text:
    No. 74-6152.
    Lujan v. Gengler, Warden, et al.
   C. A. 2d Cir. Certiorari denied.


source: Caselaw Access Project

license: Public Domain

text:
    No. 74-6156.
    Ried v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-6172.
    Cagle v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-6181.
    No. 74-6268.
    No. 74-6269.
    Warren, aka Chunn v. United States. Warren, aka Chunn v. United States; and Warren, aka Chunn v. United States.
   C. A. 2d Cir.;

C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6185.
    Hurt v. United States.
   C. A. 4th

Cir. Certiorari denied.


text:
    No. 74-6188.
    Boston v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 74-6194.
    Richardson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-6217.
    Rosas v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6196.
    Holland v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-6204.
    Lee v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 74-6206.
    Lawrence v. Henderson, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6209.
    Flores v. McCune, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 74-6221.
    Van Buren v. United States.
   C. A.

10th Cir. Certiorari denied.


text:
    No. 74-6229.
    Campbell v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-6234.
    Scott v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 74-6240.
    No. 74-6256.
    Moore v. United States; and Morrow v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6244.
    Lee v. United States.
   C. A. D. C. Cir.

Certiorari denied.


text:
    No. 74-6265.
    Stabler v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 74-6277.
    Rethorst v. Commissioner of Internal Revenue.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 74-6343.
    Daye v. Bounds, Correction Commissioner, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-6346.
    Miller v. Arkansas.
   Sup. Ct. Ark. Certiorari denied.


text:
    No. 74-6349.
    Grayton v. Enomoto, Corrections Director.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 74-6351.
    McClindon v. Griggs, Institution Superintendent.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 74-6353.
    Dunker v. Vinzant.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 74-6356.
    Davidson v. California et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 74-6359.
    Bell v. Maryland.
   Ct. Sp. App. Md. Certiorari denied.


text:
    No. 74-6361.
    Braswell v. Gray, Prison Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-6362.
    Brown v. Oregon ex rel. Juvenile Department for Lane County.
   Ct. App. Ore. Certiorari denied.


text:
    No. 74-6363.
    Healey v. New York.
   App. Div., Sup. Ct. N. Y., 2d Jud. Dept. Certiorari denied.


text:
    No. 74-6364.
    Hardaway v. Sherman Enterprises, Inc., et al.
   Ct. App. Ga. Certiorari denied.


text:
    No. 74-6367.
    Martinez v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 74-6404.
    Sharpe v. Johnson, Correctional Superintendent.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-1062.
    Caldwell v. City of New Orleans.
   Crim. Dist. Ct. La., Orleans Parish. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-6416.
    Denman et al. v. Atkins et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 74-1057.
    Commodity Option Co., Inc., et al. v. Bernhardt et al.
   Sup. Ct. Colo. Certiorari denied.

Mb. Justice Douglas would grant certiorari.


text:
    No. 74-1097.
    Consumers Union of United States, Inc. v. Kissingee, Secretary of State, et al.
   C. A. D. C. Cir. Certiorari denied.

Me. Justice Douglas would grant certiorari.


text:
    No. 74-1160.
    George R. Whitten, Jr., Inc., dba Whitten Corp. v. Paddock Pool Builders, Inc., et al.
   C. A. 1st Cir. Certiorari denied.

Me. Justice Douglas would grant certiorari.


text:
    No. 74-1076.
    Washington v. Murray, aka Terry, et al.
   Sup Ct. Wash. Motion of respondent Murray for leave to proceed in forma pauperis granted. Certiorari denied.


author: Me. Justice Beennan,

text:
    No. 74-1130.
    Friedman et al. v. United States.
   C. A. 8th Cir. Certiorari denied.

Me. Justice Beennan,

with whom Me. Justice Stewaet and Me. Justice Mabshall join,

dissenting.

Petitioner Sooner State News Agency was convicted in the United States District Court for the Eastern District of Arkansas of transporting obscene literature through the United States mail 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.”

Petitioners Friedman, Mitchum, Fishman, and Boyd were convicted in the same District Court of conspiracy to violate 18 U. S. C. § 1465. 18 U. S. C. § 371. The Court of Appeals for the Eighth Circuit affirmed all petitioners’ convictions. 506 F. 2d 511 (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, I expressed the view that “[w]hatever 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 judgments of the Court of Appeals for the Eighth Circuit were 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 material 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, petitioners must be given an opportunity to have their cases decided on, and to introduce evidence relevant to, the legal standard upon which their convictions have ultimately come to depend. Thus, even on its own terms, the Court should vacate the judgments below and remand for a determination whether petitioners should be afforded a new trial under local community standards.


text:
    No. 74-1037.
    No. 74-1171.
    No. 74-5950.
    Alligator Co., Inc. v. La Chemise Lacoste et al., Gabriel et al. v. Levin et al., Talk v. United States,
   ante, p. 937;

ante, p. 915; and

ante, p. 932. Petitions for rehearing denied.


text:
    No. 74-5906.
    Brogan v. Weinberger, Secretary of Health, Education, and Welfare,
   420 U. S. 1006. Motion for leave to file petition for rehearing denied.


text:
    June 3, 1975
    No. 74-1300.
    Louisiana v. Herman.
   Sup. Ct. La.

Certiorari dismissed under this Court’s Rule 60.


text:
    June 4, 1975
    No. 74-6344.
    Duhart v. United States.
   C. A. 6th Cir. Certiorari dismissed under this Court’s Rule 60.


text:
    June 9, 1975
    No. 74-1296.
    No. 74-1297.
    Water Transport Assn. et al. v. United States et al.; and American Waterways Operators, Inc., et al. v. United States et al.
   Affirmed on appeal from D. C. D. C.

Mr. Justice Powell took no part in the consideration or decision of these appeals.


text:
    No. 74-487.
    Clover Bottom Hospital & School v. Townsend et al.
   Appeal from Sup. Ct. Tenn. Motion of appellees for leave to proceed in forma pauperis granted. Appeal dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied. Mr. Justice Douglas took no part in the consideration or decision of this motion and case.


text:
    No. 74-1091.
    Farrell v. Iowa.
   Appeal from Sup. Ct. Iowa dismissed for want of substantial federal question. Mr. Justice Douglas and Mr. Justice Brennan would note probable jurisdiction and set case for oral argument.

Mr. Justice Stewart would dismiss the appeal as untimely docketed.


text:
    No. 74-1380.
    Grund v. Aldridge et al.,
   Appeal from Sup. Ct. Ala. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 74-6366.
    Hart et ux. v. Fehseke et al.
   Appeal from Sup. Ct. Iowa dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 74-6313.
    Maisel v. United States et al.
   Appeal from D. C. W. D. N. Y. dismissed.


text:
    No.---.
    In re Resignation of Carden.
   Motion of Philip M. Carden, of Nashville, Tenn., to resign as a member of the Bar of this Court is granted. It is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court.

Me. Justice Douglas took no part in the consideration or decision of this matter.


text:
    No. D-49.
    In re Disbarment of Ishler.
   It is ordered that Loren Grant Ishler, of Toledo, Ohio, be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should. not be disbarred from the practice of law in this Court.

Mb. Justice Douglas took no part in the consideration or decision of this matter.


text:
    No. 9, Orig.
    United States v. Louisiana et al. (Louisiana Boundary Case).
   Motion of Special Master for allowance of compensation granted and it is ordered that such costs be borne equally by the parties to this litigation.

Mb. Justice Douglas and Mb. Justice Mabshall took no part in the consideration or decision of this motion.

[For earlier orders herein, see, e. g., 420 U. S. 904.]


text:
    No. 74-389.
    Albemarle Paper Co. et al. v. Moody et al.
   C. A. 4th Cir. [Certiorari granted, 419 U. S. 1068.] Motion of petitioners for leave to file supplemental brief after argument granted.

Mb. Justice Douglas and Me. Justice Powell took no part in the consideration or decision of this motion.


text:
    No. 74-6321.
    Stratton v. Grossman et al.
   Motion ' for leave to file petition for writ of mandamus denied.


text:
    No. 74-850.
    Weinberger, Secretary of Health, Education, and Welfare v. Weber.
   C. A. 9th Cir. [Certiorari granted, 420 U. S. 989.] Motion to dispense with printing appendix granted.

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


text:
    No. 74-891.
    Paul et al. v. Davis.
   C. A. 6th Cir. [Certiorari granted, ante, p. 909.] Motion of Americans for Effective Law Enforcement, Inc., et al., for leave to file a brief as amici curiae granted.

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


text:
    No. 74-1213.
    California Department of Industrial Relations, Division of Industrial Welfare, et al. v. Homemakers, Inc., of Los Angeles.
   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. 74-1216.
    Ristaino et al. v. Ross.
   C. A. 1st Cir. [Certiorari granted, ante, p. 987.] Motion for appointment of counsel granted and Michael G. West, Esquire, of Springfield, Mass., is appointed to serve as counsel for respondent in this case.

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


text:
    No. 74-5808.
    Francis v. Henderson, Warden.
   C. A. 5th Cir. [Certiorari granted, ante, p. 946.] Motion of petitioner for appointment of counsel granted and Bruce S. Rogow, Esquire, of Miami, Fla., is appointed to serve as counsel for petitioner in this case.


text:
    No. 74-6584.
    Lipsman v. Giardino et al.
   C. A. 2d Cir. Motion to expedite consideration of petition for writ of certiorari denied.

