text:
    No. 77-6534.
    Lyon et ux. v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 77-6565.
    Delay v. Kentucky.
   Ct. App. Ky. Cer-tiorari denied.


text:
    No. 77-6593.
    Carter v. Executive Branch of the United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6606.
    Wright v. Estelle, Corrections Director.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 77-6633.
    Pierce v. Indiana et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-6672.
    Frist v. Walker et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-689.
    Indiana & Michigan Electric Co. v. City of Mishawaka, Indiana, et al.
   C. A. 7th Cir. Motion of Edison Electric Institute for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 77-1015.
    Prate et al. v. Freedman, City Manager of the City of Rochester, et al.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice White would grant certiorari.


text:
    No. 77-1106.
    O’Brien v. Pennsylvania.
   Sup. Ct. Pa. Certiorari denied.

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


text:
    No. 77-1408.
    Dando Enterprises, Ltd. v. Pritchett et al.
   C. A. 8th Cir. Motion of respondent for damages and certiorari denied.


text:
    No. 77-6325.
    Watson v. United States.
   C. A. 2d Cir. Certiorari denied.

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


text:
    No. 77-959.
    No. 77-5874.
    No. 77-5995.
    No. 77-6079.
    No. 77-6276.
    No. 77-6462.
    Hulver v. United States, Little v. Arkansas, Reda v. United States, Smith v. United States, Phillips v. Olian et al., Begley v. Carter et al.,
   435 U. S. 951; 435 U. S. 957; 435 U. S. 973; 435 U. S. 953; 435 U. S. 975; and 435 U. S. 994. Petitions for rehearing denied.


text:
    May 25, 1978
    No. A-997.
    Douthit v. Georgia.
   Sup. Ct. Ga. Application for stay of execution of the death sentence in this case, presented to Mr. Justice Powell, and by him referred to the Court, denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant the stay.


text:
    May 30, 1978
    No. 77-1150.
    Concerned Citizens of Southern Ohio, Inc., et al. v. Pine Creek Conservancy District et al.
   Affirmed on appeal from D. C. S. D. Ohio.

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


text:
    No. 77-6354.
    Northern v. Department of Human Resources of Tennessee.
   Appeal from Sup. Ct. Tenn. dismissed as moot.


text:
    No. 77-5063.
    Scott et ux. v. Federal National Mortgage Assn.
   Appeal from Sup. Ct. Mo. dismissed for want of substantial federal question.

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


text:
    No. 77-6217.
    Stacy v. Florida.
   Appeal from Sup. Ct. Fla. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of cer-tiorari, certiorari denied.


text:
    No. 77-371.
    Shirley et al. v. Retail Store Employees Union et al.
   Sup. Ct. Kan. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Sears, Roebuck & Co. v. San Diego County District Council of Carpenters, ante, p. 180.


text:
    No. A-967.
    Der-Rong Chour v. Ferro, District Director, Immigration and Naturalization Service, et al.
   C. A. 2d Cir. Application for stay of deportation, presented to Mr. Justice Brennan, and by him referred to the Court, denied.

The Chief Justice, Mr. Justice Marshall, and Mr. Justice Powell would reject the application since it was not signed by counsel.


text:
    No. 77-6727.
    Green v. Lee, Governor of Maryland, et al.
   Motion for leave to file petition for writ of habeas corpus denied.


text:
    No. 77-6555.
    Green v. Hunter, U. S. District Judge.
   Motion for leave to file petition for writ of mandamus denied.


text:
    No. 77-1119.
    Orr v. Orr.
   Appeal from Ct. Civ. App. Ala. Probable jurisdiction noted.


text:
    No. 77-1177.
    Scott v. Illinois.
   Sup. Ct. Ill. Certiorari granted.


text:
    No. 77-1337.
    Nevada et al. v. Hall et al.
   Ct. App. Cal., 1st App. Dist. Certiorari granted.


text:
    No. 77-1388.
    Massachusetts v. White.
   Sup. Jud. Ct. Mass. Certiorari granted.


text:
    No. 77-123.
    Local No. 757, Ice Cream Drivers & Employees Union, et al. v. Barclay’s Ice Cream Co., Ltd.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 77-1171.
    LaThrop et ux. v. Bell Federal Savings & Loan Assn.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 77-1193.
    Stearsman v. United States.
   Ct. Cl. Cer-tiorari denied.


text:
    No. 77-1197.
    Pulawa et al. v. Hawaii.
   Sup. Ct. Hawaii. Certiorari denied.


text:
    No. 77-1217.
    Simkovich v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1239.
    First National Bank of Akron v. Judicial Panel on Multidistrict Litigation et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1247.
    Gibson v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1293.
    Peterson v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-1310.
    Ricco v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1321.
    Palumbo et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1331.
    National Citizens Committee for Broadcasting v. Federal Communications Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-1338.
    No. 77-6384.
    Mummert v. United States; and Reynoso-Ulloa v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1429.
    Antill v. Sigman.
   Sup. Ct. Ga. Certio-rari denied.


text:
    No. 77-1431.
    Frink v. Frink.
   Super. Ct. N. J. Certio-rari denied.


text:
    No. 77-1434.
    St. Louis-San Francisco Railway Co. v. Griffith.
   Ct. App. Mo., St. Louis Dist. Certiorari denied.


text:
    No. 77-1436.
    Setchell v. Anoka County, Minnesota, Sheriff’s Civil Service Commission.
   Sup. Ct. Minn. Cer-tiorari denied.


text:
    No. 77-1437.
    Peltz v. Joint Bar Association Grievance Committee for the Second and Eleventh Judicial Districts.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 77-1445.
    Melendy v. United States Postal Service et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-1446.
    Southern Capital Corp. v. Southern Pacific Co. et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-1454.
    Abernathy, Administrator v. Schenley Industries, Inc., et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-1456.
    Peck v. Dunn et al.
   Sup. Ct. Utah. Cer-tiorari denied.


text:
    No. 77-1461.
    Berg v. Growe, Secretary of State of Minnesota, et al.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 77-1516.
    Peltzman v. Central Gulf Lines, Inc.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1555.
    Bensabat v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1602.
    Johnson v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-5737.
    Matthews et al. v. Local Union No. 3, International Union of Operating Engineers, et al.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 77-6216.
    Fellows v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 77-6218.
    Smith, aka Thomas v. Florida.
   Sup. Ct. Fla. Certiorari denied.


text:
    No. 77-6233.
    Wilmore v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6251.
    McAllister v. Garrison, Warden.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6285.
    Allsup v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6286.
    Levine v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-6293.
    Harris v. United States District Court for the District of Kansas.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6388.
    Brown et al. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6393.
    Tierney v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6451.
    Martinez v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6494.
    Gooden v. Harris County Commissioners Court et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6497.
    Sellars v. Busch et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6514.
    Espinoza v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6517.
    Wilson v. Armstrong et al.
   C, A. 6th Cir. Certiorari denied.


text:
    No. 77-6526.
    Jiranek v. Bank of America.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6538.
    Brown v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 77-6545.
    Wilson v. Crisp, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6546.
    Nance v. Union Carbide Corporation, Consumer Products Division.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6554.
    Dawn, dba Game Co. v. Sterling Drug, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6560.
    Scott v. Overburg, Correctional Superintendent.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6562.
    Taylor et al. v. Allen Superior Court, Criminal-Felony Division.
   Ct. App. Ind. Certiorari denied.


text:
    No. 77-6564.
    Scherer v. Wolff, Warden.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6584.
    McNeal v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6587.
    Eldridge v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6623.
    Schmitz v. United States District Court for the Central District of California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6629.
    Frazee v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6634.
    James v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6643.
    Nunez-Chavez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6647.
    Davis v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6653.
    Greathouse v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-6655.
    Nunez v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6659.
    Supplee v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6674.
    Smith v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6681.
    Bettker v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6687.
    Davis v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6688.
    Snead v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 76-1523.
    Swoap, Director, Department of Benefit Payments of California v. Garcia et al.
   Ct. App. Cal., 2d App. Dist. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.,

Mr. Justice Stewart would grant certiorari.


text:
    No. 76-1799.
    Transcontinental Gas Pipe Line Corp. v. Federal Energy Regulatory Commission.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Stewart and Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 76-1826.
    No. 76-1852.
    No. 76-6978.
    London et al. v. United States; Genco v. United States; and Shade v. United States.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Brennan would grant cer-tiorari.


text:
    No. 76-6637.
    Daviage v. United States.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Brennan would grant cer-tiorari.


text:
    No. 76-6828.
    Fury v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Brennan would grant cer-tiorari.


text:
    No. 77-5291.
    Lee v. United States.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Brennan would grant cer-tiorari.


text:
    No. 77-1077.
    Graves et ux. v. White Mountain Apache Tribe, dba Fort Apache Timber Co., et al.
   Ct. App. Ariz. Certiorari denied.

Mr. Justice Blackmun would grant cer-tiorari.


author: Mr. Justice Brennan,

text:
    No. 77-1226.
    Long v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Brennan,

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

dissenting.

