text:
    No. 74-1623.
    Slone et al. v. Deskins Branch Coal Co. et al.
   Appeal from D. C. E. D. Ky. affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    No. 75-713.
    Gerstein et al. v. Coe et al.
   Affirmed on appeal from C. A. 5th Cir. Planned Parenthood of Central Missouri v. Danforth, ante, p. 52.


text:
    No. 75-772.
    Franklin et al. v. Fitzpatrick, District Attorney of Philadelphia County, et al.
   Affirmed on appeal from D. C. E. p. Pa. Planned Parenthood of Central Missouri v. Danforth, ante, p. 52.


text:
    No. 75-709.
    Beal, Secretary of Welfare of Pennsylvania, et al. v. Franklin et al.
   Appeal from D. C. E. D. Pa. Judgment vacated and case remanded for further consideration in light of Planned Parenthood of Central Missouri v. Danforth, ante, p. 52, Singleton v. Wulff, ante, p. 106, and Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council, 425 U. S. 748.

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


text:
    No. 73-6853.
    Henderson v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 73-6876.
    Noell v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 74-6735.
    Stegmann v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5032.
    Lowery v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5076.
    Armstrong v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5384.
    Vinson v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 73-6875.
    Dillard v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 73-6877.
    Jarrette v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 73-6878.
    Crowder v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 73-7032.
    Honeycutt v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 74-6263.
    Ward v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 74-6733.
    Gordon v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5077.
    McLaughlin v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5091.
    Woods v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5262.
    Simmons v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5281.
    Young v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5426.
    Robbins v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5728.
    Bock v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5792.
    King et al. v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5949.
    Avery v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-5960.
    Carey v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6143.
    Mitchell et al. v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6145.
    Griffin v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6150.
    Spaulding et al. v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6151.
    McZorn v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6168.
    Waddell v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6378.
    Patterson v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6399.
    Dull v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6410.
    Carter v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 75-6686.
    Harrill v. North Carolina.
   Sup. Ct. N. C.


text:
    No. 73-7031.
    Fowler v. North Carolina.
   Sup. Ct. N. C. [Certiorari granted, 419 TJ. S. 963. ] Petitioner in this case was sentenced to death. Imposition and carrying out of the death penalty in this case constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Woodson v. North Carolina, ante, p. 280. Judgment vacated insofar as it leaves undisturbed the death penalty imposed, and case remanded to the Supreme Court of North Carolina for further proceedings.

Anthony G. Amsterdam argued the cause for petitioner. With him on the brief were Jack Greenberg, James M. Nabrit III, Adam Stein, and Charles L. Bector.

Jean A. Benoy, Deputy Attorney General of North Carolina, argued the cause for respondent. With him on the brief was Rufus L. Edmisten, Attorney General.

Solicitor General Bork argued the cause for the United States as amicus curiae. With him on the brief were Acting Assistant Attorney General Keeney, Deputy Solicitor General Randolph, Jerome M. Feit, and Harvey M. Stone.

Briefs of amici curiae were filed by Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, and William E. James, Assistant Attorney General, for the State of California; by Vernon B. Romney, Attorney General, for the State of Utah; by John J. Abt for the National Alliance Against Racist and Political Repression; by Chevene B. King for the National Conference of Black Lawyers; and by Richard A. Heim.


text:
    No. 74-669.
    No. 75-5697.
    Sparks v. North Carolina; and Wetmore v. North Carolina.
   Sup. Ct. N. C. Petitioners in these cases were sentenced to death. Imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Woodson v. North Carolina, ante, p. 280. Motion for leave to proceed in forma pauperis in No. 75-5697 granted. Certiorari granted, judgments vacated, and cases remanded to the Supreme Court of North Carolina for further proceedings in light of Mullaney v. Wilbur, 421 U. S. 684 (1975).

Mr. Justice Brennan would grant certiorari and set cases for oral argument.


text:
    No. 74-6065.
    No. 75-6067.
    No. 75-6123.
    Selman v. Louisiana; Watts v. Louisiana; and Washington v. Louisiana.
   Sup. Ct. La, Petitioners in these cases were sentenced to death. Imposition and carrying out of the death penalty in these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Roberts v. Louisiana, ante, p. 325. Motions for leave to proceed in forma pauperis and certiorari granted. Judgments vacated insofar as they leave undisturbed the death penalty imposed, and cases remanded to the Supreme Court of Louisiana for further proceedings.


text:
    No. 75-647.
    Food Handlers Local 425, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, et al. v. Valmac Industries, Inc.
   C. A. 8th Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of Buffalo Forge Co. v. Steelworkers, ante, p. 397.


text:
    No. 75-696.
    LaVallee, Correctional Superintendent v. Mungo.
   C. A. 2d Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Stone v. Powell, ante, p. 465.


text:
    No. 75-6451.
    Green v. Oklahoma.
   Ct. Crim. App. Okla.


text:
    No. 75-6452.
    Justus v. Oklahoma.
   Ct. Crim. App. Okla.


text:
    No. 75-6453.
    Lusty v. Oklahoma.
   Ct. Crim. App. Okla.


text:
    No. 75-6637.
    Davis v. Oklahoma.
   Ct. Crim. App. Okla.


text:
    No. 75-6638.
    Rowbotham v. Oklahoma.
   Ct. Crim. App. Okla.


text:
    No. 75-6639.
    Williams et al. v. Oklahoma.
   Ct. Crim. App. Okla.


text:
    No. 75-5416.
    Meeks v. Havener, Correctional Superintendent.
   C. A. 6th Cir. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Doyle v. Ohio, 426 U. S. 610.


text:
    No. 75-5983.
    Thompson v. North Carolina.
   Sup. Ct. N. C. Petitioner in this case was sentenced to death. Imposition and carrying out of the death penalty in this case constitute cruel and unusual punishment in violation of Eighth and Fourteenth Amendments. Woodson v. North Carolina, ante, p. 280. Motion for leave to proceed in forma pauperis and certiorari granted. Judgment vacated insofar as it leaves undisturbed the death penalty imposed, and case remanded for further proceedings.

Mr. Justice Brennan and Mr. Justice Marshall would grant certiorari and set case for oral argument.


text:
    No. A-1121.
    Goldswer v. New York.
   Application for stay of execution of judgment of the Court of Appeals of New York, presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. 75-1440.
    Maher, Commissioner of Social Services of Connecticut v. Roe et al.
   Appeal from D. C. Conn. Motion of appellees for leave to proceed in forma pauperis granted. Probable jurisdiction noted.


text:
    No. 74-6593.
    Gardner v. Florida.
   Sup. Ct. Fla. Motion of petitioner for leave to proceed in forma pau- peris granted. Certiorari granted limited to Question II presented by the petition which reads as follows: “Whether nondisclosure of a 'confidential’ portion of a pre-sentence investigation report to a defendant convicted of a capital crime constitutes a denial of the effective assistance of counsel guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States, and of the right to a fair hearing as guaranteed by the Due Process Clause of the Fourteenth Amendment, in a case where the trial judge declines to accept a jury recommendation of a life sentence and instead imposes the death sentence partially on the basis of the pre-sentence report?”


text:
    No. 75-442.
    Poelker, Mayor of St. Louis, et al. v. Doe.
   C. A. 8th Cir. Motions of James R. Butler et al. and Missouri Doctors for Life for leave to file briefs as amici curiae granted. Certiorari granted.


text:
    No. 75-554.
    Beal, Secretary, Department of Public Welfare of Pennsylvania, et al. v. Doe et al.
   C. A. 3d Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 74-6673.
    Lampkins v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.


text:
    No. 75-565.
    Plain Dealer Publishing Co. v. Cleveland Typographical Union No. 53 et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 75-524.
    Hyster Co. v. Employees Association of Kewanee et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 75-1402.
    United States v. Karathanos et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 75-1562.
    United States Steel Corp. v. United Mine Workers of America et al.
   C. A. 5th Cir. Cer-tiorari denied.


text:
    No. 75-5873.
    Prescimone v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-5196.
    House v. Georgia.
   Sup. Ct. Ga.


text:
    No. 74-6207.
    Ross v. Georgia.
   Sup. Ct. Ga.


text:
    No. 74-6547.
    Moore v. Georgia.
   Sup. Ct. Ga.


text:
    No. 74-6557.
    McCorquodale v. Georgia.
   Sup. Ct. Ga.


text:
    No. 74-6736.
    Jarrell v. Georgia.
   Sup. Ct. Ga.


text:
    No. 75-5022.
    Mitchell v. Georgia.
   Sup. Ct. Ga.


text:
    No. 75-6250.
    Smith, aka Machetti v. Georgia.
   Sup. Ct. Ga.


text:
    No. 75-6536.
    Mason v. Georgia.
   Sup. Ct. Ga.


author: Mr. Justice Brennan, Mr. Justice Marshall,

text:
    No. 75-6653.
    Pulliam v. Georgia.
   Sup. Ct. Ga.