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


text:
    No. 74-1302.
    No. 74-1316.
    Dunlop, Secretary of Labor, et al. v. Turner Elkhorn Mining Co. et al.; and Turner Elkhorn Mining Co. et al. v. Dunlop, Secretary of Labor, et al.
   Appeals from D. C. E. D. Ky. Probable jurisdiction noted. Cases consolidated and a total of one hour allotted for oral argument.


text:
    No. 74-1329.
    Hynes et al. v. Mayor of Borough of Oradell et al.
   Appeal from Sup. Ct. N. J. Probable jurisdiction noted.


text:
    No. 74-958.
    United States et al. v. Janis.
   C. A. 9th Cir. Certiorari granted.


text:
    No. 74-1179.
    United States v. Miller.
   C. A. 5th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 74-1187.
    Baxter et al. v. Palmigiano.
   C. A. 1st Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Case set for oral argument with No. 74-1194, immediately infra.


text:
    No. 74-1194.
    Enomoto, Corrections Director, et al. v. Clutchette et al.
   C. A. 9th Cir. Motion of respondents for leave to proceed in forma pauperis and certiorari granted. Case set for oral argument with No. 74-1187, immediately supra.


text:
    No. 74-1152.
    Artemis et al. v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 74-1201.
    Mizani v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-1235.
    Sims v. Fox et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-1239.
    Mitchell Bros. Truck Lines v. Gilstrap et al.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 74-1288.
    No. 74-1319.
    Liberty Mutual Insurance Co. v. Wetzel et al.; and Wetzel et al. v. Liberty Mutual Insurance Co.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-1299.
    Service Technicians, Inc. v. United States.
   Ct. Cl. Certiorari denied.


text:
    No. 74-1306.
    Honeycutt v. Aetna Insurance Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 74-1307.
    Bowman et al. v. Presiding Judge, Superior Court of California for the County of Los Angeles, et al.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 74-1311.
    Hudson Valley Asbestos Corp. v. Tougher Heating & Plumbing Co., Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 74-1315.
    Pless v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 74-1320.
    Andersen et al. v. Fear.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-1321.
    Feyen v. American Mail Line, Ltd.
   Sup. Ct. Ore. Certiorari denied.


text:
    No. 74-1325.
    Duggan et al. v. International Association of Machinists.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 74-1338.
    Melody Recordings, Inc., et al. v. Jondora Music Publishing Co. et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-1348.
    Austin v. Indiana.
   Sup. Ct. Ind. Certiorari denied.


text:
    No. 74-1356.
    Raley v. Nicholas et ux.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 74-6167.
    Hawk v. Superior Court of California, Solano County.
   Ct. App. Cal., 1st App. Dist. Certiorari denied.


text:
    No. 74-6203.
    Daniel v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-6205.
    Davis v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6211.
    Montoya v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 74-6236.
    Burks v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6247.
    Thompson v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-6253.
    No. 74-6261.
    No. 74-6262.
    Boerner v. United States; Boerner v. United States; and Beauford v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6255.
    Gardfrey v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 74-6260.
    Sellaro v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 74-6281.
    Wasson v. Oklahoma.
   Ct. Crim. App. Okla. Certiorari denied.


text:
    No. 74-6282.
    Boruski v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 74-6298.
    Pollard v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6308.
    Barker et al. v. United States.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 74-6325.
    Branson v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-6338.
    Hall v. Maryland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-6339.
    Hemminger v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 74-6372.
    Carter v. Bennett.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6373.
    Cannon v. Dirker.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-6374.
    Ray v. Kane, Attorney General of Pennsylvania, et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 74-6379.
    Porzuczek, Guardian v. Towner et al.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 74-6385.
    Brockman v. South Carolina et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 74-6390.
    Patterson et al. v. Ault, Warden.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6392.
    Donovan v. California.
   Ct. App. Cal., 2d App. Dist. Certiorari denied.


text:
    No. 74-6393.
    Thompson v. McManus, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 74-6400.
    White v. Texas.
   Ct. Crim. App. Tex. Certiorari denied.


text:
    No. 74-6426.
    Brager v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 74-6432.
    Greene et al. v. Chandler, Mayor of Memphis, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 74-6456.
    Albertson v. Michigan.
   Cir. Ct., Berrien County, Mich. Certiorari denied.


text:
    No. 73-839.
    Ohio v. United States.
   Temp. Emerg. Ct. App. Certiorari denied.

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


text:
    No. 73-1565.
    Iowa v. Dunlop, Secretary of Labor.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 74-739.
    United States v. California et al.
   Temp. Emerg. Ct. App. Certiorari denied.

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


text:
    No. 74-5979.
    Fideler v. United States.
   C. A. 5th Cir. Certiorari denied.

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


text:
    No. 74-6395.
    Hemstreet v. Nemir et al.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.

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


text:
    No. 74-1163.
    Critzer et al. v. United States.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-1202.
    Fifty-five Gambling Devices et al. v. United States.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-1205.
    Chale et al. v. United States.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-1305.
    Sloca v. Bayne.
   C. A. 8th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-6220.
    Schofield v. United States.
   C. A. 3d Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-1314.
    Louisville Lodge No. 6, Fraternal Order of Police, et al. v. Burton, Director of Public Safety, et al.
   Ct. App. Ky. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-1370.
    Lakeside Hospital Assn. et al. v. First National Bank of Kansas City et al.
   Sup. Ct. Mo. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-6186.
    Wilkins v. North Carolina.
   Sup. Ct. N. C. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-6251.
    Kirby v. Sturges, Chairman, Parole and Pardon Board of Illinois.
   C. A. 7th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-6388.
    Cryer v. Prestressed Concrete Products Co., Inc., et al.
   C. A. 5th Cir. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-6434.
    B. J. R. v. District of Columbia.
   Ct. App. D. C. Certiorari denied.

Mr. Justice Douglas would grant certiorari.


text:
    No. 74-6401.
    Beckett v. Warren, Attorney General of Wisconsin, et al.
   C. A. 7th Cir. Application for bail, presented to The Chief Justice, and by him referred to the Court, denied. Certiorari denied.

Mr. Justice Douglas took no part in the consideration or decision of the application.


text:
    No. 73-6868.
    No. 74-916.
    No. 74-1136.
    Fernandez et al. v. United States, Radisich v. Radisich, Derby v. Connecticut Light & Power Co.,
   420 U. S. 990;

420 U. S. 992; and

ante, p. 931. Petitions for rehearing denied.

Mr. Justice Douglas took no part in the consideration or decision of these petitions.


text:
    No. 74-80.
    No. 74-277.
    Kugler, Attorney General of New Jersey, et al. v. Helfant; and Helfant v. Kugler, Attorney General of New Jersey, et al.,
   ante, p. 117. Petition for rehearing denied.

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


text:
    No. 74-345.
    R. J. Reynolds Tobacco Co. et al. v. American President Lines, Ltd., et al.,
   419 U. S. 1070. Motion for leave to file petition for rehearing denied.

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


text:
    No. 74-817.
    Ross v. Ross,
   420 U. S. 947. Motion of petitioner for leave to proceed further herein in forma pauperis granted. Petition for rehearing denied.

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


author: Mr. Justice Reitnquist

text:
    INTERCOUNTY CONSTRUCTION CORP. et al. v. WALTER, DEPUTY COMMISSIONER, BUREAU OF EMPLOYEES’ COMPENSATION, U. S. DEPARTMENT OF LABOR, et al.
    No. 74-362.
    Argued April 23, 1975 —
    Decided June 16, 1975

      John C. Duncan III argued the cause and filed a brief for petitioners.

      Frank H. Easterbrook argued the cause for respondent Walter pro hac vice. With him on the brief were Solid-

      tor General Bork and Marshall H. Harris. Jefferson de R. Capps filed a brief for respondent Jones.
   Mr. Justice Reitnquist

delivered the opinion of the Court.

Section 13 of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. 1432, 33 U. S. C. § 913, provided: “The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the injury.” We must decide in this case whether § 22 of the same Act, as amended, 33 U. S. C. § 922, bars consideration of a claim timely filed under § 13, which has not been the subject of an order by the deputy commissioner within one year after the cessation of voluntary compensation payments.

Petitioners in the instant case are Intercounty Construction Corp., an employer, and Hartford Accident and Indemnity Co., its insurance carrier. Respondents are Noah C. A. Walter, a deputy commissioner of the Bureau of Employees’ Compensation which was charged with administration of the Act, and Mary Jones, an intervenor below who is the personal representative of Charles Jones, an employee claimant under the Act. Claimant was injured in 1960 while working for the employer in the District of Columbia. Shortly thereafter, well within the one-year statute of limitations established by § 13 of the Act, he filed a claim for total permanent disability with the Bureau of Employees’ Compensation. The insurance carrier, admitting claimant’s injury in the course of employment while denying permanent disability to the extent stated in the claim, filed notice that it had begun payment of $54 per week, the amount payable for total disability, in advance of an award by the deputy commissioner.

In 1965, the carrier filed notice that it was controverting the pending claim on the ground, inter alia, of extent of disability and that it was reducing claimant’s weekly compensation to $27 per week, the rate for 50% temporary disability. In 1966 a claims examiner from the Bureau held a hearing on the pending claim for total permanent disability benefits but the hearing was adjourned without action on the claim. On January 23, 1968, the carrier stopped payment of compensation to the claimant since its payments to claimant totaled $17,280, its maximum liability under the Act at the time for any condition other than permanent total disability or death. On February 11, 1970, two years after his last receipt of a voluntary payment of compensation from the carrier, claimant requested a hearing on his previously filed claim for total permanent disability. Although the claim had been pending since its timely filing in 1960, neither the carrier nor the claimant had requested action by the Bureau in the intervening 10 years to adjudicate its merits and no order or award had been entered during this period resolving it.

Deputy Commissioner Walter, reversing his own initial determination that the claim was time barred under § 22 of the Act, concluded that § 22 was not applicable to this claim and entered an order awarding claimant compensation for permanent total disability. Petitioners then brought this suit under 33 U. S. C. § 921 (b) against respondent Walter to enjoin enforcement of the award. The United States District Court for the District of Columbia granted summary judgment for the petitioners, holding that § 22 of the Act barred the claim. On appeal, the United States Court of Appeals for the District of Columbia Circuit reversed, holding that § 22 of the Act, applicable only to' the power of the deputy commissioner to modify prior orders, erected no barrier to consideration of claims which had not been the subject of a prior order by the deputy commissioner.

