of the permissible punishment alternatives available under each Title, Congress has fulfilled its duty. See United States v. Evans, supra, at 486, 492, 495.

Accordingly, the judgment of the Court of Appeals is

Reversed.

       82 Stat. 197.

       In pertinent part, 18 U. S. C. § 922 (h) provides:
      “It shall be unlawful for any person—
      “(1) who is under indictment for, or who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
      “(2) who is a fugitive from justice;
      “(3) who is an unlawful user of or addicted to marihuana or any depressant or stimulant drug ... or narcotic drug . . . ; or
      “(4) who has been adjudicated as a mental defective or who has been committed to any mental institution;
      “to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.”

       Title 18 U. S. C. § 924 (a) provides in relevant part:
      “Whoever violates any provision of this chapter . .. shall be fined not more than $5,000, or imprisoned not more than five years, or both, and shall become eligible for parole as the Board of Parole shall determine.”

       Section 1202 (a) states:
      “Any person who—
      “(1) has been convicted by a court of the United States or of a State or any political subdivision thereof of a felony, or
      “(2) has been discharged from the Armed Forces under dishonorable conditions, or
      “(3) has been adjudged by a court of the United States or of a State or any political subdivision thereof of being mentally incompetent, or
      “(4) having been a citizen of the United States has renounced his citizenship, or
      “(5) being an alien is illegally or unlawfully in the United States,
      “and who receives, possesses, or transports in commerce or affecting commerce, after the date of enactment of this Act, any firearm shall be fined not more than $10,000 or imprisoned for not more than two years, or both.” 18 U. S. C. App. § 1202 (a).

       Even in the case of convicted felons, however, the two statutes are not coextensive. For example, Title VII defines a felony as
      “any offense punishable by imprisonment for a term exceeding one year, but does not include any offense (other than one involving a firearm or explosive) classified as a misdemeanor under the laws of a State and punishable by a term of imprisonment of two years or less.” 18 U. S. C. App. § 1202 (c)(2).
      Under Title IV, “a crime punishable by imprisonment for a term exceeding one year,” 18 U. S. C. § 922 (h) (1), excludes
      “(A) any Federal or State offenses pertaining to antitrust violations, unfair trade practices, restraints of trade, or other similar offenses relating to the regulation of business practices ... , or
      “(B) any State offense (other than one involving a firearm or explosive) classified by the laws of the State as a misdemeanor and punishable by a term of imprisonment of two years or less.” 18 U. S. C. § 921 (a) (20).
      In addition, the Commerce Clause elements of §§ 922 (h) and 1202 (a) may vary slightly. See Barrett v. United States, 423 U. S. 212 (1976); Scarborough v. United States, 431 U. S. 563, 571-572 (1977).

       Four months after enacting the Omnibus Act, the same Congress amended and re-enacted Titles IV and VII as part of the Gun Control Act of 1968. 82 Stat. 1213. This latter Act also treats the provisions of Titles IV and VII as independent and self-contained. Title I of the Gun Control Act amended Title IV, compare 82 Stat. 225 with 82 Stat. 1214, and Title III of the Gun Control Act amended Title VII. Compare 82 Stat. 236 with 82 Stat. 1236. The accompanying legislative Reports nowhere indicate that the sentencing scheme of § 1202 (a) was to govern convictions under § 922. See H. R. Conf. Rep. No. 1956, 90th Cong., 2d Sess., 31, 34 (1968); S. Rep. No. 1501, 90th Cong., 2d Sess., 21, 37 (1968).

       The anomalies created by the Court of Appeals’ decision further suggest that Congress must have intended only the penalties specified in § 924 (a) to apply to violations of § 922 (h). For example, a person who received a firearm while under indictment for murder would be subject to five years’ imprisonment, since only § 922 (h) includes those under indictment for a felony. 18 U. S. C. § 922 (h) (1). If he received the firearm after his conviction, however, the term of imprisonment could not exceed two years. Similarly, because § 922 (h) alone proscribes receipt of ammunition, a felon who obtained a single bullet could receive a 5-year sentence, while receipt of a firearm would be punishable by no more than two years’ imprisonment under § 1202 (a). In addition, the Court of Appeals’ analysis leaves uncertain the result that would obtain if a sentencing judge wished to impose a maximum prison sentence and a maximum fine for conduct violative of both Titles. The’doctrine of lenity would suggest that the $5,000 maximum of § 924 (a) and the 2-year maximum of § 1202 (a) would apply. However, if the doctrine of implied repeal controls, arguably the $10,000 fine authorized by § 1202 (a) could be imposed for a violation of § 922 (h). See infra, at 122.