Mr. Justice Brennan,

dissenting.

For the reasons stated in my dissenting opinion in Gregg v. Georgia, ante, p. 227, the imposition and carrying out of the death penalty in each of these cases [No. 74^5196 through No. 75-6653] constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. I would therefore grant certiorari in each of these cases and vacate the judgment in each case insofar as it leaves undisturbed the death sentence imposed.

Mr. Justice Marshall,

dissenting.

Because I consider the death penalty to be a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, ante, p. 231 (Marshall, J., dissenting), I would grant certiorari in these cases [No. 74-5196 through No. 75-6653] and vacate the judgments insofar as they leave undisturbed the sentences of death.


author: Mr. Justice Brennan, MR. Justice Marshall,

text:
    No. 74-6168.
    No. 74-6377.
    No. 74-6563.
    No. 75-5209.
    Hallman v. Florida; Sullivan v. Florida; Sawyer v. Florida; and Spenkelink v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Mr. Justice Brennan,

dissenting.

For the reasons stated in my dissenting opinion in Gregg v. Georgia, ante, p. 227, the imposition and carrying out of the death penalty in each of these cases constitute cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. I would therefore grant certiorari in each of these cases and vacate the judgment in each case insofar as it leaves undisturbed the death sentence imposed.

MR. Justice Marshall,

dissenting.

Because I consider the death penalty to be a cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments, see Gregg v. Georgia, ante, p. 231 (Marshall, J., dissenting), I would grant certiorari in these cases and vacate the judgments insofar as they leave undisturbed the sentences of death.


text:
    No. 74-6717.
    Alford v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

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, ante, p. 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.


text:
    No. 75-927.
    Hogge et al. v. Johnson, City Manager of Hampton, Virginia, et al.
   C. A. 4th Cir. Certiorari denied. Mr. Justice Brennan would grant certiorari and, as in Colorado Springs Amusements, Ltd. Y. Rizzo, infra, this page, remand case for determination of petitioners’ constitutional contentions giving appropriate, but not necessarily conclusive, weight to our summary dispositions.


author: Mr. Justice Brennan,

text:
    No. 75-999.
    Colorado Springs Amusements, Ltd., t/a Velvet Touch, et al. v. Rizzo, Mayor of Philadelphia, et al.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Brennan,

dissenting.

We depreciate the precedential weight of summary dispositions in our decisional process, expressly holding in Edelman v. Jordan, 415 U. S. 651, 671 (1974), that such dispositions “are not of the same precedential value as would be an opinion of this Court treating the question on the merits.” I would not require district courts, courts of appeals, and state courts to ascribe any greater precedential weight to summary dispositions than this Court does. Accordingly, I did not join the holding in Hicks v. Miranda, 422 U. S. 332, 344-345 (1975), that “the lower courts are bound by summary decisions by this Court,” which requires state and lower federal courts to treat our summary dispositions of appeals as conclusive precedents regarding constitutional challenges to like state statutes or ordinances.

The Court of Appeals in this case conscientiously followed the procedure mandated by Hicks. Faced with a claim that three appeals from state courts that had been dismissed by this Court “for want of a substantial federal question” compelled rejection of petitioners’ contentions that the Philadelphia ordinance in question violated the Federal Constitution, the Court of Appeals compared in detail the constitutional issues presented here and those presented in the jurisdictional statements filed in this Court in the three earlier cases. 524 F. 2d 571, 576. Hicks, supra, at 345 n. 14, makes such analysis obligatory as a condition to reliance on a summary disposition. Completion of this process satisfied the Court of Appeals that one or more of the earlier jurisdictional statements had presented to this Court constitutional claims addressed to massage parlor ordinances, like those addressed by petitioners to the Philadelphia ordinance, “based upon equal, but reprehensible, treatment of both sexes; an invidiously discriminatory sex-based classification; an irrational exception in the ordinance for massage treatments given under the direction of a medical practitioner; unreasonable abridgement of the right to pursue a legitimate livelihood; and the irrebuttable presumption doctrine.” 524 F. 2d, at 576 (footnotes omitted). Accordingly, the Court of Appeals, without expressing its own views of the merits of the constitutional contentions, but in compliance with the holding of Hicks, decided the constitutional questions adversely to petitioners solely and squarely upon the authority of Smith v. Keator, 419 U. S. 1043 (1974), dismissing for want of a substantial federal question 285 N. C. 530, 206 S. E. 2d 203; Rubenstein v. Township of Cherry Hill, 417 U. S. 963 (1974), dismissing for want of a substantial federal question No. 10,027 (N. J. Sup. Ct., Jan. 29, 1974) (unreported); and Kisley v. City of Falls Church, 409 U. S. 907 (1972), dismissing for want of a substantial federal question 212 Va. 693, 187 S. E. 2d 168.

It may be that the Court of Appeals would have reached the same result in a full and reasoned opinion addressed to the merits of the several constitutional contentions. But we do not know, because the Court of Appeals carefully concealed its views on the premise that Hicks precluded such expression in holding that state and lower federal courts are conclusively bound by summary dispositions. That premise was also accepted by the Court of Appeals for the Fourth Circuit in a case also involving an attack on the constitutionality of a massage parlor ordinance; there the Court of Appeals believed that a substantial federal question deserving elaboration was presented, but read Hicks as foreclosing such elaboration. Hogge v. Johnson, 526 F. 2d 833 (1975).

A panel of the Court of Appeals for the Seventh Circuit recently faced the same dilemma in Sidle v. Majors, 536 F. 2d 1156 (1976). Appellant in that case challenged the Indiana guest statute on equal protection grounds. After discussing the relevant factors, the court stated that “we consider the foregoing considerations to be persuasive that this guest statute contravenes the Equal Protection Clause.” Id., at 1158. The court noted a decision to the contrary, Silver v. Silver, 280 U. S. 117 (1929), but concluded that later equal protection cases had left the premises of that decision no longer valid. 536 F. 2d, at 1159. The court also cited eight State Supreme Court decisions invalidating guest statutes on equal protection grounds. Thus, the court held: “We can find no necessary rational relation to a legitimate state interest (Reed v. Reed, 404 U. S. 71, 75-76 [1971]) that would require us to sustain the legislation.” Ibid. Nevertheless, the court considered itself bound by Cannon v. Oviatt, 419 U. S. 810 (1974), dismissing for want of a substantial federal question 520 P. 2d 883 (Utah), and it therefore rejected the equal protection argument. Finally, because the court was the first Federal Court of Appeals to consider this issue and there was a severe conflict of authority among the state courts, see n. 4, infra, the court remarked:

“The frequency with which the question has arisen and the disagreement among the courts attest to the importance of the issue, its difficulty and the need for conclusive resolution so that the present viability of Silver v. Silver can be authoritatively determined.” 536 F. 2d, at 1160.