Because of the conflict between the holding of the Court of Appeals in this case and that of the United States Court of Appeals for the Fifth Circuit in Strachan Shipping Co. v. Hollis, 460 F. 2d 1108, cert. denied sub nom. Lewis v. Strachan Shipping Co., 409 U. S. 887 (1972), we granted certiorari. 419 U. S. 1119 (1975).

Section 22 of the Act, as amended, provides:

“Modification of awards
“Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, or at any time prior to one year after the rejection of a claim, review a compensation case in accordance with the procedure prescribed in respect of claims in section 919 of this title, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation, or award compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the deputy commissioner with the approval of the Secretary.”

Petitioners urge, and the Fifth Circuit in Strachan Shipping Co. held, that this provision superimposes on the express statute of limitations contained in § 13 of the Act, providing a time period for the filing of claims, an additional limitations period requiring action by the deputy commissioner on pending claims within one year after the date of the last voluntary payment of compensation where such payments have been made. In their view, since no action was taken on the pending claim in the instant case until more than one year after the claimant's last receipt of a voluntary compensation payment, the claim was time barred under § 22.

In contrast, respondents argue, and the Court of Appeals for the District of Columbia Circuit held, that § 22 is applicable only to the power of the deputy commissioner to modify prior orders and awards issued by him. In their view, it has no application to timely filed claims on which no prior action has been taken by the deputy commissioner. In this case they say that since the timely filed and still-pending 1960 claim had never been the subject of action by the Deputy Commissioner prior to the order here in issue, § 22 has no application to it.

We agree with the Court of Appeals for the District of Columbia Circuit that § 22 speaks ambiguously to the question before us. The statutory references to “new order,” “new compensation order,” and “the rejection of a claim,” and the limitation of the granted authority to “a change in conditions or because of a mistake in a determination of fact by the deputy commissioner” support an interpretation of the section's one-year time limit as applicable only to the power of the deputy commissioner to modify previously entered orders. Such an interpretation would make the section inapplicable to the authority of the deputy commissioner to enter an initial order with respect to a claim timely filed. On the other hand, the language “whether or not a compensation order has been issued” points to the applicability of the section's one-year time limit to all previously filed claims, even though not the subject of any prior order by the deputy commissioner. Strachan Shipping Co. v. Hollis, 460 F. 2d, at 1116. This phrase might also merely mean, when read in context, that the time limit established by this provision, applicable only to the modification of previously entered orders, runs from the date of the last voluntary payment even though the order sought to be modified is entered after receipt of the last voluntary payment. 163 U. S. App. D. C., at 150, 500 F. 2d, at 818; Strachan Shipping Co. v. Hollis, supra, at 1117 (Ainsworth, J., dissenting). These conflicting indicia are not completely reconcilable if the language in the statute is considered alone, and so we must resort to the legislative history of the provision.

Section 22 was first enacted as part of the original Longshoremen’s and Harbor Workers’ Compensation Act in 1927. 44 Stat. 1424 — 1446. As petitioners concede, the provision as originally drafted applied only to the modification of orders previously entered by the deputy commissioner:

“modification of awards
“Sec. 22. Upon his own initiative, or upon application of any party in interest, on the ground of a change in conditions, the deputy commissioner may at any time during the term of an award and after the compensation order in respect of such award has become final, review such order in accordance with the procedure prescribed in respect of claims in section 19, and in accordance with such section issue a new compensation order which may terminate, continue, increase, or decrease such compensation. Such new order shall not affect any compensation paid under authority of the prior order.” Id., at 1437.

As originally adopted, § 22 provided power to the deputy commissioner to modify a prior order only “during the term of an award” and the provision was construed to constrict the power to modify a previous order to the period of payments pursuant to an award. Cf. F. Jarka Co. v. Monahan, 29 F. 2d 741, 742 (Mass. 1928). The United States Employees’ Compensation Commission (USECC), then charged with the administration of the Act, repeatedly recommended that § 22 be amended to allow continuing review of previously entered orders. 14th Ann. Rep. USECC 75 (1930); 15th Ann. Rep. USECC 77 (1931); 16th Ann. Rep. USECC 49 (1932); 17th Ann. Rep. USECC 18 (1933). See Banks v. Chicago Grain Trimmers, 390 U. S. 459, 463-465 (1968). In none of the annual reports of the USECC is there any indication that amendment of this provision was sought for any purpose other than broadening the length of time during which the deputy commissioner could exercise his power to modify previously entered orders.

In 1934 Congress responded by amending this provision to read:

“modification of compensation cases
“Sec. 22. Upon his own initiative, or upon the application of any party in interest, on the ground of a change in conditions or because of a mistake in a determination of fact by the deputy commissioner, the deputy commissioner may, at any time prior to one year after the date of the last payment of compensation, whether or not a compensation order has been issued, review a compensation case in accordance with the procedure prescribed in respect of claims in section 19, and in accordance with such section issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation. Such new order shall not affect any compensation previously paid, except that an award increasing the compensation rate may be made effective from the date of the injury, and if any part of the compensation due or to become due is unpaid, an award decreasing the compensation rate may be made effective from the date of the injury, and any payment made prior thereto in excess of such decreased rate shall be deducted from any unpaid compensation, in such manner and by such method as may be determined by the deputy commissioner with the approval of the commission.” 48 Stat. 807.

This amendment inserted the phrase “whether or not a compensation order has been issued,” the phrase upon which the petitioners’ statutory claim rests, and they naturally urge that it was intended to apply the one-year time limit of § 22, formerly applicable only to the modification of previously entered orders, to all pending claims. But the legislative history does not bear out petitioners’ contention.

The committee reports of both Houses of Congress accompanying this change explain it in the following language:

“[This bill] amends section 22 of the existing act so as to broaden the grounds on which a deputy commissioner can modify an award and also while strictly limiting the period, extends the time within which such modification may be made. . . .
“The amendment is in line with the recommendation of the [USECC] except that it limits to 1 year after the date of the last payment of compensation the time during which such modification may be made.” S. Rep. No. 588, 73d Cong., 2d Sess., 3-4 (1934); H. R. Rep. No. 1244, 73d Cong., 2d Sess., 4 (1934).

As we similarly stated in Banks v. Chicago Grain Trimmers, supra, at 464: “The purpose of this amendment was to 'broaden the grounds on which a deputy commissioner can modify an award.’ ” See, e. g., O’Keeffe v. Aerojet General Shipyards, 404 U. S. 254, 255-256 (1971). There is no indication that Congress sought by this amendment to superimpose a new statute of limitations, in addition to the required period for filing provided by § 13, on all claims filed under the Act upon which payments are made. Taken in historical and statutory context, the phrase “whether or not a compensation order has been issued” is properly interpreted to mean merely that the one-year time limit imposed on the power of the deputy commissioner to modify existing orders runs from the date of final payment of compensation even if the order sought to be modified is actually entered only after such date.

Section 22 was amended in 1938 to read as it presently does. 52 Stat. 1167. The chief change was permitting the deputy commissioner to review a case “at any time prior to one year after the rejection of a claim.” Such amendment would have been largely superfluous if Congress in 1934 had already extended this provision to cover claims whether or not previously disposed of by the deputy commissioner. And in fact the legislative history surrounding the 1938 amendment reveals a clear congressional understanding that § 22 applied only to modification of prior orders of the deputy commissioner. Thus, for example, the House Report accompanying the 1938 amendment stated that “[t]he purpose of this amendment is to extend to such cases the same provisions which now apply in connection with other cases finally acted upon by the deputy commissioner.” H. R. Rep. No. 1945, 75th Cong., 3d Sess., 9 (1938). (Emphasis added.) See also H. R. Rep. No. 1807, 74th Cong., 1st Sess., 5 (1935); S. Rep. No. 1199, 74th Cong., 1st Sess., 4 (1935); H. R. Rep. No. 2237, 74th Cong., 2d Sess., 5 (1936); S. Rep. No. 1988, 75th Cong., 3d Sess., 8-9 (1938). Regulations issued under the Act by the USECC, contemporaneously with passage of the 1938 amendment, reflect an administrative understanding that § 22 governed “application [s] to the deputy commissioner for review of a compensation case for modification of an award.” 20 CFR § 31.15 (1938); 20 CFR § 31.16 (1949).

The Fifth Circuit in Strachan Shipping Co. v. Hollis, supra, indicated its belief that the absence of a procedure for orderly conclusion of compensation cases was incompatible with a scheme of cooperation and voluntary payments by employers and insurers envisaged by the Act. 460 F. 2d, at 1116. The court below disagreed, indicating its belief that the present procedures giving a carrier the right to compel the deputy commissioner to adjudicate claims eliminate any unfairness which might result from the absence of a fixed conclusion to such cases. 163 U. S. App. D. C., at 152, 500 F. 2d, at 820. Cf. 33 U. S. C. § 919 (c); 5 U. S. C. § 706 (1); Atlantic & Gulf Stevedores, Inc. v. Donovan, 274 F. 2d 794 (CA5 1960). Whatever the merits of a fixed period for resolution of pending compensation claims not previously the subject of an order, Congress did not in § 22 establish such a period. The decision of the United States Court of Appeals for the District of Columbia Circuit is therefore

Affirmed.

       In 1972, this responsibility was transferred to the Office of Workmen’s Compensation Programs of the Department of Labor. See 20 CFR §§701.101-701.103 (1973).

       The District of Columbia Workmen’s Compensation Act incorporates by reference the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U. S. C. § 901 et seq. as amended. See D. C. Code Ann. § 36-501 (1973).

