text:
    No. 73-1722.
    Kaplan v. California.
   App. Dept., Super Ct. Cal., County of Los Angeles. Certiorari denied. Mr. Justice Douglas, being of the view that any state or federal ban on, or regulation of, obscenity is prohibited by the Constitution, Miller v. California, 413 U. S. 15, 42-47 (Douglas, J., dissenting); Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70-73 (Douglas, J., dissenting), would grant certiorari in this case and summarily reverse the judgment.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted in the Municipal Court of Los Angeles of selling an allegedly obscene book in violation of Cal. Penal Code §311.2 (a) (1970), which provided in pertinent part at the time of the alleged offense as follows:

“Every person who knowingly . . . prepares, publishes, or prints, . . . offers to distribute, distributes, or exhibits ... any obscene matter is guilty of a misdemeanor.”

As used in § 311.2, “obscene” means:

“taken as a whole, the predominant appeal of [the matter] to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.” § 311 (a).

On appeal, the Appellate Department of the Superior Court of California for the County of Los Angeles affirmed the conviction. Certification to the Court of Appeal was sought and denied. This Court then granted certiorari, vacated the judgment of the Appellate Department, and remanded for consideration in light of Miller v. California, 413 U. S. 15 (1973), and companion cases. 413 U. S. 115 (1973). On remand, the Appellate Department again affirmed the conviction.

It is 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) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, § 311.2, as it incorporated the definition of “obscene” in § 311 (a), was constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, supra, at 47, I would therefore grant certiorari and, since the judgment of the Appellate Department was rendered after Miller, reverse. In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).

Further, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, 418 U. S. 87, 141 (1974), I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards.

       Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits.


source: Caselaw Access Project

author: Mr. Justice Douglas,

license: Public Domain

text:
    No. 73-1727.
    Cioffi v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas,

with whom Mr. Justice Brennan concurs,

dissenting.

Petitioner was convicted of obstruction of justice and conspiracy to obstruct justice by threatening, intimidating, or otherwise endeavoring to influence a grand jury witness. The witness, one Perry Scheer, had been a principal in a collapsed brokerage house whose activities were under investigation by the SEC and the FBI; there was strong evidence that Scheer had been involved in at least seven illegal securities transactions. Petitioner, who was allegedly in league with various persons who could have been harmed by Scheer’s testimony before a grand jury investigating the affairs of the brokerage house, met with Scheer on several occasions and sought to secure Scheer’s silence through veiled threats and suggestions that Scheer “take the Fifth” (or, in more contemporary parlance, “stonewall it”). Unbeknownst to petitioner, Scheer by this time was cooperating fully with federal authorities, and had been fitted out with a recording device on which he recorded several of his conversations with petitioner; these recordings were introduced at trial to corroborate and supplement Scheer’s own testimony, and were played several times for the jury. I am unable to agree that the use of recordings made under such circumstances is consistent with constitutional guarantees.

In a series of decisions beginning with On Lee v. United States, 343 U. S. 747 (1952), this Court has held that electronic interception or recording of conversations with the consent of one party does not violate Fourth Amendment standards. With one notable exception, however, these decisions were handed down prior to Katz v. United States, 389 U. S. 347 (1967), in which we formally interred much of their conceptual underpinning by holding that Fourth Amendment protections rest upon reasonable expectations of privacy rather than upon common-law property principles. That exception came in United States v. White, 401 U. S. 745 (1971), where four Members of the Court held that On Lee remained good law after Katz, four others Members maintained with equal adamancy that it did not, and Mr. Justice Black (adhering to his dissent in Katz) found it unnecessary to reach the issue.

At a bare minimum, Katz must be read to require that monitoring of this sort be conducted only pursuant to a warrant: “ ‘Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U. S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” 389 U. S., at 357 (footnotes omitted). In the absence of such judicial supervision, there is no effective safeguard against the possibility of an uncontrolled electronic police state.

In my view the Executive Branch acts unlawfully when it invades an individual’s privacy through trickery or fraud. See, e. g., Lewis v. United States, 385 U. S. 206, 344-347 (1966) (Douglas, J., dissenting); Hoffa v. United States, 385 U. S. 293, 347-348 (1966) (separate opinion of Douglas, J.). The dangers posed by such invasions become particularly acute, however, when they are achieved through or accompanied by electronic monitoring of the sort presented here.

I would grant certiorari.

       See, e. g., Lopez v. United States, 373 U. S. 427 (1963); Osborn v. United States, 385 U. S. 323 (1966); United States v. White, 401 U. S. 745 (1971).

       See United States v. White, supra, at 760 (Douglas, J., dissenting); id., at 755-756 (Brennan, J., concurring in the result). In
        Osborn v. United States, supra, the Court upheld the use of a recording of a face-to-face conversation where there had been prior judicial authorization for the recording. 385 U. S., at 329-330. In my dissent in Osborn and elsewhere, I have set forth my view that even prior judicial approval cannot validate intrusions into constitutionally protected zones of privacy for the seizure of mere evidentiary material; the need for this protection is particularly acute when the items to be seized are an individual’s own words, thoughts, papers and personal effects, even if no Fifth Amendment problem is squarely presented. Id., at 349-354 (Douglas, J., dissenting); Warden v. Hayden, 387 U. S. 294, 319-325 (1967) (Douglas, J., dissenting); Couch v. United States, 409 U. S. 322, 343 (1973) (Douglas, J., dissenting). In light of the absence of any attempt to secure judicial authorization in the present case, I see no need to press that view further at this time.

       See, e. g., Osborn v. United States, supra, at 352-354 (Douglas, J., dissenting); United States v. White, supra, at 762-765 (Douglas, J., dissenting); Lopez v. United States, supra, at 463-471 (Brennan, J., dissenting).


author: Mr. Justice Stewart,

text:
    No. 73-1728.
    Dunn v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Stewart,

with whom Mr. Justice Douglas joins,

dissenting.

Petitioner seeks review of the Service’s order deporting him to Canada, his nation of citizenship. The Ninth Circuit noted that the Service’s “discretion . . . might have been exercised with greater .compassion,” but none-thel'ess upheld the order on the theory that “the scope of . . . review in this area is extremely narrow.”

The facts are peculiar; or, more accurately, the Service’s action is peculiar in light of the facts. Moving to this country with his parents in 1953 (at age 9), petitioner acquired permanent resident alien status. As such, he was subject to the draft, 62 Stat. 605, as amended, 65 Stat. 76, 50 U. S. C. App. § 454 (a), and he duly registered on his 18th birthday. In August 1966, he was ordered to report for induction on September 28, 1966. Possessing strong views against war and conscription, petitioner decided to go to Canada, rather than serve. At the border, he turned in his Alien Immigration Card but expressly refused to sign a formal renunciation of his permanent resident status. Very quickly, he thought better of his decision to leave. On September 28, his induction date, petitioner telephoned his draft board to announce that he was returning to the United States to surrender to a United States Attorney and to accept the legal penalty for refusing induction. On October 3, 1966, petitioner flew to Chicago and turned himself in to the United States Attorney. The Government took no action for 21 months, during which time petitioner studied at an American university.

Finally, in July 1968, petitioner was indicted under 62 Stat. 622, 50 U. S. C. App. § 462 (a), for “evad[ing] or refus[ing] . . . service in the armed forces.” He pleaded guilty and was sentenced to six months’ imprisonment and 18 months’ probation, the latter conditioned on his doing civilian work of national importance. Petitioner served this sentence in full.

Two years later, the Service moved to deport him, on grounds that he had fled the country to evade the draft, 66 Stat. 184, 8 U. S. C. § 1182 (a) (22), and abandoned his immigrant status in the process, 66 Stat. 183, as amended, 79 Stat. 918, 8 U. S. C. § 1182 (a)(20). This was a surprise, for petitioner thought that the books on this matter had been balanced by his voluntary return to the United States, surrender to authorities, guilty plea, and service of sentence. The Service found that no Government official ever promised petitioner that such would be the case. Still, the reasonableness of petitioner’s impression is clear enough. Prevailing law afforded aliens an exemption from Selective Service liability if they were willing to forfeit permanent resident status and any chance at eventual citizenship, 62 Stat. 606, 50 U. S. C. App. §454 (a) (1964 ed.). Exercising this option meant an almost certain loss of an alien’s right to remain in this country. Rather than exercise this option, petitioner accepted draft law liability, and the Government solemnized his choice with prosecution, conviction, and punishment under the draft laws. Now the same Government, in the guise of the Immigration Service, wishes to disregard his earlier choice, and the burdens imposed incident to it, and to deport petitioner as if none of this had happened. In my view, the two legal grounds asserted to support deportation do not overcome the obvious injustice of the order.

First: The Service found petitioner deportable for having re-entered the country, after his flight to Canada,

“not in possession of a valid unexpired immigrant visa.” 8 U. S. C. § 1182 (a)(20).

The theory is that petitioner abandoned permanent resident status, and thus his visa, when he turned in his alien card at the border. Standing alone, this theory would not be unreasonable. But I cannot square it with the fact the Government prosecuted petitioner for breaching an induction order premised on his status as a permanent resident. At the time, nonresident aliens were also subject to the draft, but only after remaining “in the United States in a status other than that of a permanent resident for a period exceeding one year.” 50 U. S. C. App. § 454 (a) (1964 ed.). If petitioner lost his permanent resident status at the border, his return would not have made him “liable for training and service in the Armed Forces” under § 454 (a) until a year later, and certainly that new liability would have required a new induction order.