In September 1975, a friend of petitioner in West Germany-mailed petitioner a magazine, entitled Stellungen. A customs officer, assigned to the Post Office opened the envelope containing the magazine and forwarded it to customs officials who determined that the magazine was obscene, seized it, and began forfeiture proceedings against it under 19 U. S. C. § 1305 in the District Court for the Southern District of New York. Petitioner appeared in response to a notice of the impending forfeiture, see 19 CFR § 12.40 (1977), and argued that the magazine was not obscene under standards prevailing in Lancaster, Pa., petitioner’s home and the address to which the magazine was sent. The trial judge agreed with petitioner that the relevant inquiry related to community standards in Lancaster and dismissed the complaint since the United States had failed to produce evidence of the relevant community standard. The Court of Appeals for the Second Circuit reversed, holding that the relevant community standards were those at the port of entry, the Southern District of New York.

1 continue to adhere to the view expressed in my dissent in United States v. 12 200-Ft. Reels of Film, 413 U. S. 123, 138 (1973):

"Whatever the extent of the Federal Government’s power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is . . . clearly overbroad and unconstitutional on its face.”

Accordingly, I would reverse the judgment of the Court of Appeals.

       In addition, the trial court ruled that the procedures afforded under § 1306 were insufficient to satisfy the First Amendment. Cf. Freedman v. Maryland, 380 U. S. 51 (1965). The Court of Appeals disagreed.

       “All persons are prohibited from importing into the United States from any foreign country . . . any obscene book [or] pamphlet . . . and all such articles . . . shall be subject to seizure and forfeiture . . . .”


text:
    No. 77-1253.
    Nimmo et al. v. Grainger et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Powell would grant certiorari.


text:
    No. 77-1330.
    Isakson et al. v. United States et al.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Stevens took no part in the consideration or decision of this petition.


text:
    No. 77-1339.
    Robinson v. City of Birmingham.
   Ct. Crim. App. Ala. Certiorari denied.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted of two separate offenses of knowingly and unlawfully exhibiting an allegedly obscene motion picture film under Birmingham City Ordinance No. 67-2, § 3. He was sentenced to pay a fine of $300 and perform hard labor for the city of Birmingham for 180 days on the first conviction and to pay a fine of $150 and perform hard labor for 90 days on the second. Prior to each trial, petitioner moved to suppress the film involved on the ground that the warrant for the seizure of the film was improper in that the magistrate who issued the warrant had not first viewed the film to ensure that there was probable cause to believe the film was obscene. In each case the motion to suppress was denied and these rulings were affirmed on appeal.

Birmingham City Ordinance No. 67-2, § 3, under which petitioner was convicted, provides:

“It shall be unlawful for any person to knowingly publish, print, exhibit, distribute or have in his possession with intent to distribute, exhibit, sell or offer for sale, in the city or the police jurisdiction thereof, any obscene matter.” Brief in Opposition 3.

Birmingham City Ordinance No. 74-18, which authorizes the issuance of warrants to seize allegedly obscene material, provides:

“Section 1. The following words and terms, shall when used in this ordinance, have the following respective meanings:
“A. ‘Obscene Motion Picture’: A motion picture which to the average person, applying contemporary community standards, the predominant appeal of which motion picture taken as a whole is to prurient interest, that is, a shameful or morbid interest in sexual conduct, nudity or excretion, and depicts or describes in a patently offensive manner sexual conduct, which motion picture taken as a whole lacks serious literary, artistic, political or scientific value.
“Section 2. Search warrants for the seizure as evidence of motion picture films alleged to be obscene as defined herein and to have been exhibited publicly in the City . . . in violation of Ordinance Number 67-2 . . . may be issued by a Recorder or by a Magistrate as hereinafter provided in this ordinance.
“Section 3. Any police officer of the City or other individual who shall accuse any person of publicly exhibiting in the City ... an obscene motion picture film in violation of said Ordinance Number 67-2 . . . may appear before a Recorder or Magistrate and testify under oath to the facts upon which he bases such accusation ....
“Section 4. If such Recorder or Magistrate determines from said affidavit or affidavits . . . that there is probable cause to believe such motion picture film is obscene, he shall proceed to issue a search warrant for the seizure of said motion picture film and a warrant for the arrest of the person or persons accused of publicly exhibiting the same in the City ... in violation of said Ordinance Number 67-2 . . . .” App. to Pet. for Cert. A. 18-A. 20.

As the text of Birmingham’s ordinances suggests, Birmingham has attempted to declare obscene all material that it could constitutionally declare obscene under this Court’s guidelines in Miller v. California, 413 U. S. 15 (1973). See 353 So. 2d 528, 533 (Ala. Crim. App.), cert. denied, 353 So. 2d 534 (Ala. 1977). Birmingham has, moreover, allowed warrants to issue for the seizure of allegedly obscene motion pictures on a showing of probable cause to believe a film is obscene under the Miller standards.

In this Court and in the courts below, petitioner has contended that Ordinance No. 74M8 is unconstitutional because it allows a warrant to issue under the authority of a judicial officer who has not personally seen the allegedly obscene motion picture. This argument is not insubstantial, but I need not address it since I continue to adhere to my view that “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly ‘obscene’ contents.” Paris Adult Theatre I v. Slaton, 413 U. S. 49, 113 (1973) (dissenting opinion). Under this test, Birmingham Ordinance No. 67-2 is unconstitutionally overbroad and invalid on its face. See Miller v. Californa, supra, at 47 (Brennan, J., dissenting). Similarly, Birmingham Ordinance No. 74-18 is also invalid in that it allows the seizure of a film on a showing that cannot, under my view of the First and Fourteenth Amendments, constitute probable cause to believe a crime has been committed. For these reasons, I would grant certiorari and summarily reverse petitioner’s convictions.


text:
    No. 77-1418.
    Consolidated Motor Inns v. Alias Enterprises, Ltd.
   C. A. 5th Cir. Motion of BVA Credit Corp. for leave to file a brief as amicus curiae granted. Certiorari denied.


author: Mr. Justice Marshall,

text:
    No. 77-1490.
    Alford v. Florida.
   Sup. Ct. Fla. Certio-rari denied.

Mr. Justice Marshall,

with whom Mr. Justice Brennan joins,

dissenting.

The issue presented is whether a sentence of death may constitutionally be imposed by a trial judge who has been made “aware” of, but states that he has not “considered,” certain information in a presentence report not revealed to the defendant.

I

Petitioner was convicted by a jury of first-degree murder and rape in 1973. The trial judge, following the jury’s recommendation, sentenced petitioner to death. The Florida Supreme Court affirmed the judgment, 307 So. 2d 433 (1975), and this Court denied certiorari. 428 U. S. 912 (1976). After our decision in Gardner v. Florida, 430 U. S. 349 (1977), the Florida Supreme Court directed the trial judge to file a response “stating whether he imposed the death sentence . . . on the basis of consideration of any information not known to appellant,” and provided that petitioner would have an opportunity to move to vacate the sentence thereafter. The trial judge filed a response, stating that he had not considered any information not known to petitioner in imposing the death penalty.

Petitioner then filed a motion to vacate the death sentence. He alleged that the “confidential evaluation” portion of the presentence report (which defense counsel had obtained after sentencing through clemency proceedings) affirmatively contradicted the trial judge’s response, indicating that prior to sentencing the probation officer had given the judge certain information about petitioner which had not been disclosed to him. In a 4 — 3 decision, the Florida Supreme Court denied petitioner’s motion and upheld the death sentence. 355 So. 2d 108 (1978).

The majority agreed with the State that there is a difference between a trial judge’s being “aware” of and “considering” facts. It purported to find support in Mr. Justice Stevens’ statement in Gardner, supra, at 359-360, written on behalf of himself and two other Members of the Court, that “[i]n those cases in which the accuracy of a report is contested, the trial judge can avoid delay by disregarding the disputed material.” Without further analysis, the majority concluded that “the trial judge complied with the requirements of Gardner and the motion to vacate is denied.”

Justice Boyd, dissenting, argued that any facts of which the trial judge was privately made aware should have been disclosed to defense counsel with an opportunity to refute them. In his view, it was “unconstitutional for courts to impose sentences upon persons convicted of crime without affording the accused persons an opportunity to refute any information known to the sentencing judge.” 355 So. 2d, at 110. Noting that absent such procedures, “incorrect representations, perhaps made in good faith,” could be used by the court in setting punishment, the justice stated: “Such protection is more important in capital cases, where the defendant's life is at stake, than in any other kind of case.” Ibid. Justice Hatchett also dissented, joined by Justices Boyd and Sundberg, arguing that the majority’s distinction between “consideration” and “awareness” was not supported by our decision in Gardner and was inconsistent with the thrust of that opinion. He argued that a trial judge may constitutionally “disregard” material of which he is aware only after presenting it to the defendant for an opportunity to contest facts. 355 So. 2d, at 110.

II

I continue to 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, as I wrote in Gardner v. Florida, supra, at 365, if the State is to be permitted to impose such an irreversible penalty it ought at the least to do so only through procedures that provide the maximum assurance of accuracy and fairness in the sentencing determination. In Gardner, we vacated a Florida death sentence imposed by a judge, in part on the basis of the confidential portion of a presentence report not disclosed to defense counsel. In the instant case, three of the seven justices on the Florida State Supreme Court believed that the procedures followed herein were unfair, unconstitutional, and not in conformity with this Court’s opinion in Gardner. In so important an area as life and death, I should think this factor alone would have persuaded my Brethren to give plenary consideration to the issue.