       Section 13 of the Act, 33 U. S. C. §913, provided in part:
      “The right to compensation for disability under this chapter shall be barred unless a claim therefor is filed within one year after the
      injury . . . except that if payment of compensation has been made without an award on account of such injury ... a claim may be filed within one year after the date of the last payment. . . .”
      Section 12 of the Act, 33 U. S. C. § 912 (1970 ed. and Supp, III), requires the employee to give notice of injury unless the employer has actual notice of the injury.

       Since the Act requires the employer to begin making the payments called for by the Act within 14 days after receiving notice of injury without awaiting resolution of the compensation claim and permits withholding of payments only to the extent of any dispute, voluntary payment in advance of an actual order is common under the Act. See § 14 of the Act, 33 U. S. C. § 914 (1970 ed. and Supp. III). Either party may obtain resolution of a pending claim by request under § 19 (c) of the Act, 33 U. S. C. § 919 (c), but in practice many pending claims are amicably settled through voluntary payments without the necessity of a formal order by the deputy commissioner.

       See n. 4, supra.

       The decision of the District Court is unreported.

       The decision of the Court of Appeals is reported a.t 163 U. S. App. D. C. 147, 500 F. 2d 815 (1974).


text:
    UNITED STATES v. LOUISIANA et al. (LOUISIANA BOUNDARY CASE)
    No. 9, Orig.
    Decided March 17, 1975 —
    Decree entered March 17, 1975- —
    -Supplemental decree entered June 16, 1975
   SUPPLEMENTAL DECREE

On March 17, 1975, this Court overruled the exceptions of the United States and the State of Louisiana to the Report and recommendations of the Special Master, accepted the Report of the Special Master and directed the parties “to prepare and file a decree for entry by this Court, establishing ‘a baseline along the entire coast of the State of Louisiana from which the extent of the territorial waters under the jurisdiction of the State of Louisiana pursuant to the Submerged Lands Act can be measured.’ ” 420 U. S. 529, 530. The parties have agreed on a proposed decree establishing the coastline (baseline) of Louisiana in accordance with the Court’s decision of March 17, 1975. That baseline i§ described in Exhibit A below. Accordingly, the joint motion for entry of supplemental decree is granted.

It Is Ordered, Adjudged, and Decreed :

1. As against the defendant State of Louisiana and all persons claiming under it, the United States has exclusive rights to explore the area of the Continental Shelf lying more than three geographical miles seaward of the line described in Exhibit A hereof, and to exploit the natural resources of said area and the State of Louisiana is not entitled to any interest in such lands, minerals, and resources, and said State, its privies, assigns, lessees, and other persons claiming under it are hereby enjoined from interfering with the rights of the United States in such lands, minerals and resources.

2. All sums now held impounded by the United States under the Interim Agreement of October 12, 1956, as amended, and derived from leases of lands lying wholly within the area referred to in paragraph 1 hereof are hereby released to the United States absolutely, and in accordance with the terms of the Interim Agreement, as amended, and the United States is hereby relieved of any obligation under said Agreement to impound any sums hereafter received by it from leases of lands lying wholly within said area.

3. As against the plaintiff United States and all persons claiming under it, the State of Louisiana has exclusive rights to explore the area lying within three geographical miles seaward of its coastline described in Exhibit A hereof, and to exploit the natural resources of said area, with the exceptions provided by Section 5 of the Submerged Lands Act, 67 Stat. 32, 43 U. S. C. § 1313. The United States is not entitled to any interest in such lands, minerals, and resources and said United States, its privies, assigns, lessees and other persons claiming under it are hereby enjoined from interfering with the rights of the State of Louisiana in such lands, minerals and resources.

4. All sums now held impounded by the State of Louisiana under the Interim Agreement of October 12, 1956, as amended, derived from leases of lands lying wholly within the area referred to in paragraph 3 hereof are hereby released to Louisiana in accordance with the Interim Agreement of 1956, as amended, and Louisiana is hereby relieved of any obligation under said Agreement to impound any sums hereafter received by it from leases of lands lying wholly within said area.

5. Within 90 days after the entry of the Decree—

(a) The State of Louisiana shall pay to the United States or other persons entitled thereto under the Interim Agreement of October 12, 1956, as amended, all sums, if any, now held impounded by the State of Louisiana under said Agreement, derived from or attributable to the lands, minerals or resources described in paragraph 1 hereof;

(b) The United States shall pay to the State of Louisiana or other persons entitled thereto under the Interim Agreement, as amended, all sums, if any, now held impounded by the United States under said Agreement, derived from or attributable to the lands, minerals or resources described in paragraph 3 hereof;

(c) Failure of either party to agree on correctness of the sums due the other shall in no way be reason to retard payment of sums which are admittedly due by the paying party’s own calculations.

6. Within 60 days after the entry of this Decree — •

(a) The State of Louisiana shall render to the United States and file with the Court a true, full, accurate and appropriate account of any and all other sums of money derived by the State of Louisiana since June 5, 1950, either by sale, leasing, licensing, exploitation or otherwise from or on account of any of the lands, minerals or resources described in paragraph 1 hereof;

(b) The United States shall render to the State of Louisiana and file with the Court a true, full, accurate and appropriate account of any and all other sums of money derived by the United States either by sale, leasing, licensing, exploitation or otherwise from or on account of the lands, minerals or resources described in paragraph 3 hereof;

(c) Within 60 days after receiving the account provided for by paragraph 6 (a) or 6 (b) hereof, a party may serve on the other and file with the Court its objections thereto. Thereafter either party may file such motion or motions at such time as may be appropriate to have the account settled in conjunction with the issues concerning the areas still in dispute. If neither party files such an objection within 60 days, then each party shall forthwith pay to any third person any amount shown by such accounts to be payable by it to such person, and the party whose obligation to the other party is shown by such accounts to be greater shall forthwith pay to the other party the net balance so shown to be due. If objections are filed but any undisputed net balance is shown which will be due from one party to the other party or to any third person regardless of what may be the ultimate ruling on the objections, the party so shown to be under any such obligation shall forthwith pay each such undisputed balance to the other party or other person so shown to be entitled thereto. The payments directed by paragraphs 5 (a) and 5 (b) hereof shall be made irrespective of the accountings provided for by paragraphs 6 (a) and 6(b).

7. All sums heretofore impounded pursuant to the Interim Agreement of 1956, as amended, shall be fully accounted for and paid within the 90 days provided in paragraph 5, except as to split leases that accounting and payment may be deferred on royalty revenue from (a) non-unitized wells with completion points at unidentified locations or locations controverted by the parties; and (b) units partially shoreward of the three-mile boundary as to which there is no present agreement that participation is on a surface acreage basis.

Funds from split leases not accounted for and paid pursuant to the preceding sentence shall be the subject of the accounting to follow the next decree of this Court in this case, unless the parties agree on a prior distribution.

Except as provided above for accountings and payment, pending further order of the Court, leases of land lying partly within three miles of the line described in paragraph 9 hereof shall be in no way affected by anything contained in this Decree.

8. The parties may by agreement modify the time for accounting and payment in whole or part as the progress of technical work may indicate is necessary. It is understood that the parties may be unable to agree on whether offsets are permitted or whether interest may be due on funds impounded pursuant to the Interim Agreement of October 12, 1956, or upon calculations or audits, and these issues, as well as others not expressly treated herein, shall in no way be affected by this Decree.

9. The coastline or baseline referred to in paragraphs 1 and 3, supra, is described by coordinates in the Louisiana plane coordinate system, south zone, as set forth in Exhibit A, appended to this Decree. This coastline supersedes all prior coastline descriptions of former decrees in this case and is the past and present coastline and shall constitute the coastline as of the date of the final decree in this case.

10. Notwithstanding the provisions of paragraph 9, for limited time periods relevant to this Decree, certain of the points or lines contained in the above baseline description were not part of the Louisiana coastline, and for other periods additional points or lines must be added to that coastline. These variations are described in Exhibit B, which for the sectors and times given, describes portions of the baseline. Otherwise, the Louisiana coastline is to be taken as the same as the present coastline for all relevant times and purposes.

11. The parties are directed to establish lines three geographical miles seaward of the coastlines described in Exhibits A and B to be employed in accountings and submitted in the proposed final decree hereafter, delimiting the seaward limit of the State of Louisiana’s rights under the Submerged Lands Act.

The parties are directed to prepare a final decree for entry by this Court in the near future resolving the additional issues required to be dealt with that this litigation may be terminated, to include, but not necessarily be limited to, matters related to unresolved issues, if any, concerning accountings and payments, offset claims, payments to others, ambulatory boundary complexities or administrative problems.

12. The Court retains jurisdiction to entertain such further proceedings, enter such orders and issue such writs as may from time to time be deemed necessary or advisable to give proper force and effect to its previous orders or decrees herein or to this Decree or to effectuate the rights of the parties in the premises.

13. Nothing in this Decree or in the proceedings leading to it shall prejudice any rights, claims or defenses of the State of Louisiana as to its maritime lateral boundaries with the States of Mississippi and Texas, which boundaries are not at issue in this litigation. Nor shall the United States in any way be prejudiced hereby as to such matters. Nor shall anything in this Decree prejudice or modify the rights and obligations under any contracts or agreements, not inconsistent with this Decree, between the parties or between a party and a third party, especially, but not limited to, the Interim Agreement of October 12, 1956, as amended, which Agreement remains in effect except as explicitly modified hereby.