        Berra involved two tax evasion statutes, which the Court interpreted as proscribing identical conduct. The defendant, who was charged and convicted under the felony provision, argued that the jury should have been instructed on the misdemeanor offense as well. The Court rejected this contention and refused to consider whether the defendant’s sentence was invalid because in excess of the maximum authorized by the misdemeanor statute. The dissent urged that permitting the prosecutor to control whether a particular act would be punished as a misdemeanor or a felony raised “serious constitutional questions.” 351 U. S., at 139-140.

       The Equal Protection Clause prohibits selective enforcement “based upon an unjustifiable standard such as race, religion, or other arbitrary-classification.” Oyler v. Boles, 368 U. S. 448, 456 (1962). Respondent does not allege that his prosecution was motivated by improper considerations.


author: Mr. Justice Blackmun

text:
    BROWN v. FELSEN
    No. 78-58.
    Argued February 21, 1979
    Decided June 4, 1979
    BlacemuN, J., delivered the opinion for a unanimous Court.

      Craig A. Christensen argued the cause for petitioner. With him on the briefs was Deanna E. Hickman.

      Alex Stephen Keller argued the cause and filed a brief for respondent.
   Mr. Justice Blackmun

delivered the opinion of the Court.

The issue here is whether a bankruptcy court may consider evidence extrinsic to the judgment and record of a prior state suit when determining whether a debt previously reduced to judgment is dischargeable under § 17 of the Bankruptcy Act, 11 U. S. C. § 35.

I

Petitioner G. Garvin Brown III was a guarantor for respondent Mark Paul Felsen and Felsen’s car dealership, Le Mans Motors, Inc. Petitioner’s guarantee secured a bank loan that financed the dealership’s trading in Lotus, Ferrari, and Lamborghini automobiles. In 1975, the lender brought a collection suit against petitioner, respondent, and Le Mans in Colorado state court. Petitioner filed an answer to the bank’s complaint, and a cross-claim against respondent and Le Mans. The answer and the cross-claim, by incorporating the answer, alleged that respondent and Le Mans induced petitioner to sign the guarantee “by misrepresentations and non-disclosures of material facts.” App. 35. The suit was settled by a stipulation. It provided that the bank should recover jointly and severally against all three defendants, and that petitioner should have judgment against respondent and Le Mans. Neither the stipulation nor the resulting judgment indicated the cause of action on which respondent’s liability to petitioner was based. Because the case was settled, respondent’s sworn deposition was never made part of the court record.

A short time later, respondent filed a petition for voluntary bankruptcy and sought to have his debt to petitioner discharged. Through discharge, the Bankruptcy Act provides “a new opportunity in life and a clear field for future effort, unhampered by the pressure and discouragement of preexisting debt,” Local Loan Co. v. Hunt, 292 U. S. 234, 244 (1934). By seeking discharge, however, respondent placed the rectitude of his prior dealings squarely in issue, for, as the Court has noted, the Act limits that opportunity to the “honest but unfortunate debtor.” Ibid. Section 14 of the Act, 11 U. S. C. § 32, specifies that a debtor may not obtain a discharge if lie has committed certain crimes or offenses. Section 17a, the focus of this case, provides that certain types of debts are not affected by a discharge. These include, under § 17a (2), “liabilities for obtaining money or property by false pretenses or false representations ... or for willful and malicious conversion of the property of another” and, under § 17a (4), debts that “were created by his fraud, embezzlement, misappropriation, or defalcation while acting as an officer or in any fiduciary capacity.”