By submitting his case promptly and in orderly fashion to the UnitéÜ States Attorney, petitioner rightfully expected a responsible examination of his case by the Government. In my judgment, the decision to prosecute, nearly two years later, implied Government adherence to the view, held by petitioner then as now, that his per-, manent resident status, and thus the legal premise of th,e induction order, had not been undermined by his brief dé-marche in Canada. Having led petitioner through the rigors of indictment, conviction, and punishment on this theory, the Government should now be precluded from changing its mind. Cf. Raley v. Ohio, 360 U. S. 423 (1959); Cox v. Louisiana, 379 U. S. 559 (1965).

Second: The Service also found petitioner deportable for having

“departed from or . . . remained outside the United States to avoid or evade training or service in the armed forces in time of war or a period . . . [of] national emergency.” 8 U. S. C. § 1182 (a) (22).

The obvious purpose of §1182 (a) (22) is to deny admission to the United States to aliens who have used foreign asylum to escape their liabilities under the draft law. It would appear that the provision reads in the disjunctive — “departed from or . . . remained outside” — so as to reach not only those who leave the country when faced with induction orders and fail to return to comply with them in time, but also those who receive their orders while already abroad and refuse to make timely return. The Service reads the provision more broadly, so as to apply to any alien who departs with evasive motives, regardless of his subsequent conduct. This reading is implausible: It would prevent return of such an alien for the express purpose of reporting for induction on time. I cannot believe Congress intended the provision to apply to an alien who flirted with the idea of asylum but then made prompt return to face the music. It is true that petitioner’s actual return occurred 'five days after his induction date. But he phoned the draft board on that date, announcing his intent to re-enter and turn himself in, an intention he carried out promptly. On these facts, I could not find that his purpose in “remain-ling] outside the United States” for those five days was “to avoid or evade training or service.”

Finally, it has been suggested that petitioner is nonetheless deportable as a convicted felon. But the Service did not base the deportation order on this ground, and I doubt that it could. Under 66 Stat. 204, 8 U. S. C. § 1251 (a) (4), an alien is deportable if

“convicted of a crime involving moral turpitude within five years after entry and either sentenced to confinement or confined therefor in a prison or corrective institution, for a year or more.”

It is far from clear that refusing induction is a “crime involving moral turpitude.” Cf. Chaunt v. United States, 364 U. S. 350, 353 (1960) (breach of peace not such a crime because “fraudulent conduct” not involved). To be eligible, the statutory crime must necessarily “in-volv[e] moral turpitude.” E. g., Ablett v. Brownell, 240 F. 2d 625; United States ex rel. Giglio v. Neelly, 208 F. 2d 337; United States ex rel. Guarino v. Uhl, 107 F. 2d 399. It is feasible, and hardly uncommon, for induction to be refused on grounds which, while legally insufficient, demonstrate no moral fault. Moreover, it is unclear, at least on the record before us, that petitioner’s crime was committed within five years of an “entry” into the United States. Brief trips abroad by permanent resident aliens do not always result in a new statutory “entry.” See Rosenberg v. Fleuti, 374 U. S. 449 (1963); Vargas-Banuelos v. INS, 466 F. 2d 1371. As noted above, the Service is hardly in a position to find an abandonment of permanent resident status by petitioner during his brief stay in Canada.

Because the factual setting of this case is unusual, the legal questions raised are unlikely often to recur. While this is normally a sound reason to deny review, the judgment before us is grossly unjust. The Service has noted that petitioner has a “penchant for botching up his life.” Perhaps so, but the Government’s botching up of this case has served to complete the wreckage.

I would grant certiorari and summarily reverse the judgment.


text:
    No. 73-1741.
    Persico et al. v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari as to Pérsico alone.


text:
    No. 73-1746.
    Johnson v. Ohio.
   Ct. App. Ohio, Clark County. Certiorari denied.

Mr. Justice Douglas,

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

dissenting.

Approximately one month after pleading guilty, petitioner sought to vacate her plea on the ground that she had not been adequately advised of the rights thereby waived. The record shows that before accepting petitioner’s plea the trial judge advised her of her right to be tried by a jury and to confront witnesses against her. Petitioner’s motion was denied by the trial court and the Ohio Court of Appeals affirmed.

In Boykin v. Alabama, 395 U. S. 238, 243 (1969), we emphasized that a guilty plea is a waiver of important constitutional rights designed to protect the fairness of a trial:

"Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U. S. 1. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U. S. 145. Third, is the right to confront one’s accusers. Pointer v. Texas, 380 U. S. 400. We cannot presume a waiver of these three important federal rights from a silent record.”

Waiver of such rights as these can be accomplished only by “an intentional relinquishment or abandonment of a known right or privilege,” Johnson v. Zerbst, 304 U. S. 458, 464 (1938). Only recently we reaffirmed the stringent standard for demonstrating the waiver of rights designed to safeguard the accused at trial, Schneckloth v. Bustamonte, 412 U. S. 218, 236-237 (1973).

The accused can waive only a known right, Johnson v. Zerbst, supra, and the State has the burden of demonstrating a knowing waiver. To repeat what we said in Boykin, “[w]e cannot presume a waiver . .. from a silent record.” Boykin established that the State must demonstrate the defendant’s knowing waiver of the three constitutional rights there enumerated. Two States have so interpreted Boykin as a constitutional minimum. People v. Jaworski, 387 Mich. 21, 194 N. W. 2d 868 (1972); In re Tahl, 1 Cal. 3d 122, 460 P. 2d 449 (1969). The record here fails to satisfy even this minimum standard, for the trial judge failed to advert to the privilege against self-incrimination.

The Boykin enumeration was illustrative, not exhaustive. The necessity that one be found guilty beyond a reasonable doubt (In re Winship, 397 U. S. 358 (1970)) and the right to a speedy trial (Barker v. Wingo, 407 U. S. 514 (1972)) are likewise involved. Ohio seems to recognize the need to accommodate constitutional rights other than the three mentioned in Boykin, since its own Supreme Court has held that a trial judge must advise the defendant of his right to be proved guilty beyond a reasonable doubt before accepting a guilty plea. State v. Griffey, 35 Ohio St. 2d 101, 298 N. E. 2d 603 (1973). Yet the record here fails even to meet this standard.

Since the Court has now held that a guilty plea forecloses constitutional challenge to the process that brought the defendant to the bar, Tollett v. Henderson, 411 U. S. 258 (1973), strict scrutiny over the standards for acceptance of the plea becomes all the more imperative. I would grant certiorari.


author: Mr. Justice Brennan,

text:
    No. 73-1764.
    Tobalina v. California.
   App. Dept., Super. Ct. Cal., County of Los Angeles. Certiorari denied. Mr. Justice Douglas, being of the view that any state or federal ban on, or regulation of, obscenity is prohibited by the Constitution, Roth v. United States, 354 U. S. 476, 508 (Douglas, J., dissenting); Miller v. California, 413 U. S. 15, 42-47 (Douglas, J., dissenting) ; Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70-73 (Douglas, J., dissenting), would grant certiorari and summarily reverse the judgment.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted in the Municipal Court of Los Angeles of exhibiting an allegedly obscene motion picture in violation of Cal. Penal Code § 311.2 (a) (1970) which provides in pertinent part as follows:

“Every person who knowingly . . . exhibits to others, any obscene matter is guilty of a misdemeanor.”

As used in § 311.2:

“ ‘Obscene matter’ means matter, taken as a whole, the predominant appeal of which to the average person, applying contemporary standards, is to prurient interest, i. e., a shameful or morbid interest in nudity, sex, or excretion; and is matter which taken as a whole goes substantially beyond customary limits of candor in description or representation of such matters; and is matter which taken as a whole is utterly without redeeming social importance.” §311 (a).

On appeal, the Appellate Department of the Superior Court of California for the County of Los Angeles affirmed the conviction. Certification to the Court of Appeal was sought and denied. This Court then granted certiorari, vacated the judgment of the Appellate Department, and remanded for consideration in light of Miller v. California, 413 U. S. 15 (1973), and companion cases. 413 U. S. 912. On remand, the Appellate Department again affirmed the conviction.

It is 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) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, § 311.2, as it incorporates the definition of “obscene matter” in § 311 (a), is constitutionally over-broad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, supra, at 47, I would therefore grant certiorari and, since the judgment of the Appellate Department was rendered after Miller, reverse. In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).

Further, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, 418 U. S. 87, 141 (1974), I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards.

       Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the ease be decided on the merits.


text:
    No. 73-1801.
    Goldstein v. Virginia.
   Sup. Ct. Va. Certiorari denied. Mr. Justice Douglas, being of the view that any state or federal ban on, or. regulation of, obscenity is prohibited by the Constitution, Miller v. California, 413 U. S. 15, 42-47 (Douglas, J., dissenting) ; Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70-73 (Douglas, J., dissenting), would grant certiorari in this case and summarily reverse the judgment.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted after a jury trial in the Corporation Court of the city of Norfolk, Virginia, of selling obscene items. The statute under which he was convicted, Va. Code Ann. § 18.1-228 (Supp. 1973), provides in pertinent part:

“Every person who knowingly... [p]ublishes, sells, rents, lends, transports in intrastate commerce, or distributes or exhibits any obscene item . . . shall be guilty of a misdemeanor.”