EXHIBIT A

X Y

A LINE FROM 2752565 568525

THROUGH_____ 2775787 513796

THROUGH_____ 2777512 513071

THROUGH_____ 2779032 512013

THROUGH,_____ 2780766 510417

THROUGH_____ 2784689 505455

THROUGH_____ 2788518 498898

THROUGH_____ 2790051 496115

THROUGH_____ 2791690 491970

THROUGH_____ 2794789 481712

THROUGH_____ 2796202 475864

THROUGH_____ 2797209 468763

THROUGH_____ 2797456 463898

THROUGH_____ 2797455 458119

THROUGH_____ 2797067 452190

THROUGH_____ 2795853 442333

THROUGH.___ 2794722 436006

THROUGH_____ 2793260 430155

THROUGH-2790415 420878

THROUGH.— 2788165 414646

THROUGH_____ 2786724 410834

THROUGH_____ 2783250 403219

THROUGH_____ 2779673 397140

THROUGH.___ 2777922 394224

THROUGH-2776487 392403

THROUGH— 2775343 391771

THROUGH____ 2774819 390716

THROUGH.___ 2774670 390293

THROUGH.___ 2773972 389724

THROUGH.___ 2772541 387391

THROUGH____ 2770599 383887

THROUGH.___ 2768775 381521

THROUGH.___ 2768031 380244

X Y

THROUGH-2767052 379676

THROUGH-2766408 378524

THROUGH-2761138 371491

THROUGH-2758093 367862

THROUGH-2757465 366796

THROUGH-2755709 364596

THROUGH-2755015 363480

THROUGH-2749221 357797

THROUGH-2746309 355438

THROUGH-2744222 354125

THROUGH-2743352 353794

THROUGH-2742583 353754

THROUGH-2727653 334120

THROUGH-2726852 333103

THROUGH-2723975 330868

THROUGH-2722321 329172

THROUGH-2717012 320677

THROUGH— 2715236 318391

THROUGH-2714633 317731

THROUGH— 2718324 316801

THROUGH-2711772 316107

THROUGH— 2710380 315995

THROUGH-2689683 308890

THROUGH— 2689514 307841

THROUGH-2688390 304545

THROUGH— 2687610 301648

THROUGH-2687014 300054

THROUGH— 2685058 297573

THROUGH-2683264 296069

THROUGH— 2680880 294918

THROUGH— 2678009 294303

TO___________ 2681915 257755

A POINT AT 2688235 252215

A POINT AT. 2689305 250395

A POINT AT. 2700735 234640

A POINT AT. 2701500 232820

A POINT AT. 2707635 223640

x y

A LINE FROM — 2709100 220995

TO_____________ .— 2734900 209275

A POINT AT— — 2737065 210155

A POINT AT— __ 2738320 210230

A POINT AT— 2738938 209975

A POINT AT— __ 2750755 206535

A POINT AT— __ 2755325 204680

A POINT AT„ 2755178 203815

A POINT AT— __ 2754100 186915

A POINT AT— — 2754263 186316

A POINT AT- .— 2753885 183460

A POINT AT— .— 2752470 182170

A POINT AT__. __ 2751045 ' 181305

A POINT AT— — 2750586 181270

A POINT .AT— — 2736662 175902

A LINE FROM. — 2734720 174030

TO_____________ — 2733040 172295

A LINE FROM — 2728153 162005

TO_____________ — 2727215 156890

A POINT AT— — 2726951 150846

A POINT AT— — 2726105 148530

A POINT AT— 2724850 148150

A LINE FROM — 2725550 153430

TO__________— —. 2724419 152060

A LINE FROM 2724314 151595

THROUGH_____ —. 2702461 124148

TO_____________ — 2701735 123905

A POINT AT— .— 2699435 118600

A POINT AT— 2699815 116800

A POINT AT— 2699695 116700

A LINE FROM .— 2697850 117200

THROUGH_____ — 2697510 117648

TO_____________ — 2697300 118500

A POINT AT— 2685325 133800

A LINE FROM .— 2682605 136895

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TO_____________ — 2673482 141245

A LINE FROM 2672315 141745

X Y

THROUGH. 2644940 134910

THROUGH. 2641835 129725

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THROUGH. 2638945 126780

THROUGH. 263580Q 123995

THROUGH. 2633755 121760

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THROUGH. 2628680 113190

THROUGH. 2625550 109560

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THROUGH. 2624045 107660

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THROUGH. 2620655 104065

THROUGH. 2618380 102265

THROUGH. 2615885 99131

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THROUGH. 2610160 92050

THROUGH. 2609785 91750

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THROUGH. 2607290 93040

THROUGH. 2607400 93175

THROUGH. 2607455 93710

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THROUGH-2610650 98640

TO__________ 2614224 105206

A POINT AT_____________________________ 2614270 110615

A POINT AT_____________________________ 2614553 111404

A LINE FROM. 2615475 113900

THROUGH_____ 2615450 157770

THROUGH_____ 2615135 159890

THROUGH_____ 2614790 160765

THROUGH_____ 2614865 161005

THROUGH_____ 2613550 164745

THROUGH_____ 2613585 166700

THROUGH_____ 2613485 167600

X Y

THROUGH_____ . 2613960 170145

THROUGH_____ . 2614070 171910

TO_____________ . 261149Q 176505

A POINT AT— . 2610755 176310

A POINT AT— . 2609880 177025

A LINE FROM- . 2608270 178325

THROUGH_____ . 2607710 178665

THROUGH_____ - 2606370 180190

THROUGH_____ . 2605125 182710

TO_________,____ . 2605025 183315

A LINE FROM. _ 2604220 184790

THROUGH_____ _ 2603355 186915

THROUGH_____ _ 2602860 188615

THROUGH_____ . 2602425 189395

THROUGH_____ _ 2601940 190595

THROUGH_____ _ 2600780 192900

THROUGH_____ _ 2598335 196450

THROUGH_____ _ 2594900 199935

THROUGH_____ _ 2593875 201260

THROUGH_____ _ 2593340 201660

THROUGH_____ . 2590100 203860

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TO_____________ _ 2587400 205250