In the bankruptcy court, petitioner sought to establish that respondent's debt to petitioner was not dischargeable. Petitioner alleged that the guarantee debt was the product of respondent’s fraud, deceit, and malicious conversion and so came within §§ 17a (2) and 17a (4). Petitioner contended that respondent had prepared false title certificates, sold automobiles out of trust, and applied the proceeds to private purposes. Respondent answered and moved for summary judgment. Respondent said that the prior state-court proceeding did not result in a finding of fraud, and contended that res judicata barred relitigation of the nature of respondent’s debt to petitioner, even though the application of § 17 had not been in issue in the prior proceeding.

Before 1970, such res judicata claims were seldom heard in federal court. Traditionally, the bankruptcy court determined whether the debtor merited a discharge under § 14, but left the dischargeability under § 17 of a particular debt to the court in which the creditor sued, after bankruptcy, to enforce his prior judgment. Typically, that court was a state court. In 1970, however, Congress altered § 17 to require creditors to apply to the bankruptcy court for adjudication of certain dischargeability questions, including those arising under §§ 17a (2) and 17a (4). In In re Nicholas, 510 F. 2d 160, cert. denied, 421 U. S. 1012 (1975), the United States Court of Appeals for the Tenth Circuit, confronting for the first time the res judicata question presented here, resolved it by holding that, in determining the dischargeability of a claim previously reduced to judgment, the District Court had properly limited its review to the record and judgment in the prior state-court proceeding. The Court of Appeals found that its decision accorded with the majority rule among state courts previously considering the question.

The bankruptcy court here, bound by Nicholas, somewhat reluctantly confined its consideration to the judgment, pleadings, exhibits, and stipulation which were in the state-court record. It declined to hear other evidence, and it refused to consider respondent’s deposition that had never been made part of that record. The court concluded that, because neither the judgment nor the record showed that petitioner’s allegation of misrepresentation was the basis for the judgment on the cross-claim against respondent, the liability had not been shown to be within §§ 17a (2) and 17a (4). The court granted summary judgment for respondent and held that the debt was dischargeable. App. 44-48.

Both the United States District Court for the District of Colorado, id., at 49, and the United States Court of Appeals for the Tenth Circuit affirmed. In an unpublished opinion, the Court of Appeals followed Nicholas, applied res judicata, and said that the prior consent decree was conclusive as to the nature of respondent’s liability. The court noted that neither the stipulation nor the judgment mentioned fraud, and the court said that petitioner had not even met the state requirement that fraud be pleaded with specificity. See Colo. Rule Civ. Proc. 9 (b). The court agreed that respondent’s debt was dischargeable. App. 50-56.

Since Nicholas was decided, every other Court of Appeals that has considered the question has rejected res judicata and held that extrinsic evidence may be admitted in order to determine accurately the dischargeability under § 17 of a debt previously reduced to judgment in state court. We granted certiorari to resolve this conflict. 439 U. S. 925 (1978).

II

Res judicata ensures the finality of decisions. Under res judicata, “a final judgment on the merits bars further claims by parties or their privies based on the same cause of action.” Montana v. United States, 440 U. S. 147, 153 (1979). Res judicata prevents litigation of all grounds for, or defenses to, recovery that were previously available to the parties, regardless of whether they were asserted or determined in the prior proceeding. Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 378 (1940); 1B J. Moore, Federal Practice ¶ 0.405 [1] (2d ed. 1974). Res judicata thus encourages reliance on judicial decisions, bars vexatious litigation, and frees the courts to resolve other disputes.

Bankruptcy often breeds litigation, and respondent contends that the policy of repose which underlies res judicata has particular force here. Respondent argues that petitioner chose not to press the question of fraud in the state-court proceeding even though an adjudication of fraud would have entitled petitioner to extraordinary, remedies such as exemplary damages and body execution. Respondent says that because petitioner did not obtain a stipulation concerning fraud in the prior state-court proceeding, he is now barred from litigating matters that could have been concluded in the consent judgment. See United States v. Armour & Co., 402 U. S. 673, 681-682 (1971). Applying res judicata in bankruptcy court, it is argued, prevents a creditor from raising as an afterthought claims so insubstantial that they had previously been overlooked. In respondent’s view, res judicata stops harassment and promotes the orderly processes of justice by encouraging the consolidation of the entire dispute between debtor and creditor into one prior proceeding.