The due process question raised by the dissents below is a-substantial one. As noted below, “[t]he first paragraph of the confidential evaluation indicates that the sentencing judge 'was made aware of some of [the report’s] facts’ by the [probation] supervisor.” 355 So. 2d, at 109. The trial judge anticipated our decision in Gardner to some extent and attempted to avoid reliance on facts not disclosed to petitioner. But it is not disputed that the judge and the probation supervisor had ex parte communications in this case in which some adverse information about petitioner was .imparted to the judge and not revealed to the petitioner.

In this context, the distinction between “awareness” of adverse facts' and “consideration” of them is one too tenuous on which to make a life turn. Persons acting in complete good faith may attempt to' put out of their minds information received ; with respect to many kinds of decisionmaking, we act on the assumption that they are successful in doing so. Yet we should not be blind to the fact that this “assumption” is often a mere fiction: surely we have all experienced the difficulty in actually excising from our consciousness apparently salient factors that have been brought to our attention. See Lakeside v. Oregon, 435 U. S. 333, 345 (1978) (Stevens, J., dissenting). This is particularly true where, as is alleged to have occurred in the instant case, see n. 6, supra, a sentencing judge is advised ex parte that a defendant who went to trial had admitted to another inmate in the jail that he had committed the crime.

Where imposition of so “unique” a penalty is concerned, a punctilious attempt to achieve complete, factual accuracy in decisionmaking should be insisted upon. This can be achieved only by requiring complete disclosure of every fact relating to the defendant that has come to the sentencing judge's attention, and by affording the defendant a complete opportunity to contest and rebut those facts. The spirit of our holding in Gardner requires no less. I agree with the three dissenting justices below that this standard has not been met here.

For these reasons, I dissent from the denial of certiorari.

       At that time, Mr. Justice BreNNAN and I dissented from the denial of certiorari. We noted there:
      “Petitioner contends that his right of confrontation, guaranteed by the Sixth and Fourteenth Amendments, was violated because the transcript of the preliminary hearing testimony of a material prosecution witness was read at his trial and the prosecution, although it was aware that the witness would leave Florida prior to the trial, failed to use available procedures to assure the witness’ presence at trial or to depose the witness before the trial began. See Barber v. Page, 390 U. S. 719 (1968). On the record in this case, we would grant certiorari and set the case for oral argument.
      “In any event, the imposition and carrying out of the death penalty in this case constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Gregg v. Georgia, [428 U. S. 153,] 227 (BreNNAN, J., dissenting); id., p. 231 (Marshall, J., dissenting). We would therefore grant certiorari and vacate the judgment in this case insofar as it leaves undisturbed the death sentence imposed.”

       The judge’s “response” stated that he “did not consider information unknown to the Appellant in conjunction with any matter in this case.” App. to Pet. for Cert. A12. Attached to this response was a letter written by the judge prior to sentencing, to the probation officer who prepared the presentence report. The letter, which appears in App. II to Response to Pet. for Cert., is reproduced in its entirety below:
      September 12, 1973
      Joel Padgett, Probation Supervisor
      Probation and Parole Department
      County Courthouse
      West Palm Beach, Florida
      Re: Learie Leo Alford
      Dear Joel:
      I know you have expended a great deal of time, effort and conscientious evaluation in the preparation of the pre-sentence report concerning Learie Leo Alford. I recall that you indicated to me that the revelation of the confidential section of this report to the defense would be damaging and compromising to sources who had confided in you. I respect your judgment in this.
      I feel, however, in a case in which the jury has recommended the supreme penalty known to our law, that there well may be a constitutional right to disclosure of this confidential section to the defendant. As far as I know, there is not yet a judicial decision on what the meaning of 'factual material’ in Rule 3.713 (b) may be. I feel that if I cannot release the confidential section to the defendant, I should not review it myself in this particular case. I know that this means that I shall not have the benefit of a major portion of your work in this report because of this view and I regret that this is so.
      Accordingly, do not deliver that section of your report to me.
      Thank you.
      Very truly yours, MARVIN MOUNTS, JR., Circuit Judge.

       The Florida Supreme Court apparently mistakenly believed that Mr. Justice SteveNS was speaking for the Court. See 355 So. 2d, at 109.

       The majority noted that a judge may be aware of proffered inadmissible evidence without considering it. Ibid.

       See n. 2, supra, and n. 6, injra.

       The papers before us do not clearly reflect what particular facts the trial judge was made aware of. Petitioner has annexed to his petition an extract from a “Deposition of Joel Padgett,” the probation supervisor who wrote the confidential evaluation. App. to Pet. for Cert. A15. Respondent states that the deposition was apparently taken after the motion to vacate the death sentence was filed, and has not been made part of the record or served upon counsel for respondent, Response to Pet. for Cert. 7; respondent does not, however, dispute the accuracy of its contents. In this deposition, Padgett stated that he told the judge over the telephone that a confidential informant who had been in the county jail with petitioner advised him that petitioner was involved with prostitutes. Padgett also stated that he might have told the judge on the phone that the informant stated that petitioner had admitted to him his guilt. At some point in their telephone conversation, Padgett testified, the judge had cut him off, saying he did not want to hear any more.

       Since petitioner’s defense at trial was that of alibi, receipt of such information might have influenced the judge to enhance the sentence on the ground that the defendant deliberately permitted false testimony to be presented on his behalf. Cf. United States v. Hendrix, 505 F. 2d 1233 (CA2 1974), cert. denied, 423 U. S. 897 (1975).

       Sadly, this case once again illustrates the fallacy of the premise upon which some of my Brethren sustained the Florida death penalty statute in Proffitt v. Florida, 428 U. S. 242 (1976) — that the statute’s procedures would eliminate inaccuracy, unfairness, and arbitrariness in the imposition of the death sentence.


text:
    No. 77-1510.
    Surety Title Insurance Agency, Inc. v. Virginia State Bar.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice White would grant certiorari.


text:
    No. 77-1050.
    No. 77-1140.
    No. 77-1188.
    No. 77-1358.
    No. 77-6149.
    No. 77-6244.
    No. 77-6299.
    DeKam et al. v. City of Southfield et al., Doyle v. Board of Fire & Police Commissioners of the Village of Schaumberg, Breza v. City of Trimont, Gaetano et al. v. Oberdorfer, U. S. District Judge, Harper v. Duffy, Marschall et ux. v. Kristensen et al., Plemons v. Estelle, Corrections Director,
   435 U. S. 919; 435 U. S. 970; 435 U. S. 963; 435 U. S. 967; 435 U. S. 963; 435 U. S. 963; and 435 U. S. 998. Petitions for rehearing denied.


text:
    June 5, 1978
    No. 77-1376.
    United States v. Georgia et al.
   Affirmed on appeal from D. C. N. D. Ga.

Mr. Justice Brennan and Mr. Justice Marshall would vacate the judgment and remand the case for further consideration in light of United States v. Board of Commissioners of Sheffield, Alabama, 435 U. S. 110 (1978).


text:
    No. 77-1450.
    Bang et al. v. Noreen et al.
   Affirmed on appeal from D. C. Minn.


text:
    No. 77-1472.
    Pena v. Southern Pacific Transportation Co.
   Appeal from Ct. Civ. App. Tex., 8th Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, cer-tiorari denied.


text:
    No. 77-1606.
    Russell et al. v. Parker et al.
   Appeal from Ct. App. Cal., 1st App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-1485.
    Hilligoss et al. v. LaDow, Mayor of Kokomo, et al.
   Appeal from Ct. App. Ind. dismissed for want of substantial federal question.


text:
    No. 77-497.
    New Orleans Public Service, Inc. v. United States.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Marshall v. Barlow’s, Inc., ante, p. 307.


text:
    No. 77-605.
    Mississippi Power & Light Co. v. United States.
   C. A. 5th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Marshall v. Barlow’s, Inc., ante, p. 307.


text:
    No. 77-557.
    No. 77-606.
    No. 77-622.
    Consolidation Coal Co. v. United States; Marks v. United States; and Zitko v. United States.
   C. A. 6th Cir. Certiorari granted, judgment vacated, and cases remanded for further consideration in light of Marshall v. Barlow’s, Inc., ante, p. 307; and Michigan v. Tyler, ante, p. 499.


text:
    No. 77-1270.
    United States v. Labriola et al.
   C. A. 2d Cir. Motions of respondents for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of United States v. Mauro, ante, p. 340.


text:
    No. A-1005.
    Little v. Ciuros, Correction Commissioner.
   C. A. 2d Cir. Application for stay, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. D-135.
    In re Disbarment of Kutza.
   It is ordered that William Henry Kutza, of Fort Myers, Fla., 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. 77-747.
    Allied Structural Steel Co. v. Spannaus, Attorney General of Minnesota, et al.
   D. C. Minn. [Probable jurisdiction noted, 434 U. S. 1045.] Motion of Allied Structural Steel Co. for leave to file supplemental brief after argument granted.