Clearly, then, the same reasons that lead us to deny conclusive precedential value in this Court to our summary dispositions require that we allow the same latitude to state and lower federal courts. We accord summary dispositions less precedential value than dispositions by opinion after full briefing and oral argument, because jurisdictional statements, and motions to affirm or dismiss addressed to them, rarely contain more than brief discussions of the issues presented — certainly not the full argument we expect in briefs where plenary hearing is granted. And, of course, neither the statements nor the motions are argued orally. Actually, the function of the jurisdictional statement and motion to dismiss or affirm is very limited: It is to apprise the Court of issues believed by the appellant' to warrant, and by the appellee not to warrant, this Court’s plenary review and decision. Thus each paper is addressed to its particular objective in that regard and eschews any extended treatment of the merits. The appellant often concentrates on trying to persuade us that the appealed decision conflicts with the decision of another court and that the conflict requires our resolution. The motions to dismiss or affirm will try to persuade us to the contrary. This treatment is fully in compliance with our Rules, which call for discussion of whether “the questions presented are so substantial as to require plenary consideration, with briefs on the merits and oral argument,” and not for treatment of the merits. This Court’s Rules 15 (1) (e), (f), 16 (1). Thus, the nature of materials before us when we vote summarily to dispose of a case rarely suffices as a basis for regarding the summary disposition as a conclusive resolution of an important constitutional question, and. we therefore do not treat it as such. For the same reason we should not require that the district courts, courts of appeals, and state courts do so.

There is reason for concern that Hicks will impair this Court’s ability — indeed, responsibility — to adjudicate important constitutional issues. Where a state appellate court rejects a novel federal constitutional challenge, and simultaneously rejects a similar state-law challenge, a dismissal for want of a substantial federal question will definitively resolve that issue of federal law for all courts in this country, as would a summary affirmance from a federal court. Resolution of important issues, in my view, ought not be made solely on the basis of a single jurisdictional statement, without the benefit of other court decisions and the helpful commentary that follows significant developments in the law. One factor that affects the exercise of our discretionary jurisdiction is a desire to let some complex and significant issues be considered by several courts before granting certiorari. Although this discretionary factor cannot be given weight as to cases on our appellate docket, the effect of Hicks, as I have said, is to prevent this Court from obtaining the views of state and lower federal courts on important issues; after dismissal for want of a substantial federal question or summary affirmance of the first case raising a particular constitutional question, no court will again consider the merits of the question presented to this Court. This consequence will be especially unfortunate in the instances in which the first appellants to get to this Court do a poor job of advocacy, which may prevent the Court from appreciating the true significance of the case. Furthermore, although Hicks does not prevent this Court from disregarding its summary dispositions, the binding effect of such dispositions on state and lower federal courts will cause issues to be presented to this Court in future cases without a fully developed record addressed to the merits of the specific case. This effect seriously diminishes our ability to reconsider issues previously disposed of summarily.

Moreover, summary dispositions are rarely supported even by a brief opinion identifying the federal questions presented or stating the reasons or authority upon which the disposition rests. A mere “affirmed” or “dismissed for want of a substantial federal question” appears on the order list announcing the disposition, even in cases some of us believe present major constitutional issues. See, e. g., Doe v. Commonwealth’s Attorney, 425 U. S. 901 (1976) (Brennan, Marshall, and Stevens, JJ., dissenting); Ringgold v. Borough of Collingswood, 426 U. S. 901 (1976) (Brennan, Marshall, and Black-mun, JJ., dissenting). When presented with the contention that our unexplained dispositions are conclusively binding, puzzled state and lower court judges are left to guess as to the meaning and scope of our unexplained dispositions. We ourselves have acknowledged that summary dispositions are “somewhat opaque,” Gibson v. Berryhill, 411 U. S. 564, 576 (1973), and we cannot deny that they have sown confusion.

It is no answer that a careful examination of the jurisdictional statements in prior cases — a task required by Hicks and fully performed by the Court of Appeals in this case — will resolve the ambiguity. As long as we give no explanation of the grounds supporting our summary disposition, such examination cannot disclose, for example, that there is no rationale accepted by a majority of the Court. Plainly, six Members of the Court may vote to dismiss or affirm an appeal without any agreement on a rationale. It is precisely in these areas of the law, however, that there probably is the greatest need for this Court to clarify the law.

In addition, there will always be the puzzling problem of how to deal with cases that are similar, but not identical, to some case that has been summarily disposed of in this Court. Courts should, of course,, not feel bound to treat a summary disposition as binding beyond those situations in which the issues are the same. Hicks v. Miranda, 422 U. S., at 345 n. 14. But there is a significant risk that some courts may try to resolve the ambiguity inherent in summary dispositions by attaching too much weight to dicta or overbroad language contained in opinions from which appeals were taken and resolved summarily in this Court. The Chief Justice has noted that "[w]hen we summarily affirm, without opinion, the judgment of a three-judge district court we affirm the judgment but not necessarily the reasoning by which it was reached.” Fusari v. Steinberg, 419 U. S. 379, 391 (1975) (concurring opinion). The same principle obviously applies to dismissals for want of a substantial federal question. Moreover, it ought to be clear to state and lower federal courts that principles set forth in full opinions cannot be limited merely by a summary disposition; a summary disposition “settles the issues for the parties, and is not to be read as a renunciation by this Court of doctrines previously announced in our opinions after full argument.” Id., at 392. See also Edelman v. Jordan, 415 U. S., at 671.

Further ambiguity is created by the Court’s practice of summarily affirming only in federal cases and dismissing for want of a substantial federal question only in state cases — a practice that, I confess, I have accepted uncritically for nearly 20 years. When we summarily affirm in an appeal from a three-judge district court, we necessarily hold that a three-judge court was required; otherwise, we would be without jurisdiction under 28 TJ. S. C. § 1253. This affirmance, then, encompasses a holding that there was a “substantial federal question” requiring convening of a three-judge court under 28 TJ. S. C. § 2281. Yet, we would “dismiss for want of a substantial federal question” an appeal from a state appellate court raising the identical issue. The language used to dispose of appeals in state cases is clearly misleading; the Court may be saying either that the federal question is insufficiently substantial to support jurisdiction or that a substantial federal question was correctly decided and that this conclusion will not be affected by full briefing and oral argument. Even these alternatives are not mutually exclusive, however, since the six or more Members of the Court voting to dismiss might not agree in a particular case; at least where a majority of the Court votes to dismiss on the latter ground, we ought not create still more confusion by dismissing for want of a substantial federal question. As two leading commentators on the Court’s practice have noted:

“When the Court feels that the decision below is correct and that no substantial question on the merits has been raised, it will affirm an appeal from a federal court, but will dismiss an appeal from a state court 'for want of a substantial federal question.’ Only history would seem to justify this distinction; it would appear more sensible to affirm appeals from both state and federal courts when the reason for the summary disposition is that the decision below is correct.” R. Stern & E. Gressman, Supreme Court Practice 233 (4th ed. 1969).

Even if the Court rejects my view that Hicks should be modified, at a minimum we have the duty to provide some explanation of the issues presented in the case and the reasons and authorities supporting our summary dispositions. This surely should be the practice in cases presenting novel issues or where there is a disagreement among us as to the grounds of the disposition, and I think it should be the practice in every case. In addition, we ought to distinguish in our dispositions of appeals from state courts between those grounded on the insubstantiality of the federal questions presented and those grounded on agreement with the state court’s decision of substantial federal questions. Our own self-interest should counsel these changes in practice. After Hicks we necessarily are under pressure to grant plenary review of state and lower federal court decisions, such as this case and Hogge, that rest exclusively on our unexplained summary dispositions. For since Hicks forecloses future plenary review of the issues in the state and lower federal courts, the issues will never have plenary review if not afforded here.

I would grant the petition for certiorari and remand the case to the Court of Appeals for determination of petitioner’s constitutional contentions giving appropriate, but not necessarily conclusive, weight to our summary dispositions.

       Although Hicks and the instant case involve the precedential effect of dismissals for want of a substantial federal question, the same principles apply to summary affirmances. See Edelman v. Jordan, 415 U. S. 651, 671 (1974). These principles, of course, have no applicability to other forms of summary action, such as dismissals for want of jurisdiction or for want of a properly presented federal quéstion.

       See Cantor v. Detroit Edison Co., ante, at 617-618, n. 5 (Stewart, J., dissenting). I recognize that Hicks was not the first opinion of this Court that noted the precedential effect of certain summary dispositions. But some have viewed Hicks as clarifying this question, and for convenience I shall refer to this principle as the Hicks rule.