Because res judicata may govern grounds and defenses not previously litigated, however, it blockades unexplored paths that may lead to truth. Nor the sake of repose, res judicata shields the fraud and the cheat as well as the honest person. It therefore is to be invoked only after careful inquiry. Petitioner contends, and we agree, that here careful inquiry reveals that neither the interests served by res judicata, the process of orderly adjudication in state courts, nor the policies of the Bankruptcy Act would be well served by foreclosing petitioner from submitting additional evidence to prove his case.

A

Respondent’s res judicata claim is unlike those customarily entertained by the courts. Por example, this case is readily distinguishable from Chicot County Drainage Dist. v. Baxter State Bank, supra. There, bondholders participated in a federal statutory proceeding for the readjustment of indebtedness and a judgment was entered. After parties from another State succeeded in having the statute declared unconstitutional, the bondholders brought a suit seeking to collect the sums that had been due before readjustment. The Court held that res judicata barred the second suit and said that the bondholders "were not the less bound by the decree” because they failed to raise the constitutional claim in the first proceeding. 308 U. S., at 375.

Here, in contrast, petitioner readily concedes that the prior decree is binding. That is the cornerstone of his claim. He does not assert a new ground for recovery, nor does he attack the validity of the prior judgment. Rather, what he is attempting to meet here is the new defense of bankruptcy which respondent has interposed between petitioner and the sum determined to be due him. A substantial minority of state-court decisions, particularly those following Fidelity & Casualty Co. v. Golombosky, 133 Conn. 317, 322-324, 50 A. 2d 817, 819-820 (1946) (Maltbie, C. J.), have recognized this distinction and have refused to apply res judicata in determining the dischargeability of debts previously reduced to judgment. Respondent has upset the repose that would justify treating the prior state-court proceeding as final, and it would hardly promote confidence in judgments to prevent petitioner from meeting respondent’s new initiative.

B

Respondent contends that the § 17 questions raised here, or similar issues of state law, could have been considered in the prior state-court proceeding and therefore are not “new.” Respondent argues that the state-court collection suit is the appropriate forum for resolving all debtor-creditor disputes, including those concerning dischargeability. While in some circumstances the consolidation of proceedings may be desirable, here consolidation would undercut a statutory policy in favor of resolving § 17 questions in bankruptcy court, and would force state courts to decide these questions at a stage when they are not directly in issue and neither party has a full incentive to litigate them. See In re Pigge, 539 F. 2d 369, 371-372 (CA4 1976).

1. Considerations material to discharge are irrelevant to the ordinary collection proceeding. The creditor sues on the instrument which created the debt. Even if an issue similar to those created by § 17 should arise, the state-law concept is likely to differ from that adopted in the federal statute. See 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy ¶ 17.16 [6], p. 1650.1 (14th ed. 1978). For example, in Davis v. Aetna Acceptance Co., 293 U. S. 328 (1934), the Court held that a mere technical conversion by a bankrupt dealer in automobiles was not “willful and malicious” within the meaning of § 17 by virtue of being actionable under state law, nor was a misappropriation of funds, held pursuant to a “trust receipt,” a breach of an express trust sufficient to constitute an act done “as an officer or in any fiduciary capacity.”

When § 17 issues are not identical to those arising under state law, the parties have little incentive to litigate them. In the collection suit, the debtor’s bankruptcy is still hypothetical. The rule proposed by respondent would force an otherwise unwilling party to try § 17 questions to the hilt in order to protect himself against the mere possibility that a debtor might take bankruptcy in the future. In many cases, such litigation would prove, in the end, to have been entirely unnecessary, and it is not surprising that at least one state court has expressly refused to embroil itself in an advisory adjudication of this kind. See Pioneer Finance & Thrift Co. v. Powell, 21 Utah 2d 201, 204, 443 P. 2d 389, 391 (1968). And absent trial on the merits, there is no particular reason to favor extraneous facts thrown into a record for § 17 purposes over facts adduced before the bankruptcy court.