As used in that section:

“The word 'obscene’ . . . shall mean that which considered as a whole has as its dominant theme or purpose an appeal to prurient interest, that is, a shameful or morbid interest in nudity, sex or excretion, and if it goes substantially beyond customary limits of candor in description or representation of such matters.” § 18.1-227 (1960).

The Supreme Court of Virginia affirmed by order on July 11, 1972. This Court granted certiorari, vacated the judgment of the Supreme Court of Virginia, and remanded the case for further consideration in light of Miller v. California, 413 U. S. 15 (1973), and companion cases. 413 U. S. 912. The Supreme Court of Virginia again affirmed the conviction.

It is 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) (Brennan, J., dissenting). It is clear that, tested by that constitutional standard, § 18.1-228, as it incorporates the definition of “obscene” in § 18.1-227, is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, supra, at 47, and because the judgment of the Supreme Court of Virginia was rendered after Miller, I would reverse. In that circumstance, I have no occasion to consider whether the other questions presented merit plenary-review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).

       Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do no insist that the case be decided on the merits.


text:
    No. 73-1804.
    Shultz, dba Walt Shultz Equipment Co., et al. v. Moore.
   C. A. 10th Cir. Certiorari denied.

Mr. Justice Douglas,

dissenting.

This is an action for an injunction and damages for the infringement of a patent held by respondent Moore. Petitioner Shultz defended on the ground that the patent was invalid. The patented product is a “pants topper,” used in the dry cleaning business for finishing and pressing men’s trousers. Moore obtained his patent in 1955. At the trial there was evidence that patents on devices having functions similar to Moore’s had issued prior to his patent; not all of these prior patents had been brought to the attention of the examiner who recommended that Moore be granted a patent. A jury verdict in Moore’s favor was set aside by the trial court on the ground that the subject matter was “obvious ... to a person having ordinary skill in the art,” 35 U. S. C. § 103. The Court of Appeals reversed, holding that the patent carries a presumption of validity overcome only by clear and convincing evidence, and that obviousness is a factual question on which the trial judge should not override the jury. With all respect, that holding permits the standard of patentability to be diluted and haphazardly applied.

It bears repeating that patents derive from the specific constitutional authorization of Congress “[t]o promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries.” Art. I, § 8, cl. 8. Writing against the backdrop of abuses by the Crown in granting monopolies, the Framers did not intend these “exclusive rights” to be granted freely. To justify the toll exacted by exclusivity, the invention had to make a distinctive contribution to the advancement of scientific knowledge. Besides novelty and utility, a distinctive contribution expanding the frontiers of scientific and industrial knowledge was demanded. This constitutional restraint on the dispensation of patents was once mirrored in our cases under the standard of “invention.” See Reckendorfer v. Faber, 92 U. S. 347 (1876); Smith v. Whitman Saddle Co., 148 U. S. 674 (1893); Potts v. Creager, 155 U. S. 597 (1895); Concrete Appliances Co. v. Gomery, 269 U. S. 177 (1925); Mantle Lamp Co. v. Aluminum Products Co., 301 U. S. 544 (1937). The standard is now embodied in 35 U. S. C. § 103, which requires a “non-obvious subject matter.” Graham v. John Deere Co., 383 U. S. 1, 17 (1966).

Though the label has changed, the standard of patent-ability is at root a constitutional standard. In determining patent validity under the statute, a court simultaneously holds the statute true to its constitutional source. This is but a specific application of the principle that statutes are construed to avoid any overreaching of constitutional limitations. E. g., Screws v. United States, 325 U. S. 91, 98 (1945); United States v. Rumely, 345 U. S. 41, 47 (1953); Ashwander v. TVA, 297 U. S. 288, 348 (1936) (BrandEis, J., concurring); United States v. Seeger, 380 U. S. 163, 188 (1965) (concurring opinion).

In every patent infringement suit a court is called upon to oversee obedience to the constitutional standard. It cannot be delegated to the jury on the supposition that only a question of fact is involved. Factual assessments are, of course, part of the process of judging validity. The prior art must be ascertained and the unique features of the patentee’s contribution identified. But the determination whether the patentee’s distinctive contribution is of such a character as to justify the 17-year monopoly is one that demands reasoned elaboration and, therefore, treatment as a question of law. See Great Atlantic & Pacific Tea Co. v. Supermarket Equipment Co., 340 U. S. 147, 155 (1950) (concurring opinion). Findings that identify the unique features of the patented device and explain why they advance the art are essential to permit appellate review to insure that constitutional limitations have not been exceeded. The responsibility belongs to the courts. It will not do to leave such matters to unartieulated resolution by the jury.

Nor can the courts rely upon the Patent Office always to apply the standard faithfully. The proceedings on an application are not adversary. No representative of the public appears to contest unwarranted claims; the examiner alone must face the persistent applicant. A disappointed applicant may appeal an adverse administrative decision, but no corresponding check is available to overturn an erroneous finding of patentability. It does not impugn the good faith of examiners to observe that errors on the side of patentability slip through such a process. Litigation of patent validity in infringement suits presents the only opportunity for judicial correction of the errors of generosity.

The decision below holding patentability a question of fact for the jury represents an abdication which is likely to produce haphazard application of the statutory and constitutional standard. Happily, two other circuits have not adopted this approach. See Swofford v. B&W, Inc., 395 F. 2d 362 (CA5 1968); Hensley Equipment Co. v. Esco Corp., 375 F. 2d 432 (CA9 1967). I would grant certiorari.


text:
    No. 73-6472.
    Isola v. United States.
   C. A. 2d Cir. Certiorari denied. Mr. Justice Douglas, being of the view that any state or federal ban on, or regulation of, obscenity is prohibited by the Constitution, Miller v. California, 413 U. S. 15, 42-47 (Douglas, J., dissenting); Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70-73 (Douglas, J., dissenting), would grant certiorari in this case and summarily reverse the judgment.

Mr. Justice Brennan,

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

dissenting.

Petitioner was convicted in the United States District Court for the Eastern District of New York of transporting allegedly obscene materials in interstate commerce for the purpose of sale in violation of 18 U. S. C. § 1465, which provides in pertinent part as follows:

“Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other article capable of producing sound or any other matter of indecent or immoral character, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

The Court of Appeals for the Second Circuit affirmed, sub nom. Cangiano v. United States, 491 F. 2d 906 (1974).

I adhere to my dissent in United States v. Orito, 413 U. S. 139, 147 (1973), in which, speaking of 18 U. S. C. § 1462, which is similar in scope to § 1465,1 expressed the view that “[w'Jhatever 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.” 413 U. S., at 147-148. For the reasons stated in my dissent in Miller v. California, 413 U. S. 15, 47 (1973), I would therefore grant certiorari, and, since the judgment of the Court of Appeals for the Second Circuit was rendered after Orito, reverse. In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).

Finally, it does not appear from the petition and response that the obscenity of the disputed materials was adjudged by applying local community standards. Based on my dissent in Hamling v. United States, 418 U. S. 87, 141 (1974), I believe that, consistent with the Due Process Clause, petitioner must be given an opportunity to have his case decided on, and to introduce evidence relevant to, the legal standard upon which his conviction has ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgment below and remand for a determination whether petitioner should be afforded a new trial under local community standards.

      Although four of us would grant certiorari and reverse the judgment, the Justices who join this opinion do not insist that the case be decided on the merits.


text:
    No. 73-6522.
    Sundstrom v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas,

dissenting.

Ordered by his local Selective Service board to report for a pre-induction physical examination in May 1970, petitioner arrived at the examining place attired in a black robe and wearing facial makeup, in a representation of the symbol of death. Because of his appearance, petitioner was ejected from the examining station without undergoing a physical. The local board ordered petitioner to appear for a second physical examination in August 1970, but the notice failed to reach the petitioner, who at the time was traveling without a forwarding address. Upon learning that the petitioner had failed to appear for the second scheduled examination, the local board, acting pursuant to a new Selective Service regulation then less than two months old, ordered the petitioner to report for immediate induction. Under former practice, an induction order could not issue until the registrant had been found physically qualified for military service and had received notice to that effect. The superseding regulation authorized local boards to order for induction and simultaneous examination any registrant whose lottery number had been reached but who had failed to appear for a physical examination.

In September 1970, one week before his scheduled induction, petitioner returned to the board the induction order that had been mailed to him in August, stating in an accompanying letter his belief that the induction forms were “mailed in error” since he had not yet completed a physical examination and been found acceptable for military service. Although the board made no response to petitioner’s letter, it did report him to the Department of Justice as a violator when it learned of his failure to report for induction. Apparently at the urging of the Justice Department, the board sent a second induction order to petitioner on December 2, 1970, directing him to appear for induction on the 15th. Again petitioner returned the order to the board, citing his belief that “ ‘an induction order cannot be served unless a pre-induction physical has been consummated and an acceptability statement [sent].’ ” The board did not respond to this letter. Petitioner’s prosecution and conviction for failure to report for induction, 62 Stat. 622, 50 U. S. C. App. § 462 (a), followed.