        Brown v. Merlo, 8 Cal. 3d 855, 506 P. 2d 212 (1973); Thompson v. Hagan, 96 Idaho 19, 523 P. 2d 1365 (1974); Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362 (1974); Manistee Bank v. McGowan, 394 Mich. 655, 232 N. W. 2d 636 (1975); Laakonen v. Eighth Jud. Dist. Court, 538 P. 2d 574 (Nev. 1975); McGeehan v. Bunch, 88 N. M. 308, 540 P. 2d 238 (1975); Johnson v. Hassett, 217 N. W. 2d 771 (N. D. 1974); Primes v. Tyler, 43 Ohio St. 2d 195, 331 N. E. 2d 723 (1975).

       A further anomaly is that we may have denied certiorari in state and federal cases dealing with a specific issue where the decisions below reach inconsistent results, but these conflicts are then resolved merely by dismissing a single appeal from a state-court decision. This, in my view, is both an unwise and unseemly administration of justice.
      Moreover, of the eight state cases invalidating guest statutes cited by the Seventh Circuit in Sidle, see n. 3, supra, six were based on federal and state grounds, while two were based solely on state law. We therefore had no jurisdiction to review these decisions. Minnesota v. National Tea Co., 309 U. S. 551 (1940). On the other hand, the Sidle court also cited seven state decisions upholding guest statutes, all of which necessarily reject both the state and federal claims. One of these cases was appealed to this Court, and we dismissed the appeal. And now, simply because we declined to review the only one of these 15 cases to come to this Court, an obviously substantial federal question is to be deemed foreclosed. See supra, at 915.

       One striking example is the diverse reading of our summary affirmance in McInnis v. Ogilvie, 394 U. S. 322 (1969), discussed at length in Note, Summary Disposition of Supreme Court Appeals: The Significance of Limited Discretion and a Theory of Limited Precedent, 52 B. U. L. Rev. 373, 381-391 (1972).

       In some instances, lower courts have clearly carried Hicks too far. The Court of Appeals for the Fifth Circuit recently rejected the claim that a city ordinance requiring municipal employees to live within the city violated the employees’ constitutional right to travel. Wright v. City of Jackson, 506 F. 2d 900 (1975). The Court of Appeals relied solely on this Court’s dismissal for want of a substantial federal question of an appeal concerning a similar ordinance. Id., at 902. But, as recognized in McCarthy v. Philadelphia Civ. Serv. Comm’n, 424 U. S. 645 (1976), that dismissal could not be relied upon for this purpose, since the right-to-travel argument had not been considered by the state court and had not been raised in the jurisdictional statement in this Court. The same error was made in Ahern v. Murphy, 457 F. 2d 363 (CA7 1972).


text:
    No. 75-1238.
    Pennsylvania v. Martin.
   Sup. Ct. Pa. Motion for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 75-1482.
    Geisha House, Inc. v. Cullinane, Chief, D. C. Police Department, et al.
   Ct. App. D. C. Certiorari denied. Mr. Justice Brennan would grant certiorari and, as in Colorado Springs Amusements, Ltd. v. Rizzo, supra, remand case for determination of petitioner’s constitutional contentions giving appropriate, but not necessarily conclusive, weight to our summary dispositions.


text:
    No. 75-6112.
    Hart et al. v. United States; and Dixon et al. v. United States.
   C. A. 5th Cir. Cer-tiorari denied.

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


text:
    No. 75-6596.
    Alvord v. Florida.
   Sup.. Ct. Fla. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall,

dissenting.

Petitioner contends that he was unconstitutionally convicted because a statement he made during in-custody interrogation was admitted in evidence during the prosecution’s case-in-chief, despite the absence of any warning to petitioner that if he could not afford an attorney one would be appointed to represent him before questioning. See Miranda v. Arizona, 384 U. S. 436 (1966). 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, ante, at 227 (Brennan, J., dissenting); id., at 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.


author: Per Curiam.

text:
    UNITED STATES v. MORRISON
    No. 75-1534.
    Decided October 12, 1976
   Per Curiam.

On September 27, 1972, a car driven by respondent was stopped by Border Patrol agents at the permanent immigration traffic checkpoint near Truth or Consequences, N. M. An agent detected the odor of marihuana; the car was then searched, disclosing a large quantity of marihuana.

Respondent was charged with possessing marihuana with intent to distribute in violation of 21 U. S. C. §841 (a)(1). He filed a pretrial motion to suppress the marihuana on the ground that the search of his car violated the Fourth Amendment. He waived his right to a jury trial. The motion to suppress was heard during the trial on the merits, and the District Court denied the motion to suppress and found the respondent guilty as charged.

Approximately three months later, we held that a warrantless roving patrol search of vehicles for aliens, conducted without probable cause at a point removed from the border or its functional equivalent, violated the Fourth Amendment. Almeida-Sanchez v. United States, 413 U. S. 266 (1973). The Court of Appeals for the Tenth Circuit thereafter held that Almeida-Sanches should be applied retroactively and that its rationale encompasses searches conducted at fixed trafile checkpoints. United States v. King, 485 F. 2d 353 (1973); United States v. Maddox, 485 F. 2d 361 (1973).

Respondent’s original motion to suppress was then reconsidered by the District Court in the light of King, supra, and Maddox, supra, and the following order was entered:

“[I]t is hereby
“ORDERED that the marihuana which is the subject matter of the charge herein shall be and is hereby suppressed.
“The Court will take appropriate action consistent with this Order if this Order is not appealed by the United States of America or if this Order is affirmed on appeal.”

Thereupon the Government appealed pursuant to 18 U. S. C. § 3731. While this appeal was pending in the Court of Appeals, we held in Bowen v. United States, 422 U. S. 916 (1975); United States v. Peltier, 422 U. S. 531 (1975), that Almeida-Sanchez was not to be applied retro-, actively to Border Patrol searches conducted prior to June 21, 1973. After the Government moved for summary reversal of the District Court’s suppression order, the Court of Appeals, without benefit of briefing or oral argument, dismissed the Government’s appeal for lack of jurisdiction, finding that double jeopardy would bar a retrial. The court, citing United States v. Jenkins, 420 U. S. 358 (1975), felt that double jeopardy would bar because further proceedings involving “the resolution of factual issues going to the elements of the offense charged . . .” would be required.

We cannot agree. In United States v. Wilson, 420 U. S. 332 (1975), we held:

“[W]hen a judge rules in favor of the defendant after a verdict of guilty has been entered by the trier of fact, the Government may appeal from that ruling without running afoul of the Double Jeopardy Clause.” Id., at 352-353.

The holding in Wilson applies to the bench trial here, for, as we stated in United States v. Jenkins, supra:

“Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through that Clause apply to cases tried to a judge....
“A general finding of guilt by a judge may be analogized to a verdict of 'guilty’ returned by a jury.” 420 U. S., at 365-366.

Thus the District Court’s general finding of guilt here is for double jeopardy purposes the same as a jury verdict of guilty. The Government is therefore entitled to appeal the order suppressing the evidence, since success on that appeal would result in the reinstatement of the general finding of guilt, rather than in further factual proceedings relating to guilt or innocence. As in Wilson, there would then remain only the imposition of sentence and the entry of a judgment of conviction pursuant to Fed. Rule Crim. Proc. 32.

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

It is so ordered.

       At that time, this case was still pending before the court for sentencing.

       The Criminal Appeals Act provides in pertinent part:
      “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”


text:
    UNITED STATES v. ROSE
    No. 75-1535.
    Decided October 12, 1976
   Per Curiam.

The operative facts herein are substantially identical to those in United States v. Morrison, ante, p. 1. Respondent’s ear was stopped by Border Patrol agents; a search disclosed marihuana. Respondent lost a motion to suppress and was found guilty after a bench trial. Following this trial, but before sentencing, the District Court, relying upon our decision in Almeida-Sanchez v. United States, 413 U. S. 266 (1973), granted respondent’s motion to suppress. The Court of Appeals for the Tenth Circuit, as it did in Morrison, found the Government’s appeal barred by double jeopardy.

In United States v. Wilson, 420 U. S. 332 (1975), we held that double jeopardy would not bar a Government appeal if success on that appeal would result in the reinstatement of a verdict of guilty. The fact that the order of suppression here occurred after a general finding of guilt rendered by the court in a bench trial, rather than after a return of a verdict of guilty by a jury, is immaterial. Morrison, ante, p. 1. Double jeopardy, therefore, does not bar an appeal by the Government.

We grant the motion to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand to that court for proceedings consistent herewith.