2. If a state court should expressly rule on § 17 questions, then giving finality to those rulings would undercut Congress’ intention to commit § 17 issues to the jurisdiction of the bankruptcy court. The 1970 amendments eliminated post-bankruptcy state-court collection suits as a means of resolving certain § 17 dischargeability questions. In those suits, creditors had taken advantage of debtors who were unable to retain counsel because bankruptcy had stripped them of their assets. Congress’ primary purpose was to stop that abuse. A secondary purpose, however, was to take these § 17 claims away from state courts that seldom dealt with the federal bankruptcy laws and to give those claims to the bankruptcy court so that it could develop expertise in handling them. By the express terms of the Constitution, bankruptcy law is federal law, U. S. Const., Art. I, § 8, cl. 4, and the Senate Report accompanying the amendment described the bankruptcy court’s jurisdiction over these § 17 claims as “exclusive.” S. Rep. No. 91-1173, p. 2 (1970). While Congress did not expressly confront the problem created by prebank-ruptcy state-court adjudications, it would be inconsistent with the philosophy of the 1970 amendments to adopt a policy of res judicata which takes these § 17 questions away from bankruptcy courts and forces them back into state courts. See In re McMillan, 579 F. 2d 289, 293 (CA3 1978); In re Houtman, 568 F. 2d 651, 654 (CA9 1978); In re Pigge, 539 F. 2d, at 371; 1 D. Cowans, Brankruptcy Law and Practice § 253, p. 298 (1978). Compare 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy ¶ 17.16 [6], p. 1650.1 n. 50 (14th ed. 1978) (1970 Act), with id., ¶ 17.16 [4], p. 1643 (prior state law).

Respondent argues that petitioner could have avoided such a result and preserved his dischargeability contentions for bankruptcy court review by bargaining for a stipulation that § 17 issues were not resolved by the consent judgment. It makes little sense, however, to resolve a federal discharge-ability question according to whether or not the parties in state court waived their right to engage in hypothetical litigation in an inappropriate forum.

3. Respondent also contends that petitioner had an adequate incentive to prove state-law fraud, which might have entailed proof identical to that required by § 17. Petitioner, however, rejected whatever lure exemplary damages and body execution may have provided. That rejection does not conclusively show that petitioner thought respondent was innocent of fraud. Petitioner may have thought those remedies would not be advantageous to him. While respondent is certainly entitled to claim that res judicata would bar further pursuit of those extraordinary remedies in state court, their hypothetical desirability provides no basis for preventing petitioner from recovering on the debt, the remedy he elected from the beginning.

C

Refusing to apply res judicata here would permit the bankruptcy court to make an accurate determination whether respondent in fact committed the deceit, fraud, and malicious conversion which petitioner alleges. These questions are now, for the first time, squarely in issue. They are the type of question Congress intended that the bankruptcy court would resolve. That court can weigh all the evidence, and it can also take into account whether or not petitioner's failure to press these allegations at an earlier time betrays a weakness in his case on the merits.

Some indication that Congress intended the fullest possible inquiry arises from the history of § 17. In the 1898 Bankruptcy Act, Congress provided that only “judgments” sounding in fraud would be excepted from a bankrupt's discharge. 30 Stat. 550. In 1903, Congress substituted “liabilities” for “judgments.” 32 Stat. 798. The amendment, said the accompanying House Report, was “in the interest of justice and honest dealing and honest conduct,” and it was intended “to exclude beyond peradventure certain liabilities growing out of offenses against good morals.” This broad language suggests that all debts arising out of conduct specified in § 17 should be excepted from discharge and the mere fact that a conscientious creditor has previously reduced his claim to judgment should not bar further inquiry into the true nature of the debt. Cf. Hargadine-McKittrick Dry Goods Co. v. Hudson, 111 F. 361, 362-363 (ED Mo. 1901), aff'd, 122 F. 232, 235-236 (CA8 1903) (comparing 1903 Act to prior law).

In sum, we reject respondent’s contention that res judicata applies here and we hold that the bankruptcy court is not confined to a review of the judgment and record in the prior state-court proceedings when considering the dischargeability of respondent’s debt. Adopting the rule respondent urges would take § 17 issues out of bankruptcy courts well suited to adjudicate them, and force those issues onto state courts concerned with other matters, all for the sake of a repose the bankrupt has long since abandoned. This we decline to do. The judgment of the Court of Appeals is reversed.

It is so ordered.