The statute makes ft a crime “knowingly [to] fail or neglect to perform [any] duty” required by the Selective Service laws. I do not see how petitioner can be deemed to have committed a knowing violation when the record demonstrates that the local board made absolutely no effort to correct the petitioner’s erroneous belief, based upon a recently superseded regulation, that the board lacked power to summon him for induction.

Due process forbids the Government from actively misleading a citizen as to the law’s commands. Cox v. Louisiana, 379 U. S. 559 (1965); Raley v. Ohio, 360 U. S. 423 (1959). A citizen may be misled as much by failure to correct an erroneous impression as by incorrect advice, affirmatively conveyed. Especially in Selective Service matters where registrants deal with the Government apparatus unaided by counsel, the Government has a duty to make reasonable efforts to keep the citizen from pursuing an inaccurate interpretation of law to his detriment. See Simmons v. United States, 348 U. S. 397, 404 n. 5 (1955). The petitioner here advised the board on two occasions of his erroneous belief. On neither occasion did the board respond, although a form letter or a copy of the new regulation would have dispelled petitioner’s mistaken belief as to his status. Under these circumstances I would place upon the Government a duty to inform, and hold that failure to do so bars prosecution.

The new regulation was, to be sure, published. But the fiction that all men know the law, indulged in to provide a healthy incentive for men to learn the law’s command, need not be pressed so far as to impute knowledge of the labyrinthine passages of the Federal Register, when there is compelling evidence to the contrary. The salutary policy of the fiction will not be weakened if the rule is not absolute. Notice by publication is not sufficient where it may reasonably be anticipated that the notice will not reach those it is intended to address. See Lambert v. California, 355 U. S. 225 (1957); Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306 (1950). Here the petitioner’s letters to the board unmistakably demonstrated that published notice was insufficient. Arguably, fairness, as well as efficiency, is served by placing the burden on the Government to advise petitioner of the change in regulations.

I would grant certiorari.

       A count that charged petitioner with violating 50 U. S. C. App. § 462 by failing to appear for the second physical examination was dismissed by the trial judge on the ground that the evidence did not support a “knowing” violation.

       Executive Order No. 11537, 3 CFR 936 (1966-1970 Comp.), revising 32 CFR §1631.7 (1970).

       The failure of a local board to correct a registrant’s erroneous impression that he does not have a valid claim to an exemption as a conscientious objector has been held to vitiate a subsequent prosecution for failure to report for induction. See United States v. Sanders, 470 F. 2d 937, 939 (CA9 1972) (“ [misleading conduct may consist of failure to correct an evident misunderstanding as well as to affirmatively convey incorrect information”).

       0. Holmes, The Common Law 40-41 (Howe ed. 1963).

       The Model Penal Code, for example, adopts a posture of moderation in providing for ignorance of law as a defense. §2.04 Proposed Official Draft, 1962.

       In May 1972, the Director of Selective Service promulgated the Registrants Processing Manual, which provides that when a local board determines that a registrant has failed to appear for a scheduled physical examination it shall by letter so advise the registrant of this fact and that the registrant may be issued an order for induction and subsequent physical examination if his lottery number is reached. See 37 Fed. Reg. 10763 (May 27, 1972).


text:
    No. 73-6623.
    Clay et al. v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Stewart would grant certiorari.


text:
    No. 73-6655.
    Windsor v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas,

dissenting.

The petitioner, convicted of failure to report for induction, 62 Stat. 622, 50 U. S. C. App. § 462 (a), challenges the induction order on the ground that he was improperly denied exemption from Selective Service as a conscientious objector. Petitioner completed high school under a student deferment in 1969. In January 1970, he was reclassified I-A and was ordered to report for a preinduction physical examination the following October. In January 1971, petitioner filed an application for reclassification as a conscientious objector. His local Selective Service board rejected this claim, advising petitioner by letter:

“Your claim as a conscientious objector was considered by the Board on February 12, 1971, and in their opinion your .professed belief in opposition to war is not a compelling or controlling force in your life, but is simply [an] expedient to avoid military service at this time and that you are not sincere in your professed belief.”

Petitioner appealed to an appeal board, which affirmed without opinion the local board’s denial of exemption.

The Court of Appeals, applying a rule announced in United States v. Stetter, 445 F. 2d 472 (CA5 1971), that when an applicant makes a prima facie case for exemption as a conscientious objector the board must give a statement of reasons for rejection of the application, construed the local board’s letter to petitioner as a finding of insincerity of petitioner’s asserted beliefs. The court then concluded that a finding of insincerity could be based upon the fact that petitioner waited for more than a year after his reclassification as I-A to file his application for exemption and did so only after passing his preinduction physical examination. Accordingly, the court found that the board’s “reason” had a basis in the record and affirmed petitioner’s conviction.

Elsewhere I have expressed my view that an applicant for exemption as a conscientious objector is entitled, under the Due Process Clause of the Fifth Amendment, to a hearing before a local board on his claim. Fein v. Selective Service System, 405 U. S. 365, 382 (1972) (dissenting opinion). A statement of reasons accompanying a decision adverse to the applicant is no less a requirement of due process. Without a statement of reasons there is simply no way to ascertain whether the board has acted within its powers as prescribed by law. See Goldberg v. Kelly, 397 U. S. 254, 271 (1970); Joseph v. United States, 405 U. S. 1006 (1972) (dissenting opinion). The only statement afforded petitioner is contained in the local board’s February 1973 letter, a document insufficient in two respects to sustain the board’s denial of exemption.

First, the board’s statement that petitioner’s belief “is not a compelling or controlling force in your life” gives little confidence that the board applied the correct legal standard for exemption under 62 Stat. 612, as amended, 50 U. S. C. App. §456 (j). The statute authorizes exemption for any person “who, by reason of religious training and belief, is conscientiously opposed to participation in war in any form.” In Clay v. United States, 403 U. S. 698, 700 (1971), we said:

“In order to qualify for classification as a conscientious objector, a registrant must satisfy three basic tests. He must show that he is conscientiously-opposed to war in any form. Gillette v. United States, 401 U. S. 437. He must show that this opposition is based upon religious training and belief, as the term has been construed in our decisions. United States v. Seeger, 380 U. S. 163; Welsh v. United States, 398 U. S. 333. And he must show that this objection is sincere. Witmer v. United States, 348 U. S. 375. In applying these tests, the Selective Service System must be concerned with the registrant as an individual, not with its own interpretation of the dogma of the religious sect, if any, to which he may belong. United States v. Seeger, supra; Gillette v. United States, supra; Williams v. United States, 216 F. 2d 350, 352.”

The board’s cryptic “compelling and controlling force” language in this case may have reflected a conclusion that although petitioner met the three tests above he did not qualify for an exemption because his belief was not lifelong. Such a decision would have been entirely improper, since, assuming a sincere belief, the length of time petitioner had held it would be irrelevant. Schuman v. United States, 208 F. 2d 801 (CA9 1953); Taylor v. Chafee, 327 F. Supp. 1131 (CD Cal. 1971). Or the board might have concluded, equally erroneously, that petitioner did not qualify for exemption because his belief had not heretofore “compelled” him to express it in some organized activity.

To be sure, the board’s decision might have been based on a wholly proper application of the legal standard. The difficulty is that we cannot tell from the “statement” the board has given. It is a “simple but fundamental rule of administrative law . . . [that if] the administrative action is to be tested by the basis upon which it purports to rest, that basis must be set forth with such clarity as to be understandable. It will not do for a court to be compelled to guess at the theory underlying the agency’s action.” SEC v. Chenery Corp., 332 U. S. 194, 196-197 (1947). The Court of Appeals viewed the board’s statement as a denial of the exemption because of insincerity. But the “compelling and controlling force” language appeared in addition to the statement that petitioner was not sincere, with no indication whether the former contributed to the rejection or served merely as a restatement of the latter ground. The board’s decision cannot be sustained on the basis of the sincerity finding alone unless it is clear from the record that the board intended it to be a wholly independent ground of decision. Cf. Sicurella v. United States, 348 U. S. 385 (1955).

Even if the board’s statement is viewed solely as a rejection of petitioner’s application because of insincerity, it will not support the board’s action because it contains no reasons but merely the board’s conclusion. Applicants for exemption as conscientious objectors may be found insincere where the belief claimed is inconsistent with prior statements or conduct of the applicant, or where the applicant’s demeanor in an appearance before the board deprives him of credibility. Witmer v. United States, 348 U. S. 375 (1955). Typically, reviewing courts have perused the record in order to discover evidence that would furnish a “basis in fact” for a denial of exemption because of insincerity. See, e. g., United States v. Abbott, 425 F. 2d 910 (CA8 1970); United States v. Weaver, 423 F. 2d 1126 (CA9 1970). It is time to demand more of the local board: a statement that identifies the evidence supporting the conclusion that the applicant is not sincere. A statement of such specificity is indispensable to assure that the board has reasoned from the evidence. Such a statement will facilitate review; and requiring the familiarity with the record necessary to its preparation will enhance the decisionmaking process at the administrative level. Without such a statement, a board may too easily shield inattentiveness or misapplication of the law from judicial review behind the screen of a conclusory finding of insincerity. This danger is especially real where, as here, the finding of insincerity is merely tacked onto other language that betrays possible confusion about the legal standard.