A LINE FROM. _ 2585000 206975

THROUGH_____ _ 2583790 207010

THROUGH_____ _ 2576450 210023

THROUGH_____ _ 2576174 209790

THROUGH_____ _ 2575992 21Q090

THROUGH_____ _ 2574890 210450

THROUGH_____ _ 2574712 210767

THROUGH_____ _ 2571725 211744

THROUGH_____ _ 2568736 212548

THROUGH_____ _ 2566991 212986

TO_____________ ._ 2565940 212988

X

A LINE FROM-2563010 214045

THROUGH_____ 2562149 214046

THROUGH_____ 2561385' 214258

TO___-__________ 2556172 215383

A LINE FROM-2550402 216158

THROUGH_____ 2406890 189733

THROUGH______ 2398175 182359

THROUGH_____ 2393610 178130

THROUGH______ 2385833 171938

THROUGH______ 2381527 168671

THROUGH______ 2376521 164696

TO____________ 2374875 163200

A POINT AT_____________________________ 2376485 164409

A LINE FROM-2374875 163200

THROUGH______ 2373613 162597

THROUGH______ 2369709 160120

TO______________ 2367695 158943

A LINE FROM-2366789 158537

THROUGH______ 2365337 157918

TO______________ 2364392 157349

A LINE FROM-2362830 157339

TO______________ 2356733 154323

A LINE FROM-2354070 152599

TO______________ 2353875 152659

A LINE FROM-2347871 158564

THROUGH_____ 2342108 151526

TO______________ 2339651 150598

A LINE FROM. 2337450 149987

THROUGH_____ 2335471 149301

THROUGH_____ 2327933 146251

THROUGH_____ 2322466 144396

TO______________ 2320164 143811

X Y

A LINE FROM. .. 2319608 143421

THROUGH- .. 2317663 142869

THROUGH_____ .. 2313902 141865

THROUGH_____ .. 2312204 141813

THROUGH_____ .. 2310546 141903

THROUGH- .. 23Q8552 142401

THROUGH— .. 2307414 143059

THROUGH— .. 2306697 143789

THROUGH-.. .. 2300326 139954

THROUGH____ . 2298538 139073

THROUGH..-. .. 2296041 138519

THROUGH- .. 2295144 138550

THROUGH— .. 2294383 138846

THROUGH_____ .. 2293148 139498

THROUGH- .. 2291503 139861

THROUGH_____ .. 2286402 140499

THROUGH_____ . 2281202 141484

THROUGH_____ .. 2274749 143161

THROUGH— .. 2270205 145091

THROUGH- .. 2264450 147674

THROUGH-___ .. 2260236 150105

THROUGH.___ .. 2256191 151946

THROUGH.___ .. 2254031 153153

THROUGH-___ .. 2253306 154102

THROUGH.— .. 2222957 146695

THROUGH-— .. 2221937 146Q04

THROUGH- .. 2219935 144971

THROUGH.— .. 2218146 144160

THROUGH.— .. 2215009 143380

THROUGH.___ .. 2207126 141266

THROUGH-— '2198296 138515

THROUGH-— - 219233.0- 136944

THROUGH.— .. 218659.6 135997

THROUGH-218478.8 135611

THROUGH____ .. 2183331 135055

THROUGH-___ .. 2182166 135368

THROUGH-___ 2180645 185457

THROUGH,___ 2179937 135695

THROUGH____ _. 2170035 135500

Y

THROUGH_____ .. 2169680 135315

THROUGH_____ .. 2167836 134922

TO__________— - 2164477 134753

A LINE FROM. . 2162430 135112

TO_____________ - 2157920 135521

A POINT AT— . 2155349 135847

A LINE FROM. . 2148929 136962

THROUGH_____ . 2147751 136599

THROUGH_____ . 2143589 136276

THROUGH_____ . 2139529 136276

TO_____________ . 2138231 136387

A LINE FROM. . 2134210 136726

THROUGH_____ . 2133089 136940

THROUGH_____ . 2128819 138694

THROUGH_____ . 2126697 139353

THROUGH_____ . 2122523 140238

THROUGH_____ . 2118829 141971

THROUGH_____ . 2118065 142532

THROUGH_____ . 2117317 143491

TO_____________ . 2117632 143583

A POINT AT— . 2131078 175500

A POINT AT— . 2128430 178049

A POINT AT— . 2127239 179020

A POINT AT— .. 2124878 180545

A POINT AT— .. 2111697 183677

A POINT AT— . 2106412 183216

A LINE FROM. . 2103313 183605

THROUGH_____ . 2102167 184610

THROUGH_____ . 2100222 185315

THROUGH_____ . 2099609 185125

THROUGH_____ . 2098954 185105

THROUGH_____ . 2087767 187497

THROUGH_____ . 2087027 187342

THROUGH_____ . 2086261 187177

TO_____________ . 2085370 187372

X Y

A LIME FROM 2077417 189409

THROUGH— 2076201 189799

TO_____________ 2075295 190530

A POINT AT— 207T131 195080

A LINE FROM 2062055 199555

THROUGH____ 2058700 200495

THROUGH____ 2057430 200980

THROUGH____ 2055610 201415

THROUGH-___ 2054750 201215

THROUGH____ 2053190 201320

THROUGH_____ 2051090 201230

THROUGH.___ 2049230 201255

THROUGH-— 2045960 201470

THROUGH-___ 2042475 201660

THROUGH-___ 2037075 203200

THROUGH-— 2035775 203405

THROUGH-— 2033385 204235

THROUGH-___ 2029630 205680

THROUGH.— 2026640 206660

THROUGH.___ 2023042 208270

THROUGH-— 2021155 208850

THROUGH-— 2017453 210475

THROUGH.___ 2016243 211245

THROUGH-___ 2014384 213268

THROUGH____ 2010960 216566

THROUGH-___ 2008873 218388

THROUGH-___ 2008058 219434

THROUGH-___ 2006991 221401

THROUGH-2006256 222432

THROUGH.___ 2004384 224474

THROUGH-___ 2000030 228573

THROUGH-___ 1998568 230370

THROUGH— 1996506 233983

TO_____________ 1995220 235805

A POINT AT-. 1987818 240892

A POINT AT-. 1987371 241272

X

A. LINE FROM-1993420 241930

TO______-______ 1863474 298772

A POINT AT_ 1933172 264238

A POINT AT_ 1924399 268936

A POINT AT_ 1914373 270380

A POINT AT-1896827 275747

A POINT AT_ 1882306 270590

A POINT AT_ 1872418 277460

A POINT AT-1843467 275912

A POINT AT_ 1835344 270839

A POINT AT_ 1834019 270301

A POINT AT_ 1833527 271423

A POINT AT_ 1820994 291804

A POINT AT_ 1809845 296285

A POINT AT_ 1791584 307545

A POINT AT_ 1783067 321331

A POINT AT_ 1782391 321876

A POINT AT. 1778769 324757

A LINE FROM-1763190 333540

TO — ____________ 1762420 333590

A POINT AT_____________________________ 1758630 333490

A LINE FROM-1755535 335045

THROUGH______ 1748380 334810

THROUGH______ 1743691 334373

THROUGH______ 1738236 333686

THROUGH______ 1735850 333066

THROUGH______ 1730831 330886

THROUGH______ 1726542 329268

THROUGH______ 1724713 328326

THROUGH______ 1722884 327774

THROUGH______ 1721682 327214

THROUGH-1720140 326402

THROUGH______ 1717114 324303

THROUGH______ 1711532 320881

THROUGH______ 1709968 319818

THROUGH______ 1708756 318661

X

THROUGH-1706790 317870

THROUGH.. 1703080 316885

THROUGH-1700680 316390

THROUGH-1696359 315965

THROUGH-1692568 315990

THROUGH-1689980 316170

THROUGH-1687270 316510.

THROUGH-1678545 318408

THRQUGH1675346 319196

THROUGH-1671018 320396

THROUGH-1669012 321069

THROUGH-1667091 321595

THROUGH-1665833 321916

THROUGH-1663290 322457

THROÜGH— 1659960 323169

THROUGH-1658887 323134

THROUGH-1657050 323540

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THROUGH-1629147 327939

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THROUGH-1617090 329300

THROUGH-1616760 329510

THROTTGH— 1613Í90 329780

THROUGH-1609300 330480

THROUGH-1608080 330835

THROUGH-1605965 331030

THROUGH-1605565 331280

THROUGH . -1603140 331540

THROUGH . -1600765 332140

THROUGH . .1599740 332390

THROUGH . -1595210 333090

THROUGH . .1594770 333270

THROUGH . -1594075 333290

X Y

THROUGH______________________________1593910 333645

THROUGH______________ — ________________1593010 333520

THROUGH_______-— ____________________1591685 383785

THROUGH_______________________________1589460 334525

THROUGH________________________________1586780 335220

THROUGH________________________________1581450 336800

THROUGH________________________________1576170 338670

THROUGH________________________________1571630 340335

THROUGH________________________________1570480 340905

THROUGH________________________________1567695 341990

THROUGH________________________________1566890 342490

THROUGH________________________________1566375 342810

THROUGH________________________________1564160 343480

THROUGH________________________________1562680 344195

THROUGH________________________________1558720 345375

THROUGH________________________________1555105 346865

THROUGH________________________________1553840 347150

THROUGH--------------------------------1551670 348170

THROUGH________________________________1550645 349050

THROUGH________________________________1546740 350600

THROUGH________________________________1546195 350910

THROUGH________________________________1539270 354040

THROUGH________________________________1536505 355610

THROUGH________________________________1536245 356080

THROUGH________________________________1535690 356465

THROUGH________________________________1532515 357575

THROUGH________________________________1531970 858080

THROUGH--------------------------------1531240 358190

THROUGH________________________________1524550 361675

THROUGH________________________________1513280 366930

THROUGH--------------------------------1502470 372625

THROUGH________________________________1496700 375770

THROUGH________________________________1492040 378110

THROUGH-------------------------------1489725 379370

THROUGH________________________________1479730 384090

THROUGH________________________________1471240 387390

THROUGH________________________________1467685 388820

THROUGH--------------------------------1460435 391260

THROUGH--------------------------------1454105 393050

X Y

THROUGH______ .1449935 394700

THROUGH______ 1444715 396930

THROUGH______ .1441485 398150

TO ______________ .1436899 399820

A LINE FROM— .1431526 400742

THROUGH______ .1431465 400740

TO ______________ .1429020 401485

A LINE FROM— .1429035 401760

THROUGH ______ .1425600 402610

THROUGH______ .1424630 403175

THROUGH______ .1416365 405700

THROUGH______ .1410175 407090

THROUGH______ .1402525 408365

THROUGH______ .1397220 408870

THROUGH ______ .1392000 409180

THROUGH______ .1391954 409243

THROUGH______ .1386636 409216

THROUGH______ .1383990 409136

THROUGH______ .1380235 408500

THROUGH______ .1376515 407966

TO ______________ .1372945 406862

A LINE FROM-.1363392 397870

TO ,-_____________ .1362416 397822

A LINE FROM-.1354310 403875

THROUGH______ .1351162 404620

THROUGH______ .1341917 405967

THROUGH______ .1333745 406888

THROUGH______ .1328473 407126

THROUGH______ .1323205 407138

THROUGH______ .1317944 407045

THROUGH______ .1312617 406742

THROUGH______ .1307312 406260

THROUGH______ .1296747 405049

THROUGH______ .1291413 404205

THROUGH______ .1286154 403467

THROUGH______ .1280760 402836

X Y

THROUGH .1275467 4Q2375

THROUGH .1264910 401500

THROUGH .1259600 400971

THROUGH .1254211 400226

THROUGH .1248971 399421

THROUGH____ .1248670 398400

THROUGH .1240260 397840

THROUGH .1235668 396741

THROUGH_____ 1233256 395989

THROUGH_____ 1228846 394497

THROUGH_____ 1228772 894775

THROUGH-1226444 393922

THROUGH_____ 1225768 393281

THROUGH_____ 1225421 393370

THROUGH_____ 1219698 390746

THROUGH_____ 1219065 390227

THROUGH_____ 1217536 389445

THROUGH_____ 1217089 389513

THROUGH!_____ 1216582 389216

TO_-__._ — _______ 1215615 388263

A LINE FROM. 1206795

THROUGH_____ 1209227 364245

TO_____________ 1208456 36,3990

EXHIBIT B

From January 1961 to December 1969, the baseline in the East Bay vicinity from point X=2699435, Y=118600 to point X=2644940, Y= 134910 deviates from the present baseline and may be described as follows:

A point at............................ X=2699815 Y-116800

A point at............................ X=2699695 Y=116700

A line from........................... X=2697850 Y=117200

Through ............................. X=2697510 Y=117648

To .................................. X=2697300 Y=118500

A line from........................... X=2687638 Y=130705

Through ............................. X=2685260 Y=131590

Through ............................. X=2684417 Y=131957

Through ............................. X=2683850 Y=132390

Through ............................. X=2682580 Y=133325

Through ............................. X=2681624 Y=134128

Through ............................. X=2677650 Y=138050

Through ............................. X=2644940 Y=134910

Prior to January 1961, the baseline in the East Bay vicinity from point X=2699435, Y=118600 to point X=2644940, Y=134910 deviates from the present baseline and may be described as follows:

A point at. X=2699435 Y=118600

A line from X=2697850 Y=117200

Through .. X=2697510 Y=117648

To ....... X=2697300 Y=118500

A line from X=2687638 Y=130705

Through .. X=2685250 Y-131590

Through .. X=2684417 Y=131957

Through .. X=2683850 Y=132390

Through .. X=2682580 Y=133325

Through .. X=2681624 Y=134128

Through .. X=2677650 Y=138050

Through .. X=2644940 Y=134910

Prior to December 6, 1969, the baseline in the Pass du Bois vicinity from point X=2615450, Y=157770 to point X=2613550, Y=164745 deviates from the present baseline and may be described as follows:

A point at............................ X=2615151 Y=158006

A point at............................ X=2612771 Y=162310

A point at............................ X=2612120 Y=164118

From November 19, '1959, to February 1, 1960, the baseline in the Pass Tante Phine vicinity from point X=2606370, Y= 180190 to point X=2598335, Y= 196450 deviates from the present baseline and may be described as follows:

A point at............................ X=2602000 Y=183535

From January 1, 1959, through March 31, 1959, and from March 1, 1964, through July 31, 1964, the baseline North of Pass Tante Phine from point X=2605025, Y=183315 to point X=2600780, Y=192900 deviates from the present baseline and may be described as follows:

A point at............................ X=2602763 Y=186885

Mr. Justice Douglas and Mr. Justice Marshall took no part in the consideration or decision of this motion.


author: Mr. Chief Justice Burger Mr. Justice Marshall, with whom Mr. Justice Douglas joins,

text:
    ROGERS v. UNITED STATES
    No. 73-6336.
    Argued April 14, 1975 —
    Decided June 17, 1975

      Ralph W. Parnell, Jr., by appointment of the Court, 420 U. S. 943, argued the cause and filed briefs for petitioner.