       In 1978, Congress repealed the Bankruptcy Act, effective October 1, 1979. See Bankruptcy Reform Act of 1978, Pub. L. 95-598, § 401 (a), 92 Stat. 2682. A case commenced under the Bankruptcy Act continues to be governed by it. §403 (a), 92 Stat. 2683. Discharge provisions substantially similar to § 17 of the Bankruptcy Act appear in § 523 of the new law. 11 U. S. C. App. § 523 (1976 ed., Supp. II).

       See Pub. L. 91-467, §§ 5-7, 84 Stat. 992; H. R. Rep. No. 91-1502 (1970); S. Rep. No. 91-1173 (1970).

       The court observed that, in its experience, the Nicholas rule had “created more difficulties and more problems than it has solved.” Tr. in No. 76 B 56 (Colo., Dec. 14, 1976), p. 13.

       See In re Wright, 584 F. 2d 83, 84 (CA5 1978); In re McMillan, 579 F. 2d 289, 293, and n. 6 (CA3 1978); In re Houtman, 568 F. 2d 651, 653-654 (CA9 1978); In re Pigge, 539 F. 2d 369, 371-372 (CA4 1976).
      Two Circuits held that extrinsic evidence was admissible under pre-1970 law. See Martin v. Rosenbaum, 329 F. 2d 817, 820 (CA9 1964); In re Johnson, 323 F. 2d 574 (CA3 1963). But cf. Chernick v. United States, 492 F. 2d 1349, 1351, and n. 4 (CA7 1974) (bound by prior post-bankruptcy judgment). This Court, in dictum, indicated that extrinsic evidence could be admitted in a proceeding under the 1867 Bankruptcy Act. Strang v. Bradner, 114 U. S. 555, 560-561 (1885).

       In Colorado, body 'execution is a statutory remedy which, under certain circumstances, permits a creditor to have a tortious judgment debtor imprisoned at the creditor’s expense. See Hershey v. People, 91 Colo. 113, 12 P. 2d 345 (1932); Colo. Rev. Stat. § 13-59-103 (1973).

       See United States Credit Bureau v. Manning, 147 Cal. App. 2d 558, 562, 305 P. 2d 970, 973 (2d Dist. 1957); Welsh v. Old Dominion Bank, 229 A. 2d 455, 456 (D. C. App. 1967); Levin v. Singer, 227 Md. 47, 57-60, 175 A. 2d 423, 428-430 (1961); Fireman’s Fund Indemnity Co. v. Caruso, 252 Minn. 435, 439-441, 90 N. W. 2d 302, 305-306 (1958); Durrett v. Smith, 358 S. W. 2d 261, 263 (Mo. App. 1962). The Golombosky case has been applauded by the commentators. See J. MacLachlan, Bankruptcy 111 (1956); Note, Fraudulent Financial Statements and Section 17 of the Bankruptcy Act—The Creditor’s Dilemma, 1967 Utah L. Rev. 281, 288-290, 296; Developments in the Law—Res Judicata, 65 Harv. L. Rev. 818, 885 (1952); Comment, 60 Harv. L. Rev. 638 (1947); Comment, 33 Va. L. Rev. 508 (1947). Cf. 8 H. Remington, Bankruptcy Law 186 (6th ed. 1955) (contrary decisions are sound only when applied to the “typical ‘afterthought’ and harassment case”). But see Note, 21 J. Nat. Assn. of Referees in Bankruptcy 94 (1947).
      Other States, however, continued to apply res judicata and refused to admit additional evidence. See Miller v. Rush, 155 Colo. 178, 188, 393 P. 2d 565, 571 (1964); Security National Bank v. Boccio, 60 Misc. 2d 547, 548, 303 N. Y. S. 2d 610, 611 (Nassau Cty. 1969); Universal C. I. T. Credit Corp. v. Woodmansee, 213 Tenn. 429, 437, 374 S. W. 2d 386, 390 (1964); Beehive State Bank v. Buntine, 17 Utah 2d 351, 352, 411 P. 2d 967, 968 (1966); Northey v. Vandermark, 66 Wash. 2d 173, 176, 401 P. 2d 873, 875-876 (1965).
      The state decisions predating Golombosky are close to unanimity in adhering to res judicata. See Aetna Casualty & Surety Co. v. Sentilles, 160 So. 149, 151 (La. App. 1935); Rice v. Guider, 275 Mich. 14, 18, 265 N. W. 777, 778 (1936); Ehnes v. Generazzo, 19 N. J. Misc. 393, 396, 20 A. 2d 513, 515 (Com. Pl. 1941); Scott v. Corn, 19 S. W. 2d 412, 415 (Tex. Civ. App. 1929), cert. denied, 281 U. S. 736 (1930); Annot., 170 A. L. R. 368 (1947). But see Gehlen v. Patterson, 83 N. H. 328, 331, 141 A. 914, 916 (1928).