I would grant certiorari to consider the adequacy of the administrative action.

       A statement of reasons accompanying an adverse decision by a local or appeal board is now required by the Military Selective Service Act, 85 Stat. 353, 50 U. S. C. App. § 471a (b) (4) (1970 ed., Supp. II), but this provision of the statute is inapplicable to petitioner’s case because of its effective date.

       Such a requirement, advocated by several commentators, see Note, Administrative Findings in Selective Service Litigation, 57 Va. L. Rev. 477, 485 (1971); Hansen, The Basis-in-Fact Test in Judicial Review of Selective Service Classifications: A Critical Analysis, 37 Brooklyn L. Rev. 453 (1971), has recently gained approval of two Courts of Appeals. See United States v. Stetter, 445 F. 2d 472, 485 (CA5 1971); United States ex rel. Hemes v. McNulty, 432 F. 2d 1182, 1187 (CA7 1970).

       Instances of board members’ lack of familiarity with all the facts relevant to a classification decision are, regrettably, amply documented. See United States v. Thompson, 431 F. 2d 1265 (CA3 1970); United States v. Ford, 431 F. 2d 1310 (CA1 1970). See also In Pursuit of Equity: Who Serves When Not All Serve?, Report of the National Advisory Commission on Selective Service 20-21 (1967).


text:
    No. 73-6666.
    Murray v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas,

dissenting.

Acting upon information received from the Los Angeles Police Department that a man of a specified description would arrive on a certain airplane carrying heroin inside a garment bag, a San Francisco sheriff’s deputy observed petitioner arriving on the designated flight, matching the description given and carrying a garment bag. The deputy stopped petitioner, searched the bag, and discovered heroin that was used to secure petitioner’s conviction for importing heroin into the United States. Petitioner appealed the conviction on the ground that the heroin should have been suppressed as the fruit of an unlawful search. The court below held that the report received from the Los Angeles police, as “corroborated” by petitioner’s appearance on the flight designated and matching the description, furnished probable cause for the forcible inspection of petitioner’s garment bag.

Because the court below failed to inquire into the origin of the information furnished by the Los Angeles police, it cannot be said that probable cause for the search has been established. Had the information been based upon the observations of a Los Angeles police officer, a proper assessment of probable cause would have necessitated examination of the observations on which he relied, to see whether they would have justified belief by a “man of reasonable caution” that petitioner was carrying contraband, Carroll v. United States, 267 U. S. 132, 162 (1925). Had the police report been based upon a tip received by the Los Angeles police from an informer, somewhat greater scrutiny would have been necessary to apply the requirements of Aguilar v. Texas, 378 U. S. 108 (1964), and Spinelli v. United States, 393 U. S. 410 (1969). These cases held that to furnish probable cause a tip must disclose the informer’s observations upon which any conclusion is based and must be accompanied by information supporting the informer’s credibility. Neither kind of inquiry occurred here, for the court below failed to go beyond the fact that the information came from the Los Angeles police. But the transmission of the information in the form of a Los Angeles “police report” is of no immediate analytical significance; the Los Angeles Department merely served as a conduit between the searching officer and a still undisclosed source. The fact that the searching officer received his information from another police officer does not alter the usual Fourth Amendment inquiry. On this point the holding of Whiteley v. Warden, 401 U. S. 560 (1971), is dispositive; the conclusions embodied in a police bulletin are not shielded from judicial scrutiny.

The court below viewed petitioner’s arrival on the designated flight and his physical appearance as corroborative of the “tip” received from the Los Angeles police and relied upon Draper v. United States, 358 U. S. 307 (1959), in upholding the search. In Draper an informer predicted that the defendant would arrive on a certain train wearing certain clothing and carrying heroin that was recently purchased. The informer, whom the police viewed as reliable from prior dealings, had a few days earlier given information that the defendant was dealing in heroin. The Court held that when the defendant arrived on the designated train attired as the informer had predicted, the police had probable cause to make the search of his person that resulted in the discovery of heroin. Draper does not support the result here; it involved a known informer, having a reputation for reliability, who had given information previously. It is impossible to say that any of these factors were present here. The “corroboration” only established that someone was well acquainted with petitioner’s travel plans. As in Whiteley v. Warden, supra, nothing in petitioner’s appearance when the police first met him tended to confirm the allegation of criminal conduct.

The decision below arguably represents a failure to follow the Fourth Amendment principles enunciated in our decisions. Accordingly I would grant certiorari.

      These requirements were held satisfied in United States v. Harris, 403 U. S. 573 (1971), where the aifiant alleged receiving “personal information” from a “prudent person” that the defendant had recently sold illicit liquor. However one may view Harris, it plainly furnishes no support for the search here. The Court relied on the fact that the unidentified informer made admissions against penal interest as well as certain assertions of “personal knowledge” — fae-tors necessarily absent here on the present record because the origin of the observations was not explored.


text:
    No. 73-6719.
    Dorman v. United States.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Douglas,

dissenting.

In 1973 Frank Dorman was sentenced by the District Court to a term of three years for violating the travel restrictions of his bond and to two concurrent seven-year terms for the interstate transportation of forged checks. In imposing sentence, the trial judge emphasized the “very, very substantial” record of Dorman’s prior convictions. The trial judge learned of these state convictions from a presentence report, which had incorporated the convictions listed in an FBI summary. None of these documents revealed, and it has not been ascertained, whether Dorman had the assistance of counsel at the time these convictions were obtained. On appeal, Dor-man sought to have his case remanded for a determination whether he lacked counsel at the time of the prior convictions, and if so for imposition of a new sentence. The Court of Appeals held that Dorman had waived any objection to the trial court’s use of the prior convictions by his failure to object after disclosure of the presentence report.

Since the landmark case of Gideon v. Wainwright, 372 U. S. 335 (1963), we have held that convictions obtained without the provision of counsel for the accused may not be used to enhance punishment under a recidivist statute, Burgett v. Texas, 389 U. S. 109 (1967), nor to influence the determination of a discretionary sentence, United States v. Tucker, 404 U. S. 443 (1972), nor to impeach the credibility of a defendant at trial, Loper v. Beto, 405 U. S. 473 (1972). The guiding principle was stated in Burgett v. Texas:

“To permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense ... is to erode the principle of that case. Worse yet, since the defect in the prior conviction was denial of the right to counsel, the accused in effect suffers anew from the deprivation of that . . . right.” 389 U. S., at 115.

The Court of Appeals permits the defendant’s sentence to stand, with ample demonstration that the sentencing judge relied heavily on prior convictions, and no demonstration in the record that he had counsel during the prosecutions involved. The decision below remits the defendant to collateral challenge to his sentence. Under Fourth Circuit practice, the defendant must apparently now challenge each state conviction through independent proceedings and, if successful, move to vacate the federal sentence now in issue under 28 U. S. C. § 2255. See Brown v. United States, 483 F. 2d 116 (CA4 1973). This result is consonant neither with sound judicial administration nor with fairness to the accused. The determination whether a defendant had counsel at the time of prior convictions should ordinarily be ascertainable from an examination of the records of conviction. I would place the burden of that examination, which surely would add only a small increment to the task of preparation for trial or sentencing, upon the Government. This procedure would centralize in one proceeding all inquiry relevant to the use of prior convictions and would give positive assurance in the record that Gideon was not undercut through impermissible collateral uses of un-counseled convictions.

In this ease the sentencing occurred nearly a year after our decision in United States v. Tucker, supra, time enough for the Government to have assumed the burden of demonstrating the constitutional validity of each conviction used against the accused. I would grant certiorari and reverse the judgment below.


author: Mb. Justice Douglas,

text:
    No. 73-6754.
    Sedillo v. United States.
   C. A. 9th Cir. Certiorari denied.

Mb. Justice Douglas,

with whom Me. Justice Brennan and Mb. Justice Marshall concur,

dissenting.

Petitioner was walking up a freeway on-ramp when he was stopped by an officer. Petitioner gave the officer his name but was unable to produce any identification. The officer noticed an envelope in petitioner’s shirt pocket and saw through a window in the envelope that it was addressed to someone other than petitioner. He thought that the envelope contained a Treasury check, and he pulled it out of petitioner’s pocket. The officer removed the check from the envelope and saw that it had been endorsed. Petitioner was arrested, and after further investigation was tried and convicted of forgery.

The Court of Appeals affirmed the conviction on the ground that the officer had probable cause to seize the check from petitioner’s person and that the absence of a warrant is excused by the plain-view doctrine. 496 F. 2d 151, 152 (CA9 1974). Judge Hufstedler wrote a dissent in which she pointed out that the incriminating aspects of the item in petitioner’s pocket simply were not in plain view. The check itself and in particular the endorsement were not visible until the envelope had been removed from petitioner’s pocket and opened. “Nothing in the record of this case supports a conclusion that [the officer] at the time of the seizure had probable cause to believe that the envelope seen in Sedillo’s pocket was contraband, or that it contained contraband, or that it was evidence relevant to a crime that [the officer] had probable cause to believe had been committed. Accordingly, the plain-view doctrine cannot justify the seizure of the envelope and check.” Id., at 153 (footnote omitted).