      Allan A. Tuttle argued the cause for the United States. On the brief were Solicitor General Bork, Acting Assistant Attorney General Keeney, Deputy Solicitor General Randolph, William L. Patton, and Marshall Tamor Golding.

        Osmond K. Fraenkel and Melvin L. Wulf filed a brief for the American Civil Liberties Union as amicus curiae urging reversal. tioner was arrested on a mandatory release violation warrant (18 U. S. C. § 4164) and was incarcerated pending a revocation hearing.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

Petitioner was convicted by a jury on five counts of an indictment charging him with knowingly and willfully making oral threats “to take the life of or to inflict bodily harm upon the President of the United States,” in violation of 18 U. S. C. § 871 (a). The Court of Appeals affirmed, 488 F. 2d 512 (CA5 1974), and we granted certiorari to resolve an apparent conflict among the Courts of Appeals concerning the elements of the offense proscribed by §871 (a). 419 U. S. 824 (1974). After full briefing and argument, however, we find it unnecessary to reach that question, since certain circumstances of petitioner’s trial satisfy us that the conviction must be reversed.

The record reveals that the jury retired for deliberation at 3 p. m. on the second day of petitioner’s trial. Approximately two hours later, at 4:55 p. m., the jury sent a note, signed by the foreman, to the trial judge, inquiring whether the court would “accept the Verdict — 'Guilty as charged with extreme mercy of the Court.’ ” Without notifying petitioner or his counsel, the court instructed the marshal who delivered the note “to advise the jury that the Court’s answer was in the affirmative.” Five minutes later, at 5 p. m., the jury returned, and the record contains the following account of the acceptance of its verdict:

“THE COURT: We understand from a note you sent to the Court the verdict finds him guilty on all five counts but that you wish to recommend extreme mercy; is that correct?
“THE FOREMAN: Yes, Your Honor.
“THE COURT: Will you please poll the jury. (Whereupon the jury was polled and all jurors answered in the affirmative.)
“THE COURT: Let the verdict be entered as the judgment of the Court. Certainly the Court will take into consideration your recommendation of mercy, but before we can act upon the case, we will have the Probation Officer make a pre-sentence investigation report. We do not know whether the man has a prior criminal record or not and we will certainly take into account what you have recommended.” 2 Tr. 192-193.

Generally, a recommendation of leniency made by a jury without statutory authorization does not affect the validity of the verdict and may be disregarded by the sentencing judge. See Cook v. United States, 379 F. 2d 966, 970 (CA5 1967), and cases cited. However, in Cook, the Court of Appeals held that an exception to this general rule, requiring further inquiry by the trial court, arises where the circumstances of the recommendation cast doubt upon the unqualified nature of the verdict. Assuming the validity of the exception, we need not decide whether either the factual differences between the recommendation in Cook and that in the instant case, or petitioner’s failure to request further inquiry prior to the recording of the verdict, see Fed. Rule Crim. Proc. 31 (d), would suffice to distinguish the cases for purposes of appropriate appellate relief. See 8 J. Moore, Federal Practice ¶ 31.07 (2d ed. 1975). We deal here not merely with a potential defect in the verdict.

In Fillippon v. Albion Vein Slate Co., 250 U. S. 76 (1919), the Court observed “that the orderly conduct of a trial by jury, essential to the proper protection of the right to be heard, entitles the parties who attend for the purpose to be present in person or by counsel at all proceedings from the time the jury is impaneled until it is discharged after rendering the verdict.” Id., at 81. In applying that principle, the Court held that the trial judge in a civil case had “erred in giving a supplementary instruction to the jury in the absence of the parties and without affording them an opportunity either to be present or to make timely objection to the instruction.” Ibid.

In Shields v. United States, 273 U. S. 583 (1927), the Court had occasion to consider the implications of the “orderly conduct of a trial by jury” in a criminal case. The trial judge had replied to a written communication from the jury, indicating its inability to agree as to the guilt or innocence of the defendant, by sending a written direction that it must find the defendant “guilty or not guilty.” The communications were not made in open court while the defendant and his counsel were present nor were they advised of them. The jury thereupon found Shields guilty of one count with a recommendation of mercy. This Court held that a previous request by counsel for Shields and the Government that the trial judge hold the jury in deliberation until they had agreed upon a verdict “did not justify exception to the rule of orderly conduct of jury trial entitling the defendant, especially in a criminal case, to be present from the time the jury is impaneled until its discharge after rendering the verdict.” Id., at 588-589.

As in Shields, the communication from the jury in this case was tantamount to a request for further instructions. However, we need not look solely to our prior decisions for guidance as to the appropriate procedure in such a situation. Federal Rule Crim. Proc. 43 guarantees to a defendant in a criminal trial the right to be present “at every stage of the trial including the impaneling of the jury and the return of the verdict.” Cases interpreting the Rule make it clear, if our decisions prior to the promulgation of the Rule left any doubt, that the jury’s message should have been answered in open court and that petitioner’s counsel should have been given an opportunity to be heard before the trial judge responded. See, e. g., United States v. Schor, 418 F. 2d 26, 29-30 (CA2 1969); United States v. Glick, 463 F. 2d 491, 493 (CA2 1972).

Although a violation of Rule 43 may in some circumstances be harmless error, see Fed. Rule Crim. Proc. 52 (a); United States v. Schor, supra, the nature of the information conveyed to the jury, in addition to the manner in which it was conveyed, does not permit that conclusion in this case. The trial judge should not have confined his response to the jury’s inquiry to an indication of willingness to accept a verdict with a recommendation of “extreme mercy.” At the very least, the court should have reminded the jury that the recommendation would not be binding in any way. But see United States v. Davidson, 367 F. 2d 60 (CA6 1966). In addition, the response should have included the admonition that the jury had no sentencing function and should reach its verdict without regard to what sentence might be imposed. See United States v. Louie Gim Hall, 245 F. 2d 338 (CA2 1957); United States v. Glick, supra, at 494. Cf. United States v. Patrick, 161 U. S. App. D. C. 231, 494 F. 2d 1150 (1974).

The fact that the jury, which had been deliberating for almost two hours without reaching a verdict, returned a verdict of “guilty with extreme mercy” within five minutes “after being told unconditionally and unequivocally that it could recommend leniency,” United States v. Glick, supra, at 495, strongly suggests that the trial judge’s response may have induced unanimity by giving members of the jury who had previously hesitated about reaching a guilty verdict the impression that the recommendation might be an acceptable compromise. We acknowledge that the comments of the trial judge upon receiving the verdict may be said to have put petitioner’s counsel on notice that the jury had communicated with the court, but the only indication that the court had unilaterally communicated with the jury comes from the note itself, which the court correctly ordered to be filed in the record, with a notation as to the time of receipt and the court’s response. It appears, however, that petitioner’s counsel was not aware of the court’s communication until after we granted the petition for certiorari. In such circumstances, and particularly in light of the difficult task of the factfinder in a prosecution under § 871 (a), see Watts v. United States, 394 U. S. 705 (1969), we conclude that the combined effect of the District Court’s errors was so fraught with potential prejudice as to require us to notice them notwithstanding petitioner’s failure to raise the issue in the Court of Appeals or in this Court. Silber v. United States, 370 U. S. 717 (1962); Brotherhood of Carpenters v. United States, 330 U. S. 395, 411-412 (1947). Cf. United States v. Davidson, 367 F. 2d, at 63.

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

Reversed and remanded.

Mr. Justice Marshall, with whom Mr. Justice Douglas joins,

concurring.

George Rogers, a 34-year-old unemployed carpenter with a 10-year history of alcoholism, wandered into the coffee shop of a Holiday Inn in Shreveport, La., early one morning, behaving in a loud and obstreperous manner. He accosted several customers and waitresses, telling them, among other things, that he was Jesus Christ and that he was opposed to President Nixon’s visiting China because the Chinese had a bomb that only he knew about, which might be used against the people of this country. In the course of his various outbursts, Rogers announced that he was going to go to Washington to “whip Nixon’s ass,” or to “kill him in order to save the United States.”

The local police were soon called to remove Rogers from the Holiday Inn. When the arresting officer arrived, he asked Rogers whether he had threatened the President. Rogers replied that he didn’t like the idea of the President’s going to China and making friends with the Chinese, our enemies. He told the officer, “I’m going to Washington and I’m going to beat his ass off. Better yet, I will go kill him.” Rogers added that he intended to “walk” to Washington because he didn’t like cars. Rogers was not charged with any state-law crimes, but the police reported the incident to a local Secret Service agent, who subsequently had petitioner arrested on a federal warrant.

This sad set of circumstances resulted in a five-count indictment under the “threats against the President” statute, 18 U. S. C. § 871 (a). After a jury trial, petitioner was convicted under that statute and sentenced to five years’ imprisonment, to be followed by five years of supervised probation. The Court of Appeals for the Fifth Circuit affirmed petitioner’s conviction in a brief per curiam opinion, holding that the District Court had properly instructed the jury under § 871, and that the evidence against petitioner was sufficient to sustain a conviction under that statute as properly construed.