Mr. Justice Blackmun took no part in the consideration or decision of this motion.


text:
    No. 76-1309.
    United States v. Caceres.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 77-1327.
    Lake Country Estates, Inc., et al. v. Tahoe Regional Planning Agency et al.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 77-1413.
    Aronson v. Quick Point Pencil Co.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 76-6559.
    Scallion v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-206.
    Kenaan v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-1162.
    No. 77-1189.
    No. 77-1370.
    Jones Transfer Co. et al. v. United States et al.; National Industrial Traffic League v. United States et al.; and Ford Motor Co. v. United States et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1184.
    Perlongo v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 77-1195.
    Wolak v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-1260.
    Atkinson et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-1303.
    Sun Oil Co. v. Commissioner of Internal Revenue.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1318.
    Western Union International, Inc. v. Federal Communications Commission et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1324.
    Anderson, Clayton & Co. v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1336.
    Hamilton v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1347.
    International Brotherhood of Electrical Workers, Local 1547, AFL-CIO v. National Labor Relations Board.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-1352.
    Littleton v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1356.
    Flecha et al. v. Marshall, Secretary of Labor, et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-1372.
    Interstate Motor Freight System v. Interstate Commerce Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-1398.
    Fineman v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1443.
    Melia v. Califano, Secretary of Health, Education, and Welfare.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1451.
    Young v. Board of Trustees of the University of Toledo et al.
   Ct. App. Ohio, Lucas County. Certiorari denied.


text:
    No. 77-1453.
    Birge v. Georgia.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 77-1459.
    Sun Publishing Co. v. Stevens.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 77-1462.
    Sunshine Realty, Inc., et al. v. Cuyahoga County Board of Revision et al.
   Ct. App. Ohio, Cuyahoga County. Certiorari denied.


text:
    No. 77-1475.
    No. 77-1484.
    Electronics Corporation of America v. Scully Signal Co.; and Scully Signal Co. v. Electronics Corporation of America.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-1479.
    Plunkett v. City of Lakewood.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-1482.
    Autohaus Brugger, Inc. v. Saab Motors, Inc., et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1494.
    Hinckley Plastic, Inc. v. Reed-Prentice Division Package Machinery Co. et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 77-1496.
    Houser, dba Houser Automotive v. District No. 9, International Association of Machinists & Aerospace Workers et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-1522.
    Alexander et al. v. Aero Lodge No. 735, International Association of Machinists & Aerospace Workers, AFL-CIO, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-1564.
    Southpark Square, Ltd. v. City of Jackson, Mississippi, et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1596.
    Garmon et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1605.
    Eisenberg v. Board of Wisconsin State Bar Commissioners.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 77-5252.
    Ridgeway v. United States.
   C. A. 6th Cir.


text:
    No. 77-5582.
    Randall v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-5590.
    Cumberbatch v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-5706.
    Chico et al. v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6215.
    Green et al. v. Hess, Acting Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6221.
    Swinnen v. Dees, Warden.
   Sup. Ct. La. Certiorari denied.


text:
    No. 77-6252.
    Tyler v. Callahan, Assistant Circuit Attorney, City of St. Louis, et al.
   C. A. 8th Cir. Cer-tiorari denied.


text:
    No. 77-6261.
    Anguish v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6307.
    McCravy v. Lane, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6309.
    Fahrig et al. v. Cumming et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6366.
    Erickson v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6387.
    Jaffess v. Schaffner et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6389.
    Partain v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6410.
    Sluk v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6416.
    James v. Hogan, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6425.
    Ochoa v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6432.
    Slocum v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6439.
    Gubelman v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6444.
    Cody v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6459.
    Guarino v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6566.
    Carter v. Property Services of America, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6567.
    Finkelstein v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 77-6572.
    Townsend et al. v. Clover Bottom Hospital & School et al.
   Sup. Ct. Tenn. Certiorari denied.


text:
    No. 77-6582.
    Carter v. Romines et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6585.
    Cloudy v. Indiana.
   Ct. App. Ind. Certiorari denied.


text:
    No. 77-6588.
    Johnson v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 77-6592.
    Montoya v. Killinger et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6596.
    Mason v. Gagnon, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-6601.
    Lehman v. Gabor.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 77-6611.
    Drayer v. Krasner et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6618.
    Lee v. Ewing, Cole, Erdman & Eubank et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6642.
    McGuff v. Alabama et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6678.
    Sanchez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6697.
    Hernandez et al. v. Fogg, Correctional Superintendent.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6700.
    Williamson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6706.
    Hernandez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6707.
    Ramos v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6708.
    Mendez v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6716.
    Hahn v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6719.
    Wall v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6720.
    Bails v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6732.
    Wright v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-593.
    United States v. Sorrell; and United States v. Thompson.
   C. A. 3d Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-326.
    United States v. Ferro.
   C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-970.
    Sonstegard v. City of Kettering.
   Ct. App. Ohio, Montgomery County. Certiorari denied.

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


text:
    No. 77-1058.
    Helgemoe, Warden, et al. v. Meloon.
   C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.

The Chief Justice and Mr. Justice Blackmun would grant the petition and reverse summarily notwithstanding the new statute, N. H. Rev. Stat. Ann., ch. 632-A (Supp. 1977).


text:
    No. 77-1407.
    Kitsis v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied.

Mr. Justice Marshall would grant certiorari.


text:
    No. 77-6400.
    Wiggins v. United States.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 77-6470.
    Smith v. Hopper, Warden.
   Sup. Ct. Ga. Certiorari 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 sentence in this case.


text:
    No. 77-6466.
    Cassidy v. United States.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Brennan, Mr. Justice Stewart, and Mr. Justice White would grant certiorari.


text:
    No. 77-6589.
    Smith v. Connecticut Parole Board et al.
   C. A. 2d Cir. Certiorari and other relief denied.


text:
    No. 77-6703.
    Emerson v. Wainwright, Secretary, Department of Offender Rehabilitation of Florida.
   C. A. 5th Cir. Certiorari denied for failure to file petition within the time provided by 28 U. S. C. § 2101(c).


text:
    No. 77-1013.
    No. 77-1063.
    No. 77-1065.
    No. 77-1241.
    No. 77-5953.
    No. 77-6288.
    No. 77-6345.
    No. 77-6352.
    No. 77-6417.
    No. 77-6430.
    No. 77-6479.
    Puglisi et al. v. United States, Eisenberg v. United States, Lawriw v. United States, Wagner et al. v. Burlington Northern, Inc., et al., Riley v. Illinois, Gibson v. Florida, Apel v. Wainwright, Secretary, Department of Rehabilitation of Florida, Townsley v. Lindsay, Judge, et al., Watkins, dba Beltone Hearing Aid Center v. Lou Bachrodt Chevrolet, Inc., Fermin v. Califano, Secretary of Health, Education, and Welfare, Ricks v. Collins, Warden,
   435 U. S. 968; 435 U. S. 995; 435 U. S. 969; 435 U. S. 996; 435 U. S. 1000; 435 U. S. 1004; 435 U. S. 1009; 435 U. S. 1006; 435 U. S. 999; 435 U. S. 1010; and 435 U. S. 994. Petitions for rehearing denied.


text:
    No. 76-1750.
    Stump et al. v. Sparkman et vir,
   435 U. S. 349. Petition for rehearing denied.

Mr. Justice Brennan took no part in the consideration or decision of this petition.


text:
    June 6, 1978
    No. 77-1395.
    Vetterli et al., Members of Pasadena City Board of Education v. Real, U. S. District Judge, et al.
   Motion for leave to file petition for writ of mandamus dismissed under this Court's Rule 60.


text:
    June 12, 1978
    No. 77-1185.
    Memorial Consultants, Inc. v. Illinois ex rel. Lindberg, Comptroller of Illinois.
   Appeal from App. Ct. Ill., 3d Dist., dismissed for want of substantial federal question.


text:
    No. 77-1535.
    Heilman v. A & M Records, Inc.
   Appeal from Ct. App. Cal., 2d App. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 77-1306.
    Jaques v. State Bar Grievance Administrator.
   Appeal from Sup. Ct. Mich. Judgment vacated and case remanded for further consideration in light of Ohralik v. Ohio State Bar Assn., ante, p. 447.


text:
    No. A-980 (77-6683).
    Campbell v. United States.
   C. A. 6th Cir. Application for bail, presented to Mr. Justice Marshall, and by him referred to the Court, denied.


text:
    No. A-990 (77-1161).
    Drebin et al. v. United States, ante, p. 904.
   Application for extension of time in which to file petition for rehearing, presented to Mr. Justice Brennan, and by him referred to the Court, denied.


text:
    No. A-992.
    Hughes v. Texas.
   Ct. Crim. App. Tex. Application for appointment of counsel to prepare and file petition for writ of certiorari, presented to Mr. Justice Powell, and by him referred to the Court, denied.


author: Mr. Justice Blackmun,

text:
    No. A-1037 (77-1736).
    Smith, President, Village of Skokie, Illinois, et al. v. Collin et al.
   C. A. 7th Cir. Application for stay of mandate or, in the alternative, for stay of enforcement of judgment pending action on petition for certiorari, presented to Mr. Justice Stevens, and by him referred to the Court, denied.