In Coolidge v. New Hampshire, 403 U. S. 443, 466 (1971), the Court pointed out that the plain-view doctrine is applicable only “where it is immediately apparent to the police that they have evidencé before them; the ‘plain view’ doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.” To use the plain-view rationale in this case is to ignore the limitations on that exception to the warrant requirement which are explained by Coolidge.

It appears to me that the conviction here results from police conduct which violated the Fourth Amendment. The plain-view doctrine is not applicable, and I do not see how any other exceptions to the warrant requirement would justify the conduct of the police. I would therefore grant certiórari and set this case for argument.

      Obviously the search and seizure were not incident to arrest, since the arrest did not occur until after the envelope had been removed from petitioner’s pocket and opened. I dissented in Terry v. Ohio, 392 U. S. 1 (1968), but even the majority position in that case would not justify the officer’s conduct here. Terry permitted a “reasonable search for weapons for the protection of the police officer, where he has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime.” Id., at 27. But that doctrine clearly has no applicability here. As Judge Hufstedler put it: “No one contends in this case that [the officer’s) seizure of the envelope from Sedillo’s pocket or the examination of the envelope’s contents was necessary to protect the officer’s person.” 496 F. 2d 151, 153.


text:
    No. 73-6943.
    Johnson v. Nebraska.
   Sup. Ct. Neb. Certiorari denied.

Mr. Justice Douglas,

dissenting.

Petitioner was convicted of violating a city gambling ordinance, carrying a maximum penalty of six months’ imprisonment and a $500 fine. Following a trial before a municipal judge, petitioner was convicted and sentenced to 100 days in jail and fined $500. Under Nebraska law, trial by jury is unavailable in a prosecution in municipal court for violation of a city ordinance. The Nebraska courts rejected petitioner’s assertion of a right to a jury trial under the Sixth Amendment, on the ground that no such right applies to prosecutions for offenses carrying a maximum penalty of imprisonment for six months or less.

The Constitution provides for trial by jury in two places. Article III, § 2, provides that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury . . . .” And the Sixth Amendment provides in pertinent part:

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . .” (Emphasis added.)

Despite these specific references to a jury in the trial of “all crimes” and in “all criminal prosecutions” the Court has held that the accused enjoys no right to demand trial by jury in prosecutions for “petty offenses.”

The notion of a class of “petty offenses” for which prosecution would carry no right to jury trial first surfaced in this Court in the dicta of Callan v. Wilson, 127 U. S. 540, 555 (1888), which held that a conspiracy offense did not belong in the “petty” class. “Petty offenses” were to be defined as those punishable by summary proceedings at common law prior to the adoption of the Constitution. The exclusion of petty-offense prosecutions from the jury trial guarantee was repeated in several later cases. Natal v. Louisiana, 139 U. S. 621 (1891), involved a Fourteenth Amendment challenge to a Louisiana ordinance regulating the location of private marketplaces. Prosecution for violation was before a magistrate only and was punishable by a $25 fine or imprisonment for 30 days. In holding that the absence of jury trial did not vitiate conviction under the ordinance, the Court repeated the Callan dicta, but the decision came more than 70 years before we held the federal right to jury trial applicable in state proceedings, Duncan v. Louisiana, 391 U. S. 145 (1968). In Schick v. United States, 195 U. S. 65 (1904), the petty-offense exclusion was again repeated, but the holding of that case was that the defendant’s waiver of jury trial in the District Court did not invalidate his conviction.

Not until District of Columbia v. Clawans, 300 U. S. 617 (1937), did the Court squarely rule that certain prosecutions are outside the constitutional guarantee. That case involved a prosecution in the District of Columbia for violation of a statute making it a crime, punishable by a fine of $300 or less, or imprisonment of 90 days or less, to sell second-hand goods without a license. In holding that trial by jury was not required, the Court expanded the definition of “petty offenses” to embrace all those for which the authorized punishment failed to meet a requisite standard of severity. The degree of severity required to invoke the constitutional right was to be ascertained “by objective standards such as may be observed in the laws and practices of the community taken as a gauge of its social and ethical judgments.” Id., at 628. In the years since Clawans, the Court has struggled to achieve greater precision in drawing the line that separates “petty” from “serious” crimes. See Duncan v. Louisiana, supra, at 160-162; Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968); Frank v. United States, 395 U. S. 147 (1969); Baldwin v. New York, 399 U. S. 66, 67-73 (1970). The Court’s latest expression in this quest for certainty came last Term in Codispoti v. Pennsylvania, 418 U. S. 506 (1974). There it was said that “our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes.” Id., at 512. What apparently began in Callan as a narrow exception to the jury trial guarantee based upon the nature of the offense has become a rigid rule based upon the maximum authorized punishment.

If the judgment were mine to make, I would entertain considerable doubt that petitioner’s offense can be described as “petty.” See Frank v. United States, supra, at 160 (Black, J., dissenting). Petitioner’s offense carried a maximum penalty of six months’ imprisonment and a $500 fine. A literal reading of the “fixed dividing line” stated in Codispoti would place petitioner’s offense in the “serious” category, for it carries “a sentence of more than six months.” I recognize, however, that the Court has never expressly considered how the interaction of authorized imprisonment and fines affects the dividing line, although it has adverted to the provisions of 18 U. S. C. § 1, defining as “petty” a crime in which both six months’ imprisonment and a $500 fine are authorized. See e. g., Duncan v. Louisiana, supra, at 161; Frank v. United States, supra, at 151. On the Court’s own terms, certiorari should be granted to resolve the ambiguity.

For myself, I adhere to the views expressed by Mr. Justice Black, whom I joined, in Baldwin v. New York, supra, at 74-76, that the Constitution forbids the kind of line drawing in which the Court is now engaged. In making trial by jury applicable “in all criminal prosecutions,” the Framers foreclosed any judicial freedom to decide that in certain prosecutions trial by jury is unwarranted. The point was forcefully made by Justices McReynolds and Butler in their separate opinion in District of Columbia v. Clawans, supra:

“In a suit at common law to recover above $20.00, a jury trial is assured. And to us, it seems improbable that while providing for this protection in such a trifling matter the framers of the Constitution intended that it might be denied where imprisonment for a considerable time or liability for fifteen times $20.00 confronts the accused.” 300 U. S., at 633-634.

Until the language of the Constitution is amended, we are not free to impose our judgment as to what offenses are “petty.” Since, in my view, the right to trial by jury in all criminal prosecutions is among the privileges and immunities of citizens of the United States the States are forbidden by the Fourteenth Amendment from abridging, see Gideon v. Wainwright, 372 U. S. 335, 345-347 (1963) (concurring opinion), I would apply the same rule in both state and federal prosecutions. See also Duncan v. Louisiana, supra, at 162-171 (Black, J., concurring). The judgment below might arguably be permitted to stand under a view that the federal guarantee of trial by jury is not fully applicable to the States. This was the view of Mr. Justice Harlan, expressed in, e. g., Duncan v. Louisiana, id., at 171-193, and Williams v. Florida, 399 U. S. 78, 117-138 (1970). I do not share that view, see id., at 106-107, and in any event it has not commanded a majority of this Court.

Petitioner was denied a jury in what is unquestionably a criminal prosecution. I would grant certiorari to consider his Sixth Amendment claim.

       Compare Mr. Justice Harlan’s opinion for the Court in Callan v. Wilson, 127 U. S. 540 (1888), with his later dissenting opinion in Schick v. United States, 195 U. S. 65, 80-81 (1904).

       Special rules have been applied with respect to criminal contempts for which a maximum penalty is not specified. See Dyke v. Taylor Implement Mfg. Co., 391 U. S. 216 (1968); Frank v. United States, 395 U. S. 147 (1969); Taylor v. Hayes, 418 U. S. 488 (1974).


author: Mr. Justice White, Mr. Justice Douglas,

text:
    No. 73-7019.
    Bailey v. Weinberger, Secretary of Health, Education, and Welfare.
   C. A. 9th Cir. Cer-tiorari denied.

Mr. Justice White,

joined by Mr. Justice Douglas and Mr. Justice Stewart,

dissenting.

The Court of Appeals for the Ninth Circuit, adhering to its previous decisions in Stuckey v. Weinberger, 488 F. 2d 904 (1973) (en banc), and Wallace v. Weinberger, 488 F. 2d 606 (1973) (en banc), cert. denied, 417 U. S. 913 (1974), held in this case that the decision of the Secretary of HEW on a request to reopen a previous denial on the merits of a claim for benefits is so far committed to agency discretion by the provisions of § 205 (h) of the Social Security Act, 49 Stat. 624, as amended, 53 Stat. 1371, 60 Stat. 1095, 67 Stat. 632, 42 U. S. C. § 405 (h), that review of that decision is not available pursuant to the Administrative Procedure Act. See 5 U. S. C. § 701 (a)(2). This holding is squarely in conflict with the holdings of three other Circuits in Cappadora v. Celebrezze, 356 F. 2d 1 (CA2 1966); Davis v. Richardson, 460 F. 2d 772 (CA3 1972); and Maddox v. Richardson, 464 F. 2d 617 (CA6 1972). It is a prime function of this Court’s certiorari jurisdiction to resolve precisely the kind of conflict here presented. This Court’s Rule 19 (1) (b). Perhaps the state of our docket will not permit us to resolve all disagreements between courts of appeals, or between federal and state courts, and perhaps we must tolerate the fact that in some instances enforcement of federal law in one area of the country differs from its enforcement in another. These situations, it is hoped, will be few and far between. I would grant certiorari in this case.