It is so ordered.


text:
    UNITED STATES v. DIETER
    No. 75-1547.
    Decided October 12, 1976
   Per Curiam.

The respondent was indicted in early 1973 for violating 21 U. S. C. § 841 (a) after a search at a permanent immigration traffic checkpoint in New Mexico of a vehicle in which he was a passenger had turned up a substantial quantity of marihuana. His motion to suppress the marihuana was initially denied by the District Court. Thereafter, this Court ruled in Almeida-Sanchez v. United States, 413 U. S. 266 (1973), that a warrantless roving patrol search of a vehicle, conducted without probable cause on a road removed from the border, violated the Fourth Amendment. The Court of Appeals for the Tenth Circuit subsequently ruled in United States v. King, 485 F. 2d 353 (1973), and United States v. Maddox, 485 F. 2d 361 (1973), that Almeida-Sanchez should be applied retroactively. The District Court then reconsidered the respondent’s motion to suppress, and on October 4, 1974, dismissed the indictment.

On October 16, 1974, the Government filed a “Motion to .Set Aside [the] Order of Dismissal” on the ground that the facts in this case were materially different from those in Almeida-Sanchez and that “the Order dismissing the case was entered through inadvertence.” On November 6, 1974, the District Court denied the motion on the ground that it had “no authority or jurisdiction” to set aside the order. On November 7, 1974, the Government filed a notice of appeal.

The Court of Appeals dismissed the appeal, holding that it was untimely because the notice of appeal had not been filed until 34 days after entry of the October 4 order and hence fell outside the 30-day limitation period for a Government appeal from an order dismissing an indictment. The appellate court held that the October 4 order was final for purposes of appeal, notwithstanding the Government’s October 16 motion to set aside that order. In denying the Government’s petition for rehearing and suggestion for rehearing en banc, the court recognized that in United States v. Healy, 376 U. S. 75 (1964), decided at a time when a Government appeal from an order dismissing an indictment was taken directly to this Court rather than to a court of appeals, we held that the 30-day limitation period runs from the denial of a timely petition in the District Court for rehearing, rather than from the date of the order itself. The Court of Appeals reasoned, however, that Healy did not control because the post-dismissal motion there involved “was directed squarely at an alleged error of law committed by the trial court,” whereas in this case the Government’s motion “to set aside on the grounds of mistake or inadvertence was an entirely different species of pleading . . . .” App. to Pet. for Cert. 4A.

The Court of Appeals misconceived the basis of our decision in Healy. We noted there that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the petition is pending. 376 U. S., at 78-79. To have held otherwise might have prolonged litigation and unnecessarily burdened this Court, since plenary consideration of an issue by an appellate court ordinarily requires more time than is required for disposition by a trial court of a petition for rehearing. Id., at 80. The fact that appeals are now routed to the courts of appeals does not affect the wisdom of giving district courts the opportunity promptly to correct their own alleged errors, and we must likewise be wary of imposing added and unnecessary burdens on the courts of appeals. These considerations fully apply whether the issue presented on appeal is termed one of fact or of law, and the Court of Appeals’ law/fact distinction-— assuming such a distinction can be clearly drawn for these purposes — finds no support in Healy. It is true that the Government’s post-dismissal motion was not captioned a “petition for rehearing,” but there can be no doubt that in purpose and effect it was precisely that, asking the District Court to “reconsider [a] question decided in the case” in order to effect an “alteration of the rights adjudicated.” Department of Banking v. Pink, 317 U. S. 264, 266 (1942).

The motion of respondent for leave to proceed in forma pauperis and the petition for certiorari are granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings.

It is so ordered.

       That view was later repudiated by this Court in United States v. Peltier, 422 U. S. 531 (1975).

         Title 18 U. S. C. § 3731 provides in pertinent part that “[i]n a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts,” and that “[t]he appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered . . . .” Federal Rule App. Proc. 4 (b) provides in pertinent part:
      “When an appeal by the government is authorized by statute, the notice of appeal shall be filed in the district court within 30 days after the entry of the judgment or order appealed from. A judgment or order is entered within the meaning of this subdivision when it is entered in the criminal docket.”

       The Court of Appeals’ concern with the lack of a statute or rule expressly authorizing treatment .of a post-dismissal motion as suspending the limitation period ignores our having grounded our decision in Healy, not on any express authorization (which was similarly lacking in Healy), but rather on “traditional and virtually unquestioned practice.” 376 U. S., at 79.


text:
    UNITED STATES v. POMPONIO et al.
    No. 75-1667.
    Decided October 12, 1976
   Per Curiam.

After a jury trial, respondents were convicted of willfully filing false income tax returns in violation of 26 U. S. C. § 7206 (l). Based on its reading of United States v. Bishop, 412 U. S. 346 (1973), the Court of Appeals held that the jury was incorrectly instructed concerning willfulness, and remanded for a new trial. 528 F. 2d 247 (1975). The United States petitioned for certiorari. We reverse.

The respondents were charged with falsifying tax returns in two principal ways: (1) they allegedly caused corporations they controlled to report payments to them as loans, when they knew the payments were really taxable dividends; and (2) they allegedly claimed partnership losses as deductions knowing that the losses were properly attributable to a corporation. Their defense was that these transactions were correctly reported, or at least that they thought so at the time.

The jury was instructed that respondents were not guilty of violating § 7206 (1) unless they had signed the tax returns knowing them to be false, and had done so willfully. A willful act was defined in the instructions as one done “voluntarily and intentionally and with the specific intent to do something which the law forbids, that is to say with [the] bad purpose either to disobey or to disregard the law.” Finally, the jury was instructed that “[g]ood motive alone is never a defense where the act done or omitted is a crime,” and that consequently motive was irrelevant except as it bore on intent. The Court of Appeals held this final instruction improper because “the statute at hand requires a finding of a bad purpose or evil motive.” 528 F. 2d, at 249. In so holding, the Court of Appeals incorrectly assumed that the reference to an “evil motive” in United States v. Bishop, supra, and prior cases meant something more than the specific intent to violate the law described in the trial judge’s instruction.

In Bishop we held that the term “willfully” has the same meaning in the misdemeanor and felony sections of the Revenue Code, and that it requires more than a showing of careless disregard for the truth. We did not, however, hold that the term requires proof of any motive other than an intentional violation of a known legal duty. We explained the meaning of willfulness in § 7206 and related statutes:

“The Court, in fact, has recognized that the word ‘willfully’ in these statutes generally connotes a voluntary, intentional violation of a known legal duty. It has formulated the requirement of willfulness as ‘bad faith or evil intent,’ [United States v.] Murdock, 290 U. S. [389,] 398, or ‘evil motive and want of justification in view of all the financial circumstances of the taxpayer,’ Spies [v. United States], 317 U. S. [492,] 498, or knowledge that the taxpayer ‘should have reported more income than he did.’ Sansone [v. United States], 380 U. S. [343,] 353. See James v. United States, 366 U. S. 213, 221 (1961); McCarthy v. United States, 394 U. S. 459, 471 (1969).” 412 U. S., at 360.

Our references to other formulations of the standard did not modify the standard set forth in the first sentence of the quoted paragraph. On the contrary, as the other Courts of Appeals that have considered the question have recognized, willfulness in this context simply means a voluntary, intentional violation of a known legal duty. United States v. Pohl man, 522 F. 2d 974, 977 (CA8 1975) (en banc), cert. denied, 423 U. S. 1049 (1976); United States v. McCorkle, 511 F. 2d 482, 484-485 (CA7) (en banc), cert. denied, 423 U. S. 826 (1975); United States v. Greenlee, 517 F. 2d 899, 904 (CA3), cert. denied, 423 U. S. 985 (1975); United States v. Hawk, 497 F. 2d 365, 366-369 (CA9), cert. denied, 419 U. S. 838 (1974). The trial judge in the instant case adequately instructed the jury on willfulness. An additional instruction on good faith was unnecessary.

As an alternative ground for ordering a new trial, the Court of Appeals held that respondents were entitled to instructions exonerating them if they believed that the payments to them were loans and that the losses belonged to the partnership, 528 F. 2d, at 250. Our inspection of the record indicates that such instructions were given and that they were adequate.