Mr. Justice Blackmun,

with whom Mr. Justice Rehnquist joins,

dissenting.

I feel that the decision of the United States Court of Appeals for the Seventh Circuit is in some tension with this Court’s decision, 26 years ago, in Beauharnais v. Illinois, 343 U. S. 250 (1952). Beauharnais has never been overruled or formally limited in any way. I therefore would grant the stay pending consideration of the applicants’ petition for certiorari, which has now been filed, and pending further order of the Court.


text:
    No. D-95.
    In re Disbarment of Ohralik.
    [For earlier order herein, see 429 U. S. 1035.]
   Disbarment entered.


text:
    No. 76-1694.
    Mobil Oil Corp. v. Lightcap et al.,
   434 U. S. 876. Respondents are requested to file a response to petition for rehearing within 30 days.

Mr. Justice Stewart and Mr. Justice Powell took no part in the consideration or decision of this order.


text:
    No. 77-803.
    Barry, Chairman, Racing and Wagering Board of New York, et al. v. Barchi.
   D. C. S. D. N. Y. [Probable jurisdiction noted, 435 U. S. 921.] Motion of New York Racing Assn., Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 77-753.
    No. 77-754.
    International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Daniel; and Local 705, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, et al. v. Daniel.
   C. A. 7th Cir. [Certiorari granted, 434 U. S. 1061.] Motions for leave to file briefs as amici curiae filed by American Academy of Actuaries, Chamber of Commerce of the United States of America, American Bankers Assn., National Coordinating Committee for Multi-employer Plans, and ERISA Industry Committee, granted.


text:
    No. 77-837.
    No. 77-849.
    New Motor Vehicle Board of California et al. v. Orrin W. Fox Co. et al.; and Northern California Motor Car Dealers Assn. et al. v. Orrin W. Fox Co. et al.
   D. C. C. D. Cal. [Probable jurisdiction noted, 434 U. S. 1060.] Motion of National Automobile Dealers Assn, for leave to file a brief out of time as amicus curiae denied. Motion of appellants in No. 77-849 for additional time for oral argument denied; alternative request for divided argument granted.


text:
    No. 77-1115.
    Lalli v. Lalli, Administratrix, et al.
   Ct. App. N. Y. [Probable jurisdiction noted, 435 U. S. 921.] Motion of Legal Aid Society of New York City et al. for leave to file a brief as amicus curiae granted.


text:
    No. 77-5781.
    Rakas et al. v. Illinois.
   App. Ct. Ill., 3d Dist. [Certiorari granted, 435 U. S. 922.] Motion of Americans for Effective Law Enforcement, Inc., for leave to file a brief as amicus curiae granted.


text:
    No. 77-1254.
    Vance, Secretary of State, et al. v. Bradley et al.
   D. C. D. C. [Probable jurisdiction noted, ante, p. 903.] Motion of appellees to dispense with printing appendix granted.


text:
    No. 77-1202.
    Michigan v. Doran.
   Sup. Ct. Mich. [Certiorari granted, 435 U. S. 967.] Motion of respondent for leave to proceed further herein in forma pauperis granted.


text:
    No. 77-1378.
    Japan Line, Ltd., et al. v. County of Los Angeles et al.
   Appeal from Sup. Ct. Cal. Motion of Sea Land Service, Inc., for leave to file a brief as amicus curiae granted. Further consideration of question of jurisdiction postponed to hearing of case on the merits. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 77-1410.
    Butner v. United States et al.
   C. A. 4th Cir. Certiorari granted.


text:
    No. 77-1489.
    New Jersey v. Portash.
   Super. Ct. N. J. Certiorari granted.


text:
    No. 77-648.
    Federal Energy Regulatory Commission v. Pennzoil Producing Co. et al.
   C. A. 5th Cir. Certiorari granted.

Mr. Justice Stewart and Mr. Justice Powell took no part in the consideration or decision of this petition.


text:
    No. 77-1465.
    No. 77-1491.
    Director, Office of Workers’ Compensation Programs, United States Department of Labor v. Rasmussen et al.; and Geo Control, Inc., et al. v. Rasmussen et al.
   C. A. 9th Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument.


text:
    No. 77-1493.
    Gladstone, Realtors et al. v. Village of Bellwood et al.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 77-1098.
    Bell, Securities Commissioner of Arkansas v. International Trading, Ltd., et al.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 77-1268.
    Palm v. Veterans' Administration of the United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1283.
    Karch v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 77-1322.
    Pro-Football, Inc., et al. v. Hecht et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-1325.
    M & M Leasing Corp. et al. v. Seattle First National Bank et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1326.
    Carter v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1351.
    Oil, Chemical & Atomic Workers International Union, AFL-CIO v. Johns-Manville Products Corp. et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1355.
    McNiff v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1363.
    Bradshaw v. Government of the Virgin Islands.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-1364.
    Central Arkansas Auction Sale, Inc., et al. v. Department of Agriculture et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-1366.
    Giles Lowery Stockyards, Inc., dba Lufkin Livestock Exchange v. Department of Agriculture et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1374.
    C. K. Smith & Co., Inc., et al. v. National Labor Relations Board.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-1405.
    Ramos v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1411.
    Caulfield et al. v. Hirsch, Regional Director, National Labor Relations Board, et al.
   C. A. 3d Cir. Certiorari before judgment denied.


text:
    No. 77-1424.
    Jacobs v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-1442.
    Akers Motor Lines, Inc., of Delaware et al. v. Interstate Commerce Commission et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-1469.
    Carter v. Hawsey, Judge.
   14th Jud. Dist. Ct. La., Calcasieu Parish. Certiorari denied.


text:
    No. 77-1495.
    Miller v. United Association of Journeymen & Apprentices of the Plumbing & Pipe Fitting Industry, Local Union No. 198.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1509.
    Reliance Insurance Co. v. F & D Electrical Contractors, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1524.
    Miller v. American Telephone & Telegraph Co. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-1529.
    Ingram et al. v. Champlin Petroleum Co. et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-1558.
    Cramer v. Metropolitan Federal Savings & Loan Assn.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 77-1591.
    Michigan v. Borman, Judge (Alexander, Real Party in Interest).
   Ct. App. Mich. Certiorari

denied.


text:
    No. 77-1619.
    LaPuma v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-1626.
    No. 77-6747.
    Higgins et al. v. United States; and Swan v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-1627.
    McCoy v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6177.
    Morales v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6204.
    Partee v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 77-6347.
    Cephus v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 77-6372.
    Valenzuela (Delgado) v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6348.
    Black v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6386.
    Dane v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6390.
    Le Brun v. Cupp, Penitentiary Superintendent.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 77-6406.
    Denomie v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6413.
    McRae et al. v. United States Bureau of Prisons et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 77-6438.
    Wilson v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6465.
    Flynn v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6468.
    Miller v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6476.
    Missouri v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 77-6477.
    Robey v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6483.
    Cotton v. United States et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 77-6485.
    Pitts v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6488.
    Burkhart v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6502.
    Antonmarchi v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 77-6516.
    Lentini v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6521.
    Scott v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 77-6549.
    Collins v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6558.
    Magda v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 77-6569.
    Gonzalez v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 77-6575.
    Morris v. Morton-Norwich Products, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6617.
    Wampler v. Oregon.
   Ct. App. Ore. Certiorari denied.


text:
    No. 77-6619.
    Anderson v. Wynne, Clerk of Superior Court, Martin County, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6622.
    Moore v. Wageley, Correctional Superintendent.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6626.
    Doctor v. Ray, Governor of Washington, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-6628.
    Tatum v. Golden et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 77-6630.
    No. 77-6631.
    Smith v. Cowan, Warden; and Randolph v. Cowan, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6632.
    Hendricks v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 77-6637.
    Smith v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 77-6638.
    Moore v. Michigan.
   Sup. Ct. Mich. Certiorari denied.


text:
    No. 77-6639.
    Chapman v. Federal National Mortgage Assn.
   Ct. App. Mich. Certiorari denied.


text:
    No. 77-6649.
    Harris v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 77-6650.
    Stanley v. Florida.
   Dist. Ct. App. Fla., 4th Dist. Certiorari denied.


text:
    No. 77-6686.
    Willis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6705.
    Zuniga-Lara v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6722.
    Kennedy v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 77-6737.
    Burnette v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 77-6741.
    Tanda v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 77-6752.
    Allsup v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 77-1207.
    Blum, Acting Commissioner, Department of Social Services of New York, et al. v. Toomey et ux.
   C. A. 2d Cir. Motion of respondents for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-1251.
    Wainwright, Secretary, Department of Offender Rehabilitation of Florida, et al. v. Demar.
   Sup. Ct. Fla. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 77-1390.
    Alton Box Board Co. et al. v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice White would grant certiorari.


text:
    No. 77-1415.
    Equal Employment Opportunity Commission v. D. H. Holmes Co., Ltd.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 77-1419.
    Bell, Attorney General, et al. v. Socialist Workers Party et al.
   C. A. 2d Cir. Certiorari denied.