Mr. Justice Douglas,

dissenting.

While I have joined Mr. Justice White’s dissent, I should add that the number of cases we take to review on the merits is well below the tolerable limit and that this case presents one of the most pressing problems on the modern scene. For the extent to which the ever-growing federal bureaucracy uses “discretion” to mask irresponsible action that evades review seems to me to be eroding basic rights of the citizen.


text:
    No. 74-96.
    No. 74-5405.
    Damon, Reformatory Superintendent v. Leeson; and Leeson v. Damon, Reformatory Superintendent.
   C. A. 2d Cir. Motion of respondent in No. 74-96 for leave to proceed in forma pauperis granted. Certiorari denied.

Mr. Justice White would grant certiorari in No. 74-96.


text:
    No. 74-126.
    Sigal, aka Edwards, et al. v. United States.
   C. A. 10th Cir. Application to recall and stay mandate, presented to Mr. Justice White and by him referred to the Court, denied. Certiorari denied.


text:
    No. 73-1191.
    Hourihan v. Dakin et al.,
   416 U. S. 951. Motion for leave to file petition for rehearing denied.


text:
    October 25, 1974
    No. 74-5294.
    Williams v. United States.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    October 29, 1974
    No. 50,
    Orig.
    Vermont v. New York et al.
   Bill of complaint dismissed under this Court’s Rule 60. [See 417 U. S. 270.]


text:
    No. 73-1870.
    Huffman v. Montana Supreme Court et al.
   Affirmed on appeal from D. C. Mont.


text:
    No. 74-32.
    Vallis et al. v. Lefkowitz, Attorney General of New York, et al.
   Affirmed on appeal from D. C. S. D. N. Y.


text:
    No. 73-1902.
    National Independent Coal Operators Assn, et al. v. Brennan, Secretary of Labor.
   Affirmed on appeal from D. C. D. C.

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


author: Mr. Justice Douglas, Mr. Justice Brennan,

text:
    No. 73-2029.
    Star et al. v. Preller et al.
   Affirmed on appeal from D. C. Md.

Mr. Justice Douglas,

dissenting.

Appellant Star owns several bookstores in Baltimore which contain, inter alia, coin-operated viewing machines showing portions of so-called “adult” motion pictures. After a number of raids in which these motion pictures were seized for lack of a proper license from the Maryland State Board of Censors, appellant sought injunctive relief against the enforcement of Maryland’s film-licensing requirements on the ground that such requirements violate the freedoms protected by the First and Fourteenth Amendments. We held a predecessor Maryland statute unconstitutional in Freedman v. Maryland, 380 U. S. 51 (1965); the three-judge District Court, however, concluded that the defects identified in Freedman had been remedied by the present statute. 352 F. Supp. 530 (Md. 1972); 375 F. Supp. 1093 (Md. 1974).

The court below made much of the fact that the amended statute provides for a prompt judicial determination of obscenity after denial of a license by the Board, and that the Board must bear the burden of proof at all stages of the proceedings. I have previously set forth, at some length, my view that no form of censorship, no matter how speedy or efficient it may be, is constitutionally permissible. The cost and delay involved in contesting an adverse determination by the censor provide a very practical deterrent to free and open expression; the inevitable result is a reluctance even to attempt to disseminate ideas which, by virtue of their content, may attract the censor’s attention or draw his wrath. Moreover, by imposing his sanctions in advance, the censor circumvents all the protections of the Bill of Rights which are called into play by a criminal prosecution after the fact. The Maryland system has no place for the right of trial by jury, nor does it require proof beyond a reasonable doubt; step by step, by eroding these constitutional guarantees, the State facilitates its self-appointed task of imposing and ensuring conformity to an official standard of morality.

I adhere to the positions I have taken in Freedman v. Maryland, supra, at 61 (concurring opinion); Times Film Corp. v. Chicago, 365 U. S. 43, 78 (1961) (dissenting opinion); Kingsley International Pictures Corp. v. Regents, 360 U. S. 684, 697 (1959) (concurring opinion); and Superior Films v. Department of Education, 346 U. S. 587, 588 (1954) (concurring opinion). I would reverse the judgment below.

Mr. Justice Brennan,

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

dissenting.

Appellants challenged the constitutionality of the Maryland motion picture censorship statute, Md. Ann. Code, Art. 66A, §§ 1-26 (1970), which requires that films be licensed before exhibition and forbids the licensing of obscene films. Pursuant to § 6 (b) of the statute a film is “obscene” if, “when considered as a whole, its calculated purpose or dominant effect is substantially to arouse sexual desires, and if the probability of this effect is so great as to outweigh whatever other merits the film may possess.” A three-judge court ruled adversely to appellant, and this Court vacated the judgment and remanded the case for further consideration in light of Miller v. California, 413 U. S. 15 (1973), and companion cases. 413 U. S. 905. The three-judge court again upheld the statute.

It is 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) (Brennan, J., dissenting).

It is clear that, tested by that constitutional standard, the Maryland motion picture censorship statute, as it defines “obscene” in § 6 (b), is constitutionally overbroad and therefore invalid on its face. For the reasons stated in my dissent in Miller v. California, supra, at 47, and because the judgment of the three-judge court was rendered after Miller, I would therefore reverse. In that circumstance, I have no occasion to consider whether the other questions presented merit plenary review. See Heller v. New York, 413 U. S. 483, 494 (1973) (Brennan, J., dissenting).


text:
    No. 73-6968.
    Englefield v. Englefield.
   Appeal from Sup. Ct. Ohio dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 74-37.
    Town of East Haven et al. v. United States et al.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 74-5145.
    Buxton v. Board of Directors et al.
   Appeal from C. A. 9th Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 73-6732.
    Sloan v. Nixon, President of the United States, et al.
   C. A. 2d Cir. Four Members of the Court have disqualified themselves in this case. Be-cáuse of this absence of a quorum, 28 U. S. C. § 1, and since a majority of the qualified Justices are of the opinion that the case cannot be heard and determined at the next Term of Court, the judgment is affirmed under 28 U. S. C. § 2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.”


text:
    No. 74-5060.
    LaRuffa v. New York.
   Ct. App. N. Y. Motion for leave to proceed in forma pauperis and cer-tiorari granted. Judgment vacated and case remanded for further consideration in light of Blackledge v. Perry, 417 U. S. 21 (1974), and Tollett v. Henderson, 411 U. S. 258 (1973).


text:
    No. — .
    No. —.
    Ellis v. Hawaii; and Ellis v. Powers et ux.
   Sup. Ct. Hawaii. Motion to consolidate cases to permit filing of a single petition for writ of certiorari denied.


text:
    No. A-177 (74-269).
    Brian, Secretary, Human Relations Agency, et al. v. California Welfare Rights Organization et al.
   Sup. Ct. Cal. Application for stay presented to Mr. Justice Blackmun, and by him referred to the Court, denied.


text:
    No. A-190 (74-244).
    Booze et al. v. Florida.
   Ap-

plication for stays of mandates of the District Court of Appeal of Florida, Second District, presented to Mr. Justice Douglas, and by him referred to the Court, denied.


text:
    No. A-202 (74-312).
    Swoap, Director, Department of Benefit Payments, et al. v. Waits et al.
   • Sup. Ct. Cal. Application to stay enforcement of injunction of Superior Court of California, County of Sacramento, presented to Mr. Justice Blackmun, and by him referred to the Court, denied.


text:
    No. A-255.
    Alers v. Toledo et al.
   C. A. 1st Cir. Application for stay presented to The Chief Justice, and by him referred to the Court, denied.


text:
    No. A-256 (74-456).
    Hill, Attorney General of Texas, et al. v. Printing Industries of the Gulf Coast et al.
   Appeal from D. C. S. D. Tex. Motion of appellees to vacate stay entered by this Court on October 11, 1974 [ante, p. 805], denied.


text:
    No. A-274.
    Economic Consultants, Inc., dba E-C Tape Service, Inc., et al. v. Mercury Record Productions, Inc., et al.
   Application for stay of mandate of Supreme Court of Wisconsin, presented to Mr. Justice Blackmun, and by him referred to the Court, denied.


text:
    No. A-284 (74-409).
    Rose, Warden v. United States District Court for the Western District of Tennessee, Western Division, et al.
   Application to stay orders of Judge Robert M. McRae, entered August 22, 1974, presented to Mr. Justice Stewart, and by him referred to the Court, denied.


text:
    No. A-334.
    Hurst et al. v. United States.
   C. A. 6th Cir. Application for order to have court-appointed counsel relieved and other relief, presented to Mr. Justice Stewart, and by him referred to the Court, denied.


text:
    No. 50,
    Orig.
    Vermont v. New York et al.
   It is ordered by this Court that the Honorable R. Ammi Cutter be, and he is hereby, awarded the sum of $50,000 as compensation for his services as Special Master in this case, and that his disbursements totaling $5,150 be allowed. It is further ordered that the fee and disbursements be paid by the parties in the following amounts: $20,000 by the State of Vermont and $35,150 by the International Paper Co. It is further ordered that the Special Master is hereby discharged. [See 417 U. S. 270.]