The respondents' other allegations of error which the Court of Appeals found it unnecessary to reach should be considered by that court in the first instance.

The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       Section 7206 provides in pertinent part:
      “Any person who—
      “(1) . . . Willfully makes and subscribes any return, statement, or other document, which contains or is verified by a written declaration that it is made under the penalties of perjury, and which he does not believe to be true and correct as to every material matter . . .
      “shall be guilty of a felony . . . .”

       We agree with the Court of Appeals that the instructions on this point were “full and complete.” 528 F. 2d 247, 249-250 (1975). The jury was told that the Government contended that respondents “couldn’t claim ' this [the partnership losses] as a deduction . . . because by so doing they would know that they were filing a false report of their total gross income.” Later the jury was instructed that, if they found the loans were incorrectly reported, they must also find that the return was “made willfully and with the specific intent and knowledge at the time they made it that it was in fact a false return.” In explaining intent, the trial judge said that “[t]o establish the specific intent the Government must prove that these defendants knowingly did the acts, that is, filing these returns, knowing that they were false, purposely intending to violate the law.” The jury was told to “bear in mind the sole charge that you have here, and that is the violation of 7206, the willful making of the false return, and subscribing to it under perjury, knowing it not to be true and [sic] to all material respects, and that and that alone.”

       The Court of Appeals in Bishop held that the evidence under the misdemeanor statute “need only show unreasonable, capricious, or careless disregard for the truth or falsity of income tax returns filed.” 455 F. 2d 612, 615 (CA9 1972). This Court rejected the view that this lesser degree of culpability was required for a violation of the misdemeanor statute, and held on the contrary that “Congress used the word ‘willfully’ to describe a constant rather than a variable in the tax penalty formula.” 412 U. S., at 359-360.

       The instructions set forth in n. 2, supra, by requiring knowledge that the returns falsely reported the transactions, implicitly required knowledge of the true nature of the transactions. In addition, the jury was instructed with respect to the loans that “if you do find that they were not bona fide loans then you must next determine whether or not the defendants knew at the time they were withdrawing this money that it was not a loan .... In other words, you should determine whether they knew that, and as I have told you, that is an essential element.” With respect to the partnership losses, the jury was told that the Government claimed that respondents “knew that they couldn’t transfer [a certain asset] to a partnership, and, therefore, when they couldn’t transfer it they couldn’t take the benefits of any losses sustained by the partnership in question . . . .”


text:
    UNITED STATES v. SANFORD et al.
    No. 75-1867.
    Decided October 12, 1976
   Per Curiam.

Respondents were indicted for illegal game hunting in Yellowstone National Park. A jury trial in the United States District Court for the District of Montana resulted in a hung jury, and the District Court declared a mistrial. Four months later, while the Government was preparing to retry them, respondents moved to dismiss the indictment. The District Court, agreeing that the Government had consented to the activities which formed the basis of the indictment, dismissed it. The Government’s appeal pursuant to the Criminal Appeals Act, 18 U. S. C. § 3731, was dismissed by the Court of Appeals because that court thought retrial was barred by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Government petitioned for certiorari, and we vacated the judgment of the Court of Appeals and remanded for further consideration in the light of our intervening decision in Serfass v. United States, 420 U. S. 377 (1975). 421 U. S. 996 (1975).

On remand, the Court of Appeals, considering the trilogy of Serfass, supra, United States v. Wilson, 420 U. S. 332 (1975), and United States v. Jenkins, 420 U. S. 358 (1975), adhered to its prior determination. The Government now seeks certiorari from that ruling.

The reasoning of the Court of Appeals is best summarized by this language from its opinion:

“Here appellees have undergone trial. There is no question but that jeopardy has attached. That being so, and since the proceedings in the district court have ended in appellees’ favor and the consequences of a reversal in favor of the Government would be that appellees must be tried again, we conclude that they would, on retrial, be placed twice in jeopardy.” 536 F. 2d 871, 872 (CA9 1976).

We agree with the Court of Appeals that jeopardy attached at the time of the empaneling of the jury for the first trial of respondents. But we do not agree with that court’s conclusion that by reason of the sequence of events in the District Court the Government would be barred by the Double Jeopardy Clause from retrying respondents. The trial of respondents on the indictment terminated, not in their favor, but in a mistrial declared, sua sponte, by the District Court. Where the trial is terminated in this manner, the classical test for determining whether the defendants may be retried without violating the Double Jeopardy Clause is stated in Mr. Justice Story’s opinion for this Court in United States v. Perez, 9 Wheat. 579, 580 (1824):

“We are of opinion, that the facts constitute no legal bar to a future trial. The prisoner has not been convicted or acquitted, and may again be put upon his defence. We think, that in all cases of this nature, the law has invested courts of justice with the authority to discharge a jury from giving any verdict, whenever, in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.”

The Government’s right to retry the defendant, after a mistrial, in the face of his claim of double jeopardy is generally governed by the test laid down in Perez, supra. The situation of a hung jury presented here is precisely the situation that was presented in Perez, supra, and therefore the Double Jeopardy Clause does not bar retrial of these respondents on the indictment which had been returned against them.

The District Court’s dismissal of the indictment occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun. This case is, therefore, governed by United States v. Serfass, supra, in which we held that a pretrial order of the District Court dismissing an indictment charging refusal to submit to induction into the Armed Torces was appealable under 18 U. S. C. § 3731. The dismissal in this case, like that in Serfass, was prior to a trial that the Government had a right to prosecute and that the defendant was required to defend. Since in such cases a trial following the Government’s successful appeal of a dismissal is not barred by double jeopardy, an appeal from the dismissal is authorized by 18 U. S. C. § 3731.

The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Me. Justice Brennan and Mr. Justice Marshall dissent from summary reversal. They would set the case for oral argument.

       The Criminal Appeals Act provides in pertinent part:
      “In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”

       If the mistrial is declared at the behest of the defendant, the manifest necessity test does not apply. See United States v. Dinitz, 424 U. S. 600 (1976).


text:
    STANDARD OIL CO. OF CALIFORNIA v. UNITED STATES
    No. 72-1251.
    Decided October 18, 1976
   Per Curiam.

Following an eight-day trial, the United States District Court for the Northern District of California enjoined movant from engaging in certain practices found to violate § 3 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 3. 362 F. Supp. 1331 (1973). The judgment was summarily affirmed by this Court. 412 U. S. 924. Movant now seeks to have the judgment set aside on the basis of alleged misconduct by Government counsel and by a material witness who is now prosecuting a treble-damages action against movant. Preliminarily to filing a motion in the District Court pursuant to Fed. Rule Civ. Proc. 60 (b), movant has filed a motion in this Court requesting that we recall our mandate and grant leave to proceed in the District Court. We hold that the District Court may entertain a Rule 60 (b) motion without leave by this Court. We therefore deny the motion to recall our mandate, without prejudice to Standard Oil’s right to proceed in the District Court.

We recognize that in the past both this Court and many Courts of Appeals have required appellate leave before the District Court could reopen a case which had been reviewed on appeal. The requirement derived from a belief that an appellate court’s mandate bars the trial court from later disturbing the judgment entered in accordance with the mandate. See In re Potts, 166 U. S. 263 (1897); Butcher & Sherrerd v. Welsh, 206 F. 2d 259, 262 (CA3 1953), cert. denied, 346 U. S. 925 (1954); Home Indemnity Co. of New York v. O’Brien, 112 F. 2d 387, 388 (CA6 1940). It has also been argued that the appellate-leave requirement protects the finality of the judgment and allows the appellate court to screen out frivolous Rule 60 (b) motions. Tribble v. Bruin, 279 F. 2d 424, 427-428 (CA4 1960); 7 J. Moore, Federal Practice ¶ 60.30 [2], p. 429 n. 27 (1975).