The Chief Justice, Mr. Justice White, and Mr. Justice Powell would grant certiorari.


text:
    No. 77-1425.
    Ballew v. Georgia.
   Ct. App. Ga. Certiorari denied.

Mr. Justice Brennan,

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

dissenting.

Petitioner, convicted of distributing obscene materials under Ga. Code § 26-2101 (1975), for a second time asks this Court to decide the question:

“Whether . . . jury instructions on scienter allowing a finding of ‘constructive knowledge’ in an obscenity case are sufficient to meet . . . constitutional minimum standards. . . ?” Pet. for Cert. 2.

In Ballew v. Georgia, 435 U. S. 223 (1978) (Ballew I), which involved petitioner’s earlier conviction under § 26-2101, we granted certiorari to consider, but did not reach, precisely this issue. See Pet. for Cert. in Ballew v. Georgia, O. T. 1977, No. 76-761, p. 2. I see no reason to suppose that this issue is any less worthy of consideration on certiorari now than it was when we accepted it in Ballew I. For this reason, I would grant certiorari. See also Sewell v. Georgia, 435 U. S. 982 (1978) (Brennan, J., dissenting from dismissal of appeal); Teal v. Georgia, 435 U. S. 989 (1978) (same); Robinson v. Georgia, 435 U. S. 991 (1978) (dissenting from vacation of judgment and remand). Barring this, I would grant this petition and summarily reverse. See Ballew I, supra, at 246 (opinion of Brennan, J.); Sanders v. Georgia, 424 U. S. 931 (1976) (dissent from denial of certiorari).


text:
    No. 77-6486.
    Barela v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Stewart, Mr. Justice Blackmun, and Mr. Justice Powell would grant certiorari.


text:
    No. 77-1521.
    Marker et al. v. International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, Inc., et al.
   C. A. D. C. Cir. Motion for leave to file petition for writ of certiorari and/or petition for writ of certiorari denied.


text:
    No. 77-1029.
    No. 77-1068.
    No. 77-1200.
    Clay v. Bomar, Pfister v. Waddy, U. S. District Judge, and Pfister v. Delta Air Lines, Inc., et al., American Association of Councils of Medical Staffs of Private Hospitals, Inc. v. Judges of the United States Court of Appeals for the Fifth Circuit,
   435 U. S. 943; 435 U. S. 995; and 435 U. S. 993. Petitions for rehearing denied.


text:
    No. 77-6265.
    No. 77-6278.
    No. 77-6358.
    No. 77-6359.
    Thompson v. Florida and Surace v. Florida, Knight v. United States District Court for the District of Massachusetts, Siddle v. United States District Court for the Southern District of Ohio et al., Ross v. Hopper, Warden,
   435 U. S. 998; 435 U. S. 1006; 435 U. S. 1006; and 435 U. S. 1018. Petitions for rehearing denied.


author: Mr. Justice Marshall, Circuit Justice.

text:
    LITTLE v. CIUROS, COMMISSIONER OF CORRECTION OF NEW YORK CITY, et al.
    No. A-1007.
    Decided June 7, 1978
   Mr. Justice Marshall, Circuit Justice.

The application for a stay in this case was denied by the Court on June 5,1978. Ante, p. 943.

This new application is based on the following allegation:

“Following this Court’s denial on June 5, 1978, of Petitioner’s original application for the aforesaid stay, counsel for Petitioner has been informed that the Office of the Attorney General of the State of North Carolina has stated publicly that it intends to prosecute Petitioner for the crime of escape upon her return to said jurisdiction.”

In support of this new application it is stated:

“Under the principle of specialty, a demanding country may not try an individual who has been extradicted [sic] for any offense other than that for which extradition was granted, unless the alleged offense was committed after extradition. United States v. Rauscher, 119 U. S. 407 (1886).”

It just so happens that United States v. Rauscher was controlled by a treaty between the United States and Great Britain. Needless to say, there is no treaty involved here.

The application is, therefore, without legal support and is

Denied.


author: Mr. Chief Justice Burger

text:
    BURKS v. UNITED STATES
    No. 76-6528.
    Argued November 28, 1977
    Decided June 14, 1978

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

      Bart C. Durham III argued the cause and filed briefs for petitioner.

      Frank H. Easterbrook argued the cause for the United States pro hac vice. With him on the brief were Acting Solicitor General Friedman, Assistant Attorney General Civiletti, and Michael W. Farrell.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury’s verdict.

I

Petitioner Burks was tried in the United States District Court for the crime of robbing a federally insured bank by use of a dangerous weapon, a violation of 18 U. S. C. § 2113 (d) (1976 ed.). Burks’ principal defense was insanity. To prove this claim petitioner produced three expert witnesses who testified, albeit with differing diagnoses of his mental condition, that he suffered from a mental illness at the time of the robbery, which rendered him substantially incapable of conforming his conduct to the requirements of the law. In rebuttal the Government offered the testimony of two experts, one of whom testified that although petitioner possessed a character disorder, he was not mentally ill. The other prosecution witness acknowledged a character disorder in petitioner, but gave a rather ambiguous answer to the question of whether Burks had been capable of conforming his conduct to the law. Lay witnesses also testified for the Government, expressing their opinion that petitioner appeared to be capable of normal functioning and was sane at the time of the alleged offense.

Before the case was submitted to the jury, the court denied a motion for a judgment of acquittal. The jury found Burks guilty as charged. Thereafter, he filed a timely motion for a new trial, maintaining, among other things, that “[t]he evidence was insufficient to support the verdict.” The motion was denied by the District Court, which concluded that petitioner’s challenge to the sufficiency of the evidence was “utterly without merit.”

On appeal petitioner narrowed the issues by admitting the affirmative factual elements of the charge against him, leaving only his claim concerning criminal responsibility to be resolved. With respect to this point, the Court of Appeals agreed with petitioner’s claim that the evidence was insufficient to support the verdict and reversed his conviction. 547 F. 2d 968 (OA6 1976). The court began by noting that “the government has the burden of proving sanity [beyond a reasonable doubt] once a prima facie defense of insanity has been raised.” Id., at 969. Petitioner had met his obligation, the court indicated, by presenting “the specific testimony of three experts with unchallenged credentials.” Id., at 970. But the reviewing court went on to hold that the United States had not fulfilled its burden since the prosecution’s evidence with respect to Burks’ mental condition, even when viewed in the light most favorable to the Government, did not “effectively rebu[t]” petitioner’s proof with respect to insanity and criminal responsibility. Ibid. In particular, the witnesses presented by the prosecution failed to “express definite opinions on the precise questions which this Court has identified as critical in cases involving the issue of sanity.” Ibid.

At this point, the Court of Appeals, rather than terminating the case against petitioner, remanded to the District Court “for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered.” Ibid. Indicating that the District Court should choose the appropriate course “from a balancing of the equities,” ibid., the court explicitly adopted the procedures utilized by the Fifth Circuit in United States v. Bass, 490 F. 2d 846, 852-853 (1974), “as a guide” to be used on remand:

“[W]e reverse and remand the case to the district court where the defendant will be entitled to a directed verdict of acquittal unless the government presents sufficient additional evidence to carry its burden on the issue of defendant’s sanity. As we noted earlier, the question of sufficiency of the evidence to make an issue for the jury on the defense of insanity is a question of law to be decided by the trial judge. ... If the district court, sitting without the presence of the jury, is satisfied by the government’s presentation, it may order a new trial. . . . Even if the government presents additional evidence, the district judge may refuse to order a new trial if he finds from the record that the prosecution had the opportunity fully to develop its case or in fact did so at the first trial.”

The Court of Appeals assumed it had the power to order this “balancing” remedy by virtue of the fact that Burks had explicitly requested a new trial. As authority for this holding the court cited, inter alia, 28 U. S. C. § 2106, and Bryan v. United States, 338 U. S. 552 (1950). 547 F. 2d, at 970.

II

The United States has not cross-petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect to the claim of insanity. Accordingly, that issue is not open for review here. Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.

Petitioner’s argument is straightforward. He contends that the Court of Appeals’ holding was nothing more or less than a decision that the District Court had erred by not granting his motion for a judgment of acquittal. By implication, he argues, the appellate reversal was the operative equivalent of a district court’s judgment of acquittal, entered either before or after verdict. Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the Fifth Amendment. Therefore, he maintains, it makes no difference that the determination of evidentiary insufficiency was made by a reviewing court since the double jeopardy considerations are the same, regardless of which court decides that a judgment of acquittal is in order.