       See S. Rep. No. 91-1173, pp. 2-3 (1970); H. R. Rep. No. 91-1502, p. 1 (1970). A statement by Professor Lawrence King, prepared for the National Bankruptcy Conference, included in both the House and Senate Reports and placed in the Congressional Record by Representative Wiggins, said:
      “One of the strongest arguments in support of the bill is that, if the bill is passed, a single court, to wit, the bankruptcy court, will be able to pass upon the question of dischargeability of a particular claim and it will be able to develop an expertise in resolving the problem in particular eases. The State court judges, however capable they may be, do not have enough cases to acquire sufficient experience to enable them to develop this expertise. Moreover, even under the present system, in the last analysis, it is the U. S. Supreme Court which has the ultimate word on the construction of section 17 of the Bankruptcy Act. . . . Since this is a Federal statute, the Federal courts necessarily have the final word as to the meaning of any terms contained therein.” S. Rep. No. 91-1173, p. 9 (1970); H. R. Rep. No. 91-1502, p. 8 (1970); 116 Cong. Rec. 34819 (1970).
      See also S. Rep. No. 91-1173, p. 6 (1970) (letter of Royal E. Jackson, Chief, Division of Bankruptcy, quoting Prof. Charles Seligson).

       So long as a debtor is solvent, the debtor and creditor alike may prefer a simple contract suit to complex tort litigation. Default and consent judgments are common in collection proceedings. For the creditor, the prospect of increased attorney’s fees and the likelihood of driving the debtor into bankruptcy may offset the advantages of exemplary damages or other extraordinary remedies. Bankruptcy deprives the debtor of his creditworthiness and so impairs his ability to repay. In the words of a Shakespearean creditor, fearing the worst:
      “When every feather sticks in his own wing,
      Which Timón will be left a naked Gull,
      Which flashes now a Phoenix.” Timón of Athens, Act 2, Scene 1, in VII The Works of Shakespeare 294 (Henley ed. 1903).
      Nor does body execution aid in the collection of a debt if the debtor needs to be out of jail in order to earn the money to repay the debt.

       H. R. Rep. No. 1698, 57th Cong., 1st Sess., 3, 6 (1902). See 36 Cong. Rec. 1375 (1903).

       This case concerns res judicata only, and not the narrower principle of collateral estoppel. Whereas res judicata forecloses all that which might have been litigated previously, collateral estoppel treats as final only those questions actually and necessarily decided in a prior suit. Montana v. United States, 440 U. S. 147, 153 (1979); Parklane Hosiery Co. v. Shore, 439 U. S. 322, 326 n. 5 (1979); Cromwell v. County of Sac, 94 U. S. 351, 352-353 (1877). If, in the course of adjudicating a state-law question, a state court should determine factual issues using standards identical to those of § 17, then collateral estoppel, in the absence of countervailing statutory policy, would bar relitigation of those issues in the bankruptcy court.
      Because respondent does not contend that the state litigation actually and necessarily decided either fraud or any other question against petitioner, we need not and therefore do not decide whether a bankruptcy court adjudicating a § 17 question should give collateral-estoppel effect to a prior state judgment. In another context, the Court has held that a bankruptcy court should give collateral-estoppel effect to a prior decision. Heiser v. Woodruff, 327 U. S. 726, 736 (1946). The 1970 amendments to the Bankruptcy Act, however, have been interpreted by some ' commentators to permit a contrary result. See 1A J. Moore, J. Mulder, & R. Oglebay, Collier on Bankruptcy § 17.16 [6], p. 1650.2 (14th ed. 1978); Countryman, The New Dischargeability Law, 45 Am. Bankr. L. J. 1, 49-50 (1971). But see 1 D. Cowans, Bankruptcy Law and Practice § 253 (1978).