In our view, the arguments in favor of requiring appellate leave are unpersuasive. Like the original district court judgment, the appellate mandate relates to the record and issues then before the court, and does not purport to deal with possible later events. Hence, the district judge is not flouting the mandate by acting on the motion. See 11 C. Wright & A. Miller, Federal Practice and Procedure § 2873, pp. 269-270 (1973). Cf. SEC v. Advance Growth Capital Corp., 539 F. 2d 649, 650 (CA7 1976). Furthermore, the interest in finality is no more impaired in this situation than in any Rule 60 (b) proceeding. Finally, we have confidence in the ability of the district courts to recognize frivolous Rule 60 (b) motions. Indeed, the trial court “is in a much better position to pass upon the issues presented in a motion pursuant to Rule 60 (b),” Wilkin v. Sunbeam Corp., 405 F. 2d 165, 166 (CA10 1968). Accord, Wilson Research Corp. v. Piolite Plastics Corp., 336 F. 2d 303, 305 (CA1 1964); 11 Wright & Miller, supra, at 269.

The appellate-leave requirement adds to the delay and expense of litigation and also burdens the increasingly scarce time of the federal appellate courts. We see no reason to continue the existence of this “unnecessary and undesirable clog on the proceedings,” S. C. Johnson & Son, Inc. v. Johnson, 175 F. 2d 176, 184 (CA2 1949) (Clark, J., dissenting). We therefore deny the motion to recall because the District Court may take appropriate action without this Court’s leave.

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

       It is technically incorrect to refer to our “mandate” because a copy of the judgment was issued in lieu of a mandate. See this Court’s Rule 59 (3). Nevertheless, to avoid confusion with the District Court judgment, we will use the term “mandate” throughout this opinion.

       This Court held that appellate leave was required in In re Potts, 166 U. S. 263 (1897), and spoke approvingly of the practice in Hazel-Atlas Co. v. Hartford Co., 322 U. S. 238, 248 (1944). The appellate-leave requirement has also been approved by several Court of Appeals decisions, in addition to those cited in the paragraph of the text accompanying this footnote. See Wilson Research Corp. v. Piolite Plastics Corp., 336 F. 2d 303, 305 (CA1 1964); Hartman v. Lauchli, 304 F. 2d 431, 432-433 (CA8 1962) (alternative holding). On the other hand, the Tenth Circuit has rejected the requirement, Kodekey Electronics, Inc. v. Mechanex Corp., 500 F. 2d 110, 112-113 (1974); Wilkin v. Sunbeam Corp., 405 F. 2d 165 (1968), and the Seventh Circuit has recently indicated that it now “would probably not go so far as to hold that appellate leave is necessary whenever relief is sought under Rule 60 (b)(5),” SEC v. Advance Growth Capital Corp., 539 F. 2d 649, 650 (1976).


text:
    MOORE v. UNITED STATES
    No. 75-1692.
    Decided October 18, 1976
   Per Curiam.

John David Moore, Jr., was convicted in a bench trial of possession of heroin with intent to distribute it, in violation of 21 U. S. C. §841 (a)(1). In an unpublished order, the Court of Appeals summarily affirmed the judgment of conviction.

In early January 1975, police officers received a tip from an informant that Moore and others were in possession of heroin at “Moore’s apartment.” The police obtained a search warrant and entered the apartment, where they found Moore lying face down near a coffee table in the living room. Also present in the apartment was a woman who was sitting on a couch in the same room. Bags containing heroin were found both on top of and beneath the coffee table, and they were seized along with various narcotics paraphernalia.

At a consolidated hearing on Moore’s motion to suppress evidence and on the merits, the prosecution adduced no admissible evidence showing that Moore was in possession of the heroin in the apartment in which he and the woman were found other than his proximity to the narcotics at the time the warrant was executed. Indeed, one police officer testified that he did not find “any indications of ownership of the apartment.” In his closing argument on the merits, however, the prosecutor placed substantial emphasis on the out-of-court declaration of the unidentified informant:

“[A] confidential informant came to Detective Uribe and said, T have information or I have — through personal observation, know that John David Moore resides at a certain apartment here in El Paso, Texas, and he is in possession of a certain amount of heroin.’ ”

In adjudging Moore guilty, the trial court found that he had been in close proximity to the seized heroin, that he was the tenant of the apartment in question, and that he had, therefore, been in possession of the contraband. In making these findings, the court expressly relied on the hearsay declaration of the informant:

“Information revealed by the confidential informant and relied upon in the preparation of the Affidavit disclosed that John David Moore was the occupant of Apartment # 60, Building # 7, Hill Country Apartments, 213 Argonaut, El Paso, Texas.”

Defense counsel objected to the court’s reliance upon hearsay evidence, but the judge refused to amend this finding except to add the phrase “at the time of the seizure” to the end of the sentence.

There can be no doubt that'the informant’s out-of-court declaration that the apartment in question was “Moore’s apartment,” either as related in the search warrant affidavit or as reiterated in live testimony by the police officers, was hearsay and thus inadmissible in evidence on the issue of Moore’s guilt. Introduction of this testimony deprived Moore of the opportunity to cross-examine the informant as to exactly what he meant by “Moore’s apartment,” and what factual basis, if any, there was for believing that Moore was a tenant or regular resident there. Moore was similarly deprived of the chance to show that the witness’ recollection was erroneous or that he was not credible. The informant’s declaration falls within no exception to the hearsay-rule recognized in the Federal Rules of Evidence, and reliance on this hearsay statement in determining petitioner’s guilt or innocence was error.

Although the only competent evidence of Moore’s possession of the narcotics was his proximity to them in an apartment in which another person was also present and of which he was not shown to be the tenant or even a regular resident, the Solicitor General now argues that the error in admitting the hearsay evidence was harmless. That is far from clear. Whether or not the evidence of proximity alone, when viewed in the light most favorable to the prosecution, could suffice to prove beyond a reasonable doubt that Moore was in possession of the heroin, the fact is that the trial court did not find Moore guilty on that evidence alone.

The Government suggests that Moore’s failure to testify or to adduce any evidence showing “that his presence in the apartment was unrelated to the heroin” highlights the alleged harmlessness of the error, but this suggestion can carry no weight in view of the elementary proposition that the prosecution bore the burden of proving beyond a reasonable doubt every element of the charged offense. Equally unpersuasive is the Government’s argument that the error was probably harmless because Moore was convicted in a bench trial; whatever the merits of that argument as a general proposition, it has a hollow ring in a case where the trial judge expressly relied upon the inadmissible evidence in finding the defendant guilty.

The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court so it may determine whether the wrongful admission of the hearsay evidence was harmless error.

It is so ordered.

The Chief Justice, Mr. Justice Blackmun, and Mr. Justice Rehnquist dissent from summary reversal and would set the case for oral argument.

       Moore moved to require disclosure of the informant’s identity, but the Government opposed the motion and the trial judge denied it.

       Although we do not rely on the Government’s confession of error, we note that the Solicitor General concedes that admission of the hearsay evidence on the question of Moore’s guilt or innocence was improper.

       The Government also urges that petitioner’s failure to suggest in his closing argument that consideration of the hearsay evidence be restricted to the suppression issue constituted a waiver of any objection to the District Judge’s reliance on that evidence in determining guilt or innocence. The Court of Appeals has not passed on this question, and we leave it for resolution by that court on remand.


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    IMMIGRATION AND NATURALIZATION SERVICE v. BAGAMASBAD
    No. 75-1666.
    Decided November 1, 1976
   Per Curiam.

Repondent, an alien who had overstayed her tourist visa by four yéars, applied to have her status adjusted to that of permanent resident alien pursuant to 8 U. S. C. § 1255 (a). That section authorizes the Attorney General in his discretion to change the status of an alien who is physically present in the United States to that of a permanent resident, but only if, among other things, the alien would be eligible for an immigrant visa and admissible into the United States as a permanent resident. The District Director of the Immigration and Naturalization Service (INS) denied respondent’s application as a matter of discretion because she had made serious misrepresentations to the United States consul who had issued her visa. For the same reasons, the immigration judge presiding at a later deportation hearing also declined to exercise his discretion in her favor. Neither the District Director nor the immigration judge addressed himself to whether respondent satisfied the specific statutory requirements for permanent residence. The Board of Immigration Appeals affirmed, finding that the circumstances fully supported the discretionary denial of relief and concluding that “the immigration judge could properly pretermit the question of statutory eligibility and deny the application ... as an exercise of discretion.”