The position advanced by petitioner has not been embraced by our prior holdings. Indeed, as the Court of Appeals here recognized, Bryan v. United States, supra, would appear to be contrary. In Bryan the defendant was convicted in the District Court for evasion of federal income tax laws. Bryan had moved for a judgment of acquittal both at the close of the Government's case and when all of the evidence had been presented. After the verdict was returned he renewed these motions, but asked — in the alternative — for a new trial. These motions were all denied. The Court of Appeals reversed the conviction on the specific ground that the evidence was insufficient to sustain the verdict and remanded the case for a new trial. Certiorari was then granted to determine whether the Court of Appeals had properly ordered a new trial, or whether it should have entered a judgment of acquittal. In affirming the Court of Appeals, this Court decided, first, that the Court of Appeals had statutory authority, under 28 U. S. C. § 2106, to direct a new trial. But Bryan had also maintained that notwithstanding § 2106 a retrial was prohibited by the Double Jeopardy Clause, a contention which was dismissed in one paragraph:

“Petitioner's contention that to require him to stand trial again would be to place him twice in jeopardy is not persuasive. He sought and obtained the reversal of his conviction, assigning a number of alleged errors on appeal, including denial of his motion for judgment of acquittal. ‘. . . [W]here the accused successfully seeks review of á conviction, there is no double jeopardy upon a new trial. Francis v. Resweber, 329 U. S. 459, 462. See Trono v. United States, 199 U. S. 521, 533-534.” 338 U. S., at 560.

Five years after Bryan was decided, a similar claim of-double jeopardy was presented to the Court in Sapir v. United States, 348 U. S. 373 (1955). Sapir had been convicted of conspiracy by a jury in the District Court. After the trial court denied a motion for acquittal, he obtained a reversal in the Court of Appeals, which held that the motion should have been granted since the evidence was insufficient to sustain a conviction. In a brief per curiam opinion, this Court, without explanation, reversed the Court of Appeals' decision to remand the petitioner’s case for a new trial.

Concurring in the Sapir judgment, which directed the dismissal of the indictment, Mr. Justice Douglas indicated his basis for reversal:

“The correct rule was stated in Kepner v. United States, 195 U. S. 100, at 130, 'It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered . . . .’ If the jury had acquitted, there plainly would be double jeopardy to give the Government another go at this citizen. If, as in the Kepner case, the trial judge had rendered a verdict of acquittal, the guarantee against double jeopardy would prevent a new trial of the old offense. I see no difference when the appellate court orders a judgment of acquittal for lack of evidence.” Id., at 374.

Up to this point, Mr. Justice Douglas’ explication is, of course, precisely that urged on us by petitioner, and presumably would have been applicable to Bryan as well. But the concurrence in Sapir then undertook to distinguish Bryan:

“If petitioner [Sapir] had asked for anew trial, different considerations would come into play, for then the defendant opens the whole record for such disposition as might he just. See Bryan v. United States, 338 U. S. 552.” 348 U. S., at 374. (Emphasis added.)

Shortly after Sapir, in Yates v. United States, 354 U. S. 298 (1957), the Court adopted much the same reasoning as that employed by the Sapir concurrence. In Yates, this Court— without citing Sapir — ordered acquittals for some defendants in the case, but new trials for others, when one of the main contentions of the petitioners concerned the insufficiency of the evidence. As an explanation for the differing remedies, the Court stated:

“We think we may do this by drawing on our power under 28 U. S. C. § 2106, because under that statute we would no doubt be justified in refusing to order acquittal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in the alternative for a new trial as well as for acquittal. See Bryan v. United States, 338 U. S. 552.” 354 U. S., at 328.

The Yates decision thus paralleled Sapir’s concurrence in the sense that both would allow a new trial to correct evidentiary insufficiency if the defendant had requested such relief — even as an alternative to a motion for acquittal. But the language in Yates was also susceptible of a broader reading, namely, that appellate courts have full authority to order a new trial as a remedy for evidentiary insufficiency, even when the defendant has moved only for a judgment of acquittal.

Three years later in Forman v. United States, 361 U. S. 416, (1960), the Court again treated these questions. There aj conviction was reversed by the Court of Appeals due to an improper instruction to the jury, i. e., trial error, as opposed to evidentiary insufficiency. Although the petitioner in Forman had moved both for a new trial and judgment of acquittal, , he argued that a new trial would not be appropriate relief ; since he had requested a judgment of acquittal with respect to ; the specific trial error on which this Court agreed with the j Court of Appeals. Without distinguishing between a reversal j due to trial error and reversal resulting solely from evidentiary j insufficiency, this Court held that a new trial did not involve double jeopardy:

“It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal. United States v. Ball, 163 U. S. 662, 672 (1896). . . . Even though petitioner be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail. Under 28 U. S. C. § 2106, the Court of Appeals has full power to go beyond the particular relief sought. See Ball, and other cases, supra.” Id., at 425.

Until this stage in the Forman opinion the Court seemed to adopt the more expansive implication of Yates, i. e., that an appellate court’s choice of remedies for an unfair conviction— whether reversal be compelled by failure of proof or trial error — would not turn on the relief requested by the defendant. The Forman decision, however, was not entirely free from ambiguity. In the course of meeting the petitioner’s argument that Sapir demanded a judgment of acquittal, the Court noted two differences between those cases. In the first place, “the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence”; in Forman, however, “ ‘[t]he jury was simply not properly instructed.’ ” 361 U. S., at 426. In addition, “Sapir made no motion for a new trial in the District Court, while here petitioner ‘[Forman] filed such a motion. That was a decisive factor in Sapir’s case.” Ibid. (Emphasis added.)

The Court’s holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity. Bryan seemingly stood for the proposition that an appellate court could order whatever relief was “appropriate” or “equitable,” regardless of what considerations prompted reversal. A somewhat different course was taken by the concurrence in Sapir, where it was suggested that a reversal for evidentiary insufficiency would require a judgment of acquittal unless the defendant had requested a new trial. Yates, on the contrary, implied that new trials could be ordered to cure prior inadequacies of proof even when the defendant had not so moved. While not completely resolving these ambiguities, Forman suggested that a reviewing court could go beyond the relief requested by a defendant and order a new trial under some circumstances. In discussing Sapir, however, the Forman Court intimated that a different result might follow if the conviction was reversed for evidentiary insufficiency and the defendant had not requested a new trial.

After the Bryan-Forman line of decisions at least one proposition emerged: A defendant who requests a new trial as one avenue of relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial. Given that petitioner here appealed from a denial of a motion for a new trial — although he had moved for acquittal during trial — our prior cases would seem to indicate that the Court of Appeals had power to remand on the terms it ordered. To reach a different result will require a departure from those holdings.

Ill

It is unquestionably true that the Court of Appeals' decision “represented] a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977). By deciding that the Government had failed to come forward with sufficient proof of petitioner’s capacity to be responsible for criminal acts, that court was clearly saying that Burks’ criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done,- a judgment of acquittal would have been entered and, of course, petitioner could not be retried for the same offense. See Fong Foo v. United States, 369 U. S. 141 (1962); Kepner v. United States, 195 U. S. 100 (1904). Consequently, as Mr. Justice Douglas correctly perceived in Sapir, it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient, see 348 U. S., at 374. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in petitioner’s position and others who would enjoy the benefit of a correct decision by the District Court. See Sumpter v. DeGroote, 552 F. 2d 1206, 1211-1212 (CA7 1977).

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow "the State . . . to make repeated attempts to convict an individual for an alleged offense,” since “[t]he constitutional prohibition against 'double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States, 355 U. S. 184, 187 (1957); see Serfass v. United States, 420 U. S. 377, 387-388 (1975); United States v. Jorn, 400 U. S. 470, 479 (1971).

Nonetheless, as the discussion in Part II, supra, indicates, our past holdings do not appear consistent with what we believe the Double Jeopardy Clause commands. A close reexamination of those precedents, however, persuades us that they have not properly construed the Clause, and accordingly should no longer be followed.

Reconsideration must begin with Bryan v. United States. The brief and somewhat cursory examination of the double jeopardy issue there was limited to stating that “ ‘where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial/ ” 338 U. S., at 560, citing Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 462 (1947), and Trono v. United States, 199 U. S. 521, 533-534 (1905). These two cited authorities, which represent the totality of the Court’s analysis, add little, if anything, toward resolving the double jeopardy problem presented by Bryan. Resweber involved facts completely unrelated to evidentiary insufficiency. There, in what were admittedly “unusual circumstances,” 329 U. S., at 461, the Court decided that a State would be allowed another chance to carry out the execution of one properly convicted and under sentence of death after an initial attempted electrocution failed due to some mechanical difficulty. In passing, the opinion stated: “But where the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial. United States v. Ball, 163 U. S. 662, 672.” Id., at 462. Trono made a similar comment, citing Ball for the proposition that “if the judgment of conviction be reversed on [the defendant’s] own appeal, he cannot avail himself of the once-in-jeopardy provision as a bar to a new trial of the offense for which he was convicted.” 199 U. S., at 533-534.

The common, ancestor of these statements in Resweber and Trono, then, is United States v. Ball, which provides a logical starting point for unraveling the conceptual confusion arising from Bryan and the cases which have followed in its wake. This is especially true since Ball appears to represent the first instance in which this Court considered in any detail the double jeopardy implications of an appellate reversal. North Carolina v. Pearce, 395 U. S. 711, 719-720 (1969).