After we granted certiorari, and after the petitioner’s brief was filed here, the Solicitor General confessed error, but on a point that had not been raised either here, in the Court of Appeals, or at trial. The Court today seizes on that point to reverse the conviction, leaving unresolved the issue that we granted certiorari to consider. Although I do not disagree with the Court’s treatment of the question on which it bases its reversal today, I would reach the merits and reverse petitioner’s conviction on the grounds pressed in the Court of Appeals and in the petition for certiorari.

I

The District Court and the Court of Appeals adopted what has been termed the “objective” construction of the statute. This interpretation of § 871 originated with the early case of Ragansky v. United States, 253 F. 643 (CA7 1918), and it has been adopted by a majority of the Courts of Appeals, even though this Court has expressed “grave doubts” as to its correctness. Watts v. United States, 394 U. S. 705, 707 (1969). As applied in Ragansky and later cases, this construction would support the conviction of anyone making a statement that would reasonably be understood as a threat, see Roy v. United States, 416 F. 2d 874, 877 (CA9 1969), as long as the defendant intended to make the statement and knew the meaning of the words used, see Ragansky v. United States, supra, at 645.

The District Court charged the jury in accordance with the “objective construction.” The jury was instructed in effect that it was not required to find that the petitioner actually intended to kill or injure the President, or even that he made a statement that he thought might be taken as a serious threat. Instead, the jury was permitted to convict on a showing merely that a reasonable man in petitioner’s place would have foreseen that the statements he made would be understood as indicating a serious intention to commit the act. In addition, the court charged that the jury could find petitioner guilty if his statements evinced “an apparent determination to carry out the threat.” 2 Tr. 177. In my view, this construction of § 871 is too broad.

In Watts, we observed that giving § 871 an expansive construction would create a substantial risk that crude, but constitutionally protected, speech might be criminalized. The petitioner there had been convicted for telling a small group at a political rally: “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” We held that the statement, even if “willfully and knowingly” made, was not a true “threat” but merely a form of political hyperbole. Applying the statute with an eye to the danger of encroaching on constitutionally protected speech, we held that the comment in Watts fell outside the reach of the statute as a matter of law. Although the petitioner in the present case was not at a political rally or engaged in formal political discussion, the same concern counsels against permitting the statute such a broad construction that there is a substantial risk of conviction for a merely crude or .careless expression of political enmity.

II

Both the legislative history and the purposes of the statute are inconsistent with the “objective” construction of § 871 and suggest that a narrower view of the statute is proper.

A

The statute was enacted in 1917 without extensive discussion. Only in the House debates is there any hint of the scope that the sponsors intended for the Act. When it was suggested that the word “willfully” be removed from the bill, Representative Volstead objected, stating that in his view, “[t]he word ‘willfully’ adds an intention to threaten, and distinguishes a case [in which the defendant does not intend to convey any threat].” Without the requirement of willfulness, he said, “a person might send innocently, without any intention to convey a threat at all, an instrument to a friend that contained a threat, and he would be guilty . . . .” 53 Cong. Rec. 9378 (1916). Arguing — successfully, as it turned out — that the word “willfully” should be left in the statute, the Congressman emphasized the importance of the subjective intention to threaten:

“[I]f this statute is to be saved at all, it seems to me it must be upon the theory that the act is willful. There is not anything in the language outside of that word to convey the idea that a threat must be an intentional threat against the President. The word ‘willful’ conveys, as ordinarily used, the idea of wrongful as well as intentional. That idea ought to be preserved so as not to make innocent acts punishable.” Id., at 9379.

Representative Webb, the only other Congressman to comment about this issue on the House floor, also understood it to require specific intent. He read it at least as restrictively as did Representative Volstead:

“If you make it a mere technical offense, you do not give him much of a chance when he comes to answer before a court and jury. I do not think we ought to be too anxious to convict a man who does a thing thoughtlessly. I think it ought to be a willful expression of an intent to carry out a threat against the Executive . . . Id., at 9378.

The sponsors thus rather plainly intended the bill to require a showing that the defendant appreciated the threatening nature of his statement and intended at least to convey the impression that the threat was a serious one. The danger of making § 871 a mere “technical offense” or making “innocent acts punishable” was clear to the sponsors of the Act; their concerns should continue to inform the application of the statute today.

B

The Government argues that only the objective construction of § 871 is consistent with the purposes the statute was intended to serve. In Watts, the Government notes, we identified the interests advanced by the statute as being both “protecting the safety of [the] Chief Executive and . . . allowing him to perform his duties without interference from threats of physical violence.” 394 U. S., at 707. I adhere to that statement of the purpose of the statute; I simply do not agree that the objective construction is the necessary or even the natural means of achieving that purpose.

Plainly, threats may be costly and dangerous to society in a variety of ways, even when their authors have no intention whatever of carrying them out. Like a threat to blow up a building, a serious threat on the President’s life is enormously disruptive and involves substantial costs to the Government. A threat made with no present intention of carrying it out may still restrict the President’s movements and require a reaction from those charged with protecting the President. Because § 871 was intended to prevent not simply attempts on the President’s life, but also the harm associated with the threat itself, I believe that the statute should be construed to proscribe all threats that the speaker intends to be interpreted as expressions of an intent to kill or injure the President. This construction requires proof that the defendant intended to make a threatening statement, and that the statement he made was in fact threatening in nature. Under the objective construction by contrast, the defendant is subject to prosecution for any statement that might reasonably be interpreted as a threat, regardless of the speaker’s intention. In essence, the objective interpretation embodies a negligence standard, charging the defendant with responsibility for the effect of his statements on his listeners. We have long been reluctant to infer that a negligence standard was intended in criminal statutes, see Morissette v. United States, 342 U. S. 246 (1952); we should be particularly wary of adopting such a standard for a statute that regulates pure speech. See Abrams v. United States, 250 U. S. 616, 626-627 (1919) (Holmes, J., dissenting).

If § 871 has any deterrent effect, that effect is likely to work only as to statements intended to convey a threat. Statements deemed threatening in nature only upon “objective” consideration will be deterred only if persons criticizing the President are careful to give a wide berth to any comment that might be construed as threatening in nature. And that degree of deterrence would have substantial costs in discouraging the “uninhibited, robust, and wide-open” debate that the First Amendment is intended to protect. New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964).

I would therefore interpret § 871 to require proof that the speaker intended his statement to be taken as a threat, even if he had no intention of actually carrying it out. The proof of intention would, of course, almost certainly turn on the circumstances under which the statement was made: if a call were made to the White House threatening an attempt on the President’s life within an hour, for example, the caller might well be subject to punishment under the statute, even though he was calling from Los Angeles at the time and had neither the purpose nor the means to carry out the threat. But to permit the jury to convict on no more than a showing that a reasonably prudent man would expect his hearers to take his threat seriously is to impose an unduly stringent standard in this sensitive area.

Under the narrower construction of § 871, the jury in this case might well have acquitted, concluding that it was unlikely that Rogers actually intended or expected that his listeners would take his threat as a serious one. Because I think that the District Court’s misconstruction of the statute prejudiced petitioner in this case and may continue to do mischief in future prosecutions brought under § 871, I would reverse on this ground rather than on the Solicitor General’s confession of error.

       Petitioner was originally sentenced to five years’ imprisonment on each count, subject to the early parole eligibility provisions of 18 U. S. C. § 4208 (a) (2), to be followed by five years’- supervised probation on the condition that he join Alcoholics Anonymous. The sentence on the last four counts was to run concurrently and to be suspended during good behavior. Cf. United States v. Davidson, 367 F. 2d 60, 63 (CA6 1966). It appears from the record that the District Judge sought to use the confinement to afford petitioner an opportunity to be cured of his alcoholism.
      At the suggestion of the Court of Appeals, petitioner moved for, and the Government did not oppose, “a reduction of the stringent sentences imposed in the District Court” under Fed. Rule Crim. Proc. 35. The motion was granted, and petitioner’s sentence was reduced to three years’ imprisonment on each count. Petitioner was released from confinement on December 24, 1974. He remains subject to five years’ supervised probation. After argument we were advised by the Solicitor General that on April 7, 1975, peti-

       As in Davidson, 367 F. 2d, at 63, the trial court’s response was inconsistent with the instruction in the general charge that “punishment ... is a matter exclusively within the province of the Court and is not to be considered by the jury in arriving at an impartial verdict. . . .” 2 Tr. 190.

       See United States v. Lincoln, 462 F. 2d 1368 (CA6), cert. denied, 409 U. S. 952 (1972); United States v. Hart, 457 F. 2d 1087 (CA10), cert. denied, 409 U. S. 861 (1972); United States v. Compton, 428 F. 2d 18 (CA2 1970), cert. denied, 401 U. S. 1014 (1971); Roy v. United States, 416 F. 2d 874 (CA9 1969); Watts v. United States, 131 U. S. App. D. C. 125, 402 F. 2d 676 (1968), rev’d on other grounds, 394 U. S. 705 (1969). Contra: United States v. Patillo, 438 F. 2d 13 (CA4 1971) (en banc).

       The District Court drew its definitions of “knowingly,” and "willfully” from Ragansky v. United States, 253 F. 643 (CA7 1918), and supplemented that definition with language taken directly from Roy v. United States, supra.

       Representative Webb may have intended an even narrower construction of the statute, as he began his remarks by commenting, “I think it must be a willful intent to do serious injury to the President.” 53 Cong. Rec., at 9378. His subsequent comments made it somewhat unclear whether he meant that the threat must be accompanied by a present intention to injure the President, or simply that the threat must be intended to convey an apparent intention to do so. In any event, he clearly agreed with Representative Volstead that the statute was not to reach statements not intended to be threatening in character.