A divided Court of Appeals sitting en banc held that although the immigration judge had properly exercised his discretion to deny respondent’s application, the statute required the judge to make findings and reach conclusions with respect to respondent’s eligibility for admission into this country as a permanent resident. 531 F. 2d 111 (CA3 1976). Disagreeing as we do with the Court of Appeals, we grant the petition for certiorari filed by the INS and the motion by respondent to proceed in forma pauperis and reverse the judgment of the Court of Appeals.

As a general rule courts and agencies are not required to make findings on issues the decision of which is unnecessary to the results they reach. Hirabayashi v. United States, 320 U. S. 81, 85 (1943); Silva v. Carter, 326 F. 2d 315 (CA9 1963), cert. denied, 377 U. S. 917 (1964); Goon Wing Wah v. INS, 386 F. 2d 292 (CA1 1967); De Lucia v. INS, 370 F. 2d 305, 308 (CA7 1966), cert. denied, 386 U. S. 912 (1967). Here, it is conceded that respondent’s application would have been properly denied whether or not she satisfied the statutory eligibility requirements. In these circumstances, absent an express statutory requirement, we see no reason to depart from the general rule and require the immigration judge to arrive at purely advisory findings and conclusions as to statutory eligibility.

In arriving at its contrary conclusion, the Court of Appeals relied on a dictum in Jay v. Boyd, 351 U. S. 345 (1956), which involved a similar provision, 8 U. S. C. § 1254 (a), authorizing the Attorney General in his discretion to grant relief from deportation if certain eligibility requirements are met. In the course of affirming the discretionary denial of relief, the Court indicated that the statute entitled the applicant to a ruling on his eligibility. But the statement followed a reference to immigration regulations which then expressly required a determination of eligibility in each case. 351 U. S., at 352-353. These regulations have been superseded, and the regulation applicable to this case has no such requirement. 8 CFR §242.18 (a) (1976).

The Court of Appeals also thought it advisable to require the making of eligibility findings in 8 U. S. C. § 1255 (a) proceedings to foreclose the possibility that a United States consul to whom an alien might later apply for an immigration visa would mistakenly construe the immigration judge’s exercise of discretion as a finding of statutory ineligibility binding on the consul. But the basis for the immigration judge’s action must be set forth in writing under 8 CFR § 242.18 (a) (1976). Where, as here, his action is discretionary, it will be clear to any United States consul that no eligibility determination has been made. The consul will be free to give such findings as have been made their appropriate weight, if any, see Cartier v. Secretary of State, 165 U. S. App. D. C. 130, 137, 506 F. 2d 191, 198 (1974), cert. denied, 421 U. S. 947 (1975); Talavera v. Pederson, 334 F. 2d 52, 57 (CA6 1964), and to make his own legal judgment on eligibility.

The judgment of the Court of Appeals is reversed.

So ordered.

      That section provides:
      “The status of an alien, other than an alien crewman, who was inspected and admitted or paroled into the United States may be adjusted by the Attorney General, in his discretion and under such regulations as he may prescribe, to that of an alien lawfully admitted for permanent residence if (1) the alien makes an application for such adjustment, (2) the alien is eligible to receive an immigrant visa and is admissible to the United States for permanent residence, and (3) an immigrant visa is immediately available to him at the time his application is approved.” (Emphasis added.)
      If adjustment of status is denied, and the alien leaves the country, such alien is free to apply to a United States consul in the country to which he or she is deported for an immigrant visa. Title 8 U. S. C. § 1255 (a) was enacted so that such aliens would not inevitably be required to leave the country and apply to a United States consul in order to obtain permanent-resident status.


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    HUTTO, ARKANSAS DEPARTMENT OF CORRECTION COMMISSIONER v. ROSS
    No. 75-1726.
    Decided November 1, 1976
   Per Curiam.

In March 1972, in Johnson County, Ark., respondent was charged by information with the crime of embezzlement. With the assistance of counsel, respondent entered into plea negotiations with the prosecuting attorney, and the parties reached an agreement that respondent would enter a plea of guilty on the understanding that the prosecutor would recommend a 15-year prison sentence, with 10 years suspended. Approximately two weeks later, the prosecuting attorney asked respondent’s counsel whether respondent would be willing to make a statement concerning the crimes. Although counsel advised respondent of his Fifth Amendment privilege and informed him that the terms of the negotiated plea bargain were available regardless of his willingness to comply with the prosecuting attorney’s request, the respondent agreed to make a statement confessing to the crime charged. The record discloses that the statement was made under oath in the office of respondent’s counsel, with counsel present, and after respondent had been advised of his rights under Miranda v. Arizona, 384 U. S. 436 (1966).

Respondent subsequently withdrew from the plea bargain, retained new counsel, and demanded a jury trial. The trial court ruled, after hearing evidence outside the presence of the jury, that respondent had confessed voluntarily. The statement was admitted at trial, and respondent was convicted and sentenced to 21 years’ imprisonment. On appeal, the Arkansas Supreme Court affirmed. Ross v. State, 257 Ark. 44, 514 S. W. 2d 409 (1974). This Court denied certiorari. 421 U. S. 931 (1975).

Respondent then filed a petition for a writ of habeas corpus in the United States District Court for the Western District of Arkansas challenging the state court’s finding of voluntariness. 28 U. S. C. § 2254. The District Court held an evidentiary hearing, and on May 23, 1975, denied the petition, agreeing with the state court that the confession was voluntary and therefore admissible. Mobley ex rel. Ross v. Meek, 394 F. Supp. 1219 (1975).

The Court of Appeals for the Eighth Circuit reversed, finding the statement inadmissible because “it . . . was made in connection with an offer to plead guilty and after a [plea] bargain had been agreed upon.” 531 F. 2d 924, 926 (1976). It made no difference, in the court’s view, that the confession was not an express precondition of the plea bargain; the confession became “part and parcel” of the plea bargain because “[the] confession would [not] have been made at the request of the prosecution but for the plea bargain.” Ibid, (emphasis added). Since the plea bargain had not been executed, the court found the confession involuntary and therefore inadmissible.

The only question in this case is whether a confession is per se inadmissible in a criminal trial because it was made subsequent to an agreed upon plea bargain that did not call for such a confession. We conclude that the Court of Appeals erred when it held that any statement made as a result of a plea bargain is inadmissible.

The Court of Appeals reasoned that respondent’s confession was involuntary because it was made “as a result of the plea bargain” and would not have been made “but for the plea bargain.” Id., at 927, 926. But causation in that sense has never been the test of voluntariness. See Brady v. United States, 397 U. S. 742, 749-750 (1970). The test is whether the confession was “ ‘extracted by any sort- of threats or violence, [or] obtained by any direct or implied promises, however slight, [or] by the exertion of any improper influence.’ ” Bram v. United States, 168 U. S. 532, 542-543 (1897); see Brady v. United States, supra, at 753. The existence of the bargain may well have entered into respondent’s decision to give a statement, but counsel made it clear to respondent that he could enforce the terms of the plea bargain whether or not he confessed. The confession thus does not appear to have been the result of “ ‘any direct or implied promises’ ” or any coercion on the part of the prosecution, and was not involuntary. Bram v. United States, supra, at 542-543.

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

Me. Justice Stewaet dissents. Agreeing with the reasoning of the Court of Appeals, he would affirm its judgment.

It is so ordered.

       Counsel for respondent testified at the federal habeas corpus hearing that the prosecuting attorney asked for the statement in order to complete his file "as to actually what occurred and how [respondent] took the money and used it.” 1 Record 37.

       In response to questions asked by the prosecuting attorney at this meeting, respondent said that his confession was voluntary and that he had not been promised anything in return for making the confession. Mobley ex rel. Ross v. Meek, 394 F. Supp. 1219, 1221-1222 (WD Ark. 1975).

       This case does not involve the admissibility at trial of a guilty plea subsequently withdrawn by leave of court. That issue was settled in Kercheval v. United States, 274 U. S. 220 (1927), which held that such pleas could not be used as evidence of guilt at a subsequent trial. Nor does this case involve the admissibility in criminal trials of statements made during the plea negotiation process. See Fed. Rule Crim. Proc. 11 (e) (6); Moulder v. State, 154 Ind. App. 248, 289 N. E. 2d 522 (1972) ; ABA Project on Standards for Criminal Justice, Pleas of Guilty § 3.4 (Approved Draft of 1968),