Ball came before the Court twice, the first occasion being on writ of error from federal convictions for murder. On this initial review, those defendants who had been found guilty obtained a reversal of their convictions due to a fatally defective indictment. On remand after appeal, the trial court dismissed the flawed indictment and procéeded to retry the defendants on a new indictment. They were again convicted and the defendants came once more to this Court, arguing that their second trial was barred because of former jeopardy. The Court rejected this plea in. a brief statement:

“[A] defendant, who procures a judgment against him upon an indictment to be set aside, may be tried anew upon the same indictment, or upon another indictment, for the same offence of which he had been convicted. Hopt v. Utah, 104 U. S. 631; 110 U. S. 574; 114 U. S. 488; 120 U. S. 430; Regina v. Drury, 3 Cox Crim. Cas. 544; S. C. 3 Car. & Kirw. 193; Commonwealth v. Gould, 12 Gray, 171.” 163 U. S., at 672.

The reversal in Ball was therefore based not on insufficiency of evidence but rather on trial error, i. e., failure to dismiss a faulty indictment. Moreover, the cases cited as authority by Ball were ones involving trial errors.

We have no doubt that Ball was correct in allowing a new trial to rectify trial error:

"The principle that [the Double Jeopardy Clause] does not preclude the Government’s retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction is a well-established part of our constitutional jurisprudence.” United States v. Tateo, 377 U. S. 463, 465 (1964) (emphasis supplied).

See United States v. Wilson, 420 U. S. 332, 341 n. 9 (1975); Forman, 361 U. S., at 425. As we have seen in Part II, supra, the cases which have arisen since Ball generally do not distinguish between reversals due to trial error and those resulting from evidentiary insufficiency. We believe, however, that the failure to make this distinction has contributed substantially to the present state of conceptual confusion existing in this area of the law. Consequently, it is important to consider carefully the respective roles of these two types of reversals in double jeopardy analysis.

Various rationales have been advanced to support the policy of allowing retrial to correct trial error, but in our view the most reasonable justification is that advanced by Toteo, supra, at 466:

“It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.”

See Wilson, supra, at 343-344, n. 11; Wade v. Hunter, 336 U. S. 684, 688-689 (1949). In short, reversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case. As such, it implies nothing with respect to the guilt or innocence of the defendant. Rather, it is a determination that a defendant has been convicted through a judicial process which is defective in some fundamental respect, e. g., incorrect receipt or rejection of evidence, incorrect instructions, or prosecutorial misconduct. When this occurs, the accused has a strong interest in obtaining a fair readjudication of his guilt free from error, just as society maintains a valid concern for insuring that the guilty are punished. See Note, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 365, 370 (1964).

The same cannot be said when a defendant’s conviction has been overturned due to a failure of proof at trial, in which case the prosecution cannot complain of prejudice, for it has been given one fair opportunity to offer whatever proof it could assemble. Moreover, such an appellate reversal means that the government’s case was so lacking that it should not have even been submitted to the jury. Since we necessarily afford absolute- finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.

The importance of a reversal on grounds of evidentiary insufficiency for purposes of inquiry under the Double Jeopardy Clause is underscored by the fact that a federal court’s role in deciding whether a case should be considered by the jury is quite limited. Even the trial court, which has heard the testimony of witnesses firsthand, is not to weigh the evidence or assess the credibility of witnesses when it judges the merits of a motion for acquittal. See United States v. Wolfenbarger, 426 F. 2d 992, 994 (CA6 1970); United States v. Nelson, 419 F. 2d 1237, 1241 (CA9 1969); McClard v. United States, 386 F. 2d 495, 497 (CA8 1968); Curley v. United States, 81 U. S. App. D. C. 389, 392, 160 F. 2d 229, 232-233, cert. denied, 331 U. S. 837 (1947). The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury’s finding the defendant guilty beyond a reasonable doubt. See C. Wright, Federal Practice and Procedure § 467, pp. 259-260 (1969); e. g., Powell v. United States, 135 U. S. App. D. C. 254, 257, 418 F. 2d 470, 473 (1969); Crawford v. United States, 126 U. S. App. D. C. 156, 158, 375 F. 2d 332, 334 (1967). Obviously a federal appellate court applies no higher a standard; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury’s decision. See Glasser v. United States, 315 U. S. 60, 80 (1942). While this is not the appropriate occasion to re-examine in detail the standards for appellate reversal on grounds of insufficient evidence, it is apparent that such a decision will be confined to cases where the prosecution’s failure is clear. Given the requirements for entry of a judgment of acquittal, the purposes of the Clause would be negated were we to afford the government an opportunity for the proverbial “second bite at the apple.”

In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person “waives” his right to a judgment of acquittal by moving for a new trial. See Green v. United States, 355 U. S., at 191-198. Moreover, as Forman, 361 U. S., at 425, has indicated, an appellate court is authorized by § 2106 to “go beyond the particular relief sought” in order to provide that relief which would be “just under the circumstances.” Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only “just” remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

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

       Petitioner did not file a post-trial motion for judgment of acquittal, which he was entitled to do under Fed. Rule Crim. Proc. 29 (c).

       Although the Court of Appeals did not cite Davis v. United States, 160 U. S. 469 (1895), that decision would require this allocation of burdens.

       Title 28 U. S. C. § 2106 provides:
      “The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.”

       There is no claim in this case that the trial court committed error by excluding prosecution evidence which, if received, would have rebutted any claim of evidentiary insufficiency.

       When a district court determines, at the close of either side’s case, that the evidence is insufficient, it “shall order the entry of [a] judgment of acquittal . . . .” Fed. Rule Crim. Proc. 29; see C. Wright, Federal Practice and Procedure § 462, p. 245 (1969).

       We recognize that under the terms of the remand in this case the District Court might very well conclude, after “a balancing of the equities,” that a second trial should not be held. Nonetheless, where the Double Jeopardy Clause is applicable, its sweep is absolute. There are no “equities” to be balanced, for the Clause has declared a constitutional policy, based on grounds which are not open to judicial examination.

        Trono arose from a murder prosecution in the Philippines. After a nonjury trial the defendants were acquitted of the crime of murder, but were convicted of the lesser included offense of assault. They appealed to the Supreme Court of the Philippine Islands, which reversed the judgment and entered convictions for murder, increasing their sentences as well. This Court affirmed, although “it seems apparent that a majority of the Court was unable to agree on any common ground for the conclusion that an appeal of a lesser offense destroyed a defense of a former jeopardy on a greater offense for which the defendant had already been acquitted.” Green v. United States, 355 U. S. 184, 187 (1957). Green expressly confined the Trono decision to “its peculiar factual setting,” namely, an interpretation of a “statutory provision against double jeopardy pertaining to the Philippine Islands.” 355 U. S., at 187; see Price v. Georgia, 398 U. S. 323, 327-328, n. 3 (1970).

         Hopt v. Utah, 120 U. S. 430 (1887), was the last of four appeals by a defendant from a murder conviction in the Territory of Utah. On the first three appeals the convictions were reversed and new trials ordered because of trial errors, e. g., improper instruction, 104 U. S. 631 (1882) ; absence of the accused during a portion of the trial, improper hearsay testimony received, and prejudicial instruction, 110 U. S. 574 (1884); and inadequate record due to failure to record jury instructions, 114 U. S. 488 (1885). No claim of evidentiary insufficiency was sustained by the Court, and indeed no discussion of double jeopardy appears. Commonwealth v. Gould, 78 Mass. 171 (1858), was a state case in which a defendant was ordered tried on a superseding indictment, after the original indictment had been challenged. Finally, in the English case, Queen v. Drury, 3 Cox Crim. Cas. 544, 175 Eng. Rep. 516 (Q. B. 1849), the defendants had been given an improper sentence after being found guilty at a trial to which no other error was assigned. The court allowed a retrial, saying:
      “A man who has been tried, convicted and attainted on an insufficient indictment, or on a record erroneous in any other part, is in so much jeopardy literally that punishment may be lawfully inflicted on him, unless the attainder be reversed in a Court of Error; and yet when that is done, he may certainly be indicted again for the same offense, and the rule would be held to apply, that he had never been in jeopardy under the former indictment.” Id., at 546, 175 Eng. Rep., at 520.

       It has been suggested, for example, that an appeal from a conviction amounts to a “waiver” of double jeopardy protections, see Trono v. United States, 199 U. S. 521, 533 (1905); but see Oreen, swpra, at 191-198; or that the appeal somehow continues the jeopardy which attached at the first trial, see Price v. Georgia, supra, at 326; but see Breed v. Jones, 421 U. S. 519, 534 (1975).

       In holding the evidence insufficient to sustain guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. See American Tobacco Co. v. United States, 328 U. S. 781, 787 n. 4 (1946).

       When the basic issue before the appellate court concerns the sufficiency of the Government’s proof of a defendant’s sanity (as it did here), a reviewing court should be most wary of disturbing the jury verdict:
      “There may be cases where the facts adduced as to the existence and impact of an accused’s mental condition may be so overwhelming as to require a judge to conclude that no reasonable juror could entertain a reasonable doubt. But in view of the complicated nature of the decision to be made — intertwining moral, legal, and medical judgments — it will require an unusually strong showing to induce us to reverse a conviction because the judge left the critical issue of criminal responsibility with the jury.” King v. United States, 125 U. S. App. D. C. 318, 324, 372 F. 2d 383, 389 (1967) (footnote omitted).