text:
    No. 73-689.
    Maness v. Meyers, Judge.
   169th Jud. Dist. Ct. Tex., Bell County. [Certiorari granted, 416 U. S. 934.] Motion of Texas Criminal Defense Lawyers Assn, for leave to file a brief as amicus curiae denied.


text:
    No. 73-820.
    United States v. Guana-Sanchez.
   C. A. 7th Cir. [Certiorari granted, 417 U. S. 967.] Motion for appointment of counsel granted. It is ordered that Joseph Beeler, Esquire, of Miami, Fla., a member of the Bar of this Court, be, and he is hereby, appointed to serve as counsel for respondent in this case.


text:
    No. 73-822.
    Fry et al. v. United States.
   Temp. Emerg. Ct. App. [Certiorari granted, 415 U. S. 912.] Motions of the State of California and California State Employees’ Assn, for leave to participate in oral argument as amici curiae denied.


text:
    No. 73-1012.
    Gulf Oil Corp. et al. v. Copp Paving Co., Inc., et al.
   C. A. 9th Cir. [Certiorari granted, 415 U. S. 988.] Motion of American Building Maintenance Industries for leave to file a brief as amicus curiae denied.


text:
    No. 73-1018.
    United States v. Mazurie et al.
   C. A. 10th Cir. [Certiorari granted, 415 U. S. 947.] Motion of respondents to dismiss writ of certiorari denied. Motion of the State of Wyoming for leave to participate in oral argument as amicus curiae granted.


text:
    No. 73-1256.
    Connell Construction Co., Inc. v. Plumbers & Steamfitters Local Union No. 100, United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO.
   C. A. 5th Cir. [Cer-tiorari granted, 416 U. S. 981.] Motion of Associated General Contractors of America et al. for leave to participate in oral argument as amid curiae denied.


text:
    No. 73-1279.
    Williams & Wilkins Co. v. United States.
   Ct. Cl. [Certiorari granted, 417 U. S. 907.] Motion of National Education Assn, for leave to participate in oral argument as amicus curiae denied.

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


text:
    No. 73-1380.
    No. 73-1666.
    No. 73-1667.
    Chemehuevi Tribe of Indians et al. v. Federal Power Commission et al.; Arizona Public Service Co. et al. v. Chemehuevi Tribe of Indians et al.; and Federal Power Commission v. Chemehuevi Tribe of Indians et al.
   C. A. D. C. Cir. [Certiorari granted, 417 U. S. 944.] Motion of Arizona Public Service Co. et al. for divided argument granted; however, no additional time for oral argument is allowed.


text:
    No. 73-1573.
    Withrow et al. v. Larkin.
   Appeal from D. C. E. D. Wis. [Probable jurisdiction noted, 417 U. S. 943.] Consideration of appellee’s suggestion of mootness deferred to oral argument.


text:
    No. 74-125.
    Alamo Land & Cattle Co., Inc. v. Arizona.
   C. A. 9th Cir. The Solicitor General is invited to file a brief in this case expressing the views of the United States.


text:
    No. 73-1820.
    No. 74-132.
    Philbrook, Commissioner, Department of Social Welfare v. Glodgett et al.; and Weinberger, Secretary of Health, Education, and Welfare v. Glodgett et al.
   Appeals from D. C. Vt. Motion of appellees for leave to proceed in forma pauperis granted. In No. 73-1820, probable jurisdiction noted. In No. 74-132, further consideration of question of jurisdiction postponed to hearing of case on the merits. Cases consolidated and a total of one hour allotted for oral argument. Reported below: 368 F. Supp. 211.


text:
    No. 73-7031.
    Fowler v. North Carolina.
   Sup. Ct. Ñ. C. Motion for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 74-70.
    Goldfarb et ux. v. Virginia State Bar et al.
   C. A. 4th Cir. Motion of Clark C. Havighurst for leave to file a brief as amicus curiae granted. Certio-rari granted.

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


text:
    No. 73-1830.
    Szekula v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-1903.
    Zlotnick et al. v. District of Columbia Redevelopment Land Agency et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-1906.
    Herman Investment Co. et al. v. Loeffler, Trustee, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-1984.
    No. 73-1990.
    New York Shipping Assn., Inc. v. Federal Maritime Commission et al.; and International Longshoremen’s Assn., AFL-CIO v. Federal Maritime Commission et al.
   C. A. 2d Cir. Certiorari denied. Reported below: 495 F. 2d 1215.


text:
    No. 73-2018.
    In re Rosen.
   Ct. App. D. C. Certi-orari denied.


text:
    No. 73-2022.
    Rollins Telecasting, Inc. v. National Labor Relations Board.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-2048.
    Matlock Truck Body & Trailer Corp. v. National Labor Relations Board.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-2061.
    Smith v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-6800.
    Baxter v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6895.
    Somerset v. North Carolina.
   Ct.' App. N. C. Certiorari denied.


text:
    No. 73-6907.
    Holmes v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-6908.
    Peterson v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-6920.
    Moody v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6921.
    Vallejo v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-6940.
    Brown v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 73-6942.
    Miller v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6945.
    Shabazz v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 73-6947.
    Duckett et al. v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 73-6956.
    Jones et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 73-6963.
    Kohn v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-6971.
    Combs v. Henderson, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6978.
    Owen v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-6981.
    Ricketson v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 73-6990.
    Kearns v. Weinberger, Secretary of Health, Education, and Welfare.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-6993.
    Rucker v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-6994.
    Miranda v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-7007.
    Martinez v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-7010.
    Buster v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 73-7017.
    Valenti v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-7033.
    Washington v. McCarthy, Men’s Colony Superintendent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-7036.
    Noland v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-7071.
    McCravy v. Rose, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 73-7103.
    Pfister v. Phoenix of Hartford Insurance Co. et al.
   Sup. Ct. La. Certiorari denied.


text:
    No. 73-7104.
    Murray v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 73-7105.
    Brown v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 73-7106.
    Peichev v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-7109.
    Burke v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 73-7110.
    Davis v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 73-7113.
    DiJohn v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 73-7114.
    Duhart v. United States.
   C. A..9th Cir. Certiorari denied.


text:
    No. 74-41.
    Nalls v. Nevada.
   Sup. Ct. Nev. Certio-rari denied.


text:
    No. 74-44.
    Fahrig et al. v. Ledford, Executor.
   Ct. App. Ohio, Montgomery County. Certiorari denied.


text:
    No. 74-135.
    Yakima Tribe of Indians of the Yakima Reservation v. Confederated Tribes of the Colville Reservation.
   Ct. Cl. Certiorari denied.


text:
    No. 74-137.
    Wiest et al. v. Mt. Lebanon School District.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 74-140.
    Ronwin v. Committee on Examinations and Admissions of the Supreme Court of Arizona.
   Sup. Ct. Ariz. Certiorari denied.


text:
    No. 74-149.
    Allied Sheet Metal Fabricators, Inc. v. Peoples National Bank of Washington.
   Ct. App. Wash. Certiorari denied.


text:
    No. 74-151.
    Zenith Vinyl Fabrics Corp. v. Ford Motor Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-162.
    Dillinger v. Mazza.
   Ct. App. Ohio, Hancock County. Certiorari denied.


text:
    No. 74-163.
    Bruenn v. Bruenn.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 74-164.
    Ohio Hoist Manufacturing Co. v. LiRocchi, dba Cable Climber Co.
   C. A. 9th Cir. Cer-tiorari denied.


text:
    No. 74-173.
    Blackshear v. Blackshear.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 74-177.
    Pruitt v. Illinois.
   App. Ct. Ill., 2d Dist. Certiorari denied.


text:
    No. 74-178.
    Nassau County Association of Insurance Agents, Inc., et al. v. Aetna Life & Casualty Co. et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 74-179.
    Jefferson Chemical Co., Inc. v. General Tire & Rubber Co.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 74-182.
    Goodbody & Co. et al. v. Palomar Financial Corp.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 74-186.
    Glinsey et al. v. Baltimore & Ohio Railroad Co.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-5008.
    Plummer v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 74-5010.
    Cushnie v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-5013.
    Lisi v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 74-5033.
    Lebron v. United States.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 74-5035.
    Hawkins v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 74-5036.
    LeFlore v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-5057.
    Vessels v. Estelle, Corrections Director.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-5142.
    Ross v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 73-1583.
    Marcello v. Saxbe, Attorney General.
   C. A. D. C. Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-1967.
    Lee v. California.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-6670.
    Rose v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-6902.
    Martinez v. Texas.
   Ct. Crina. App. Tex. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-6983.
    Carter v. United States.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-9.
    Mauro v. United States.
   C. A. 2d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-5012.
    Sholars v. Matter et al.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-5166.
    Harris v. Procunier, Corrections Director.
   C. A. 9th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 73-1679.
    No. 73-1680.
    Linda Pollin Memorial Housing Corp. et al. v. Marshall et al.; and Tenants’ Council of Tiber Island-Carrollburg Square et al. v. Lynn, Secretary of Housing and Urban Development, et al.
   C. A. D. C. Cir. Motion of respondents Marshall et al. for leave to proceed in forma pauperis in No. 73-1679 granted. Certiorari denied. Reported below: No. 73-1679, 162 U. S. App. D. C. 56, 497 F. 2d 643; No. 73-1680, 162 U. S. App. D. C. 61, 497 F. 2d 648.