author: Per Curiam.

text:
    TOWN OF HUNTINGTON et al. v. HUNTINGTON BRANCH, NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.
    No. 87-1961.
    Decided November 7, 1988
   Per Curiam.

The motion of New York Planning Federation for leave to file a brief as amicus curiae is granted.

The town of Huntington, N. Y., has about 200,000 residents, 95% of whom are white and less than 4% black. Almost three-fourths of the black population is clustered in six census tracts in the town’s Huntington Station and South Greenlawn areas. Of the town’s remaining 42 census tracts, 30 are at least 99% white.

As part of Huntington’s urban renewal effort in the 1960’s, the town created a zoning classification (R-3M Garden Apartment District) permitting construction of multifamily housing projects, but by § 198-20 of the Town Code, App. to Juris. Statement 94a, restricted private construction of such housing to the town’s “urban renewal area” — the section of the town in and around Huntington Station, where 52% of the residents are minorities. Although §198-20 permits the Huntington Housing Authority (HHA) to build multifamily, housing townwide, the only existing HHA project is within the urban renewal area.

Housing Help, Inc. (HHI), a private developer interested in fostering residential integration, acquired an option to purchase a site in Greenlawn/East Northport, a 98% white section of town zoned for single-family residences. On February 26, 1980, HHI requested the town board to commit to amend § 198-20 of the Town Code to permit multifamily rental construction by a private developer. On January 6, 1981, the board formally rejected this request. On February 23, 1981, HHI, the Huntington Branch of the National Association for the Advancement of Colored People (NAACP), and two black, low-income residents of Huntington (appellees) filed a complaint against the town and members of the town board (appellants) in the Federal District Court for the Eastern District of New York, alleging, inter alia, that they had violated Title VIII of the Civil Rights Act of 1968 by (1) refusing to amend the zoning code to allow for private construction of multifamily housing outside the urban renewal zone and (2) refusing to rezone the proposed site to R-3M. Appellees asserted that both of these claims should be adjudicated under a disparate-impact standard. Appellants agreed that the facial challenge to the ordinance should be evaluated on that basis, but maintained that the decision not to rezone the proposed project site should be analyzed under a discriminatory-intent standard.

Following a bench trial, the District Court rejected appellees’ Title VIII claims. 668 F. Supp. 762 (EDNY 1987). The Court of Appeals for the Second Circuit reversed as to both claims. 844 F. 2d 926 (1988). The Court of Appeals held that, in order to establish a prima facie case, a Title VIII plaintiff need only demonstrate that the action or rule challenged has a discriminatory impact. As to the failure to amend the zoning ordinance (which is all that concerns us here), the court found discriminatory impact because a disproportionately high percentage of households that use and that would be eligible for subsidized rental units are minorities, and because the ordinance restricts private construction of low-income housing to the largely minority urban renewal area, which “significantly perpetuated segregation in the Town.” Id., at 938. The court declared that in order to rebut this prima facie case, appellants had to put forth “bona fide and legitimate” reasons for their action and had to demonstrate that no “less discriminatory alternative chn serve those ends.” Id., at 939. The court found appellants’ rationale for refusal to amend the ordinance — that the restriction of multifamily projects to the urban renewal area would encourage developers to invest in a deteriorated and needy section of town — clearly inadequate. In the court’s view, that restriction was more likely to cause developers to invest in towns other than Huntington than to invest in Huntington’s depressed urban renewal area, and tax incentives would have been a more efficacious and less discriminatory means to the desired end.

After concluding that appellants had violated Title VIII, the Court of Appeals directed Huntington to strike from § 198-20 the restriction of private multifamily housing projects to the urban renewal area and ordered the town to rezone the project site to R-3M.

Huntington seeks review pursuant to 28 U. S. C. § 1254(2) on the basis that, in striking the zoning limitation from the Town Code, the Court of Appeals invalidated “a State statute . . . as repugnant to” Title VIII, a “la[w] of the United States.” Viewing the case as involving two separate claims, as presented by the parties and analyzed by the courts below, we note jurisdiction, but limit our review to that portion of the case implicating our mandatory jurisdiction. Thus, we expressly decline to review the judgment of the Court of Appeals insofar as it relates to the refusal to rezone the project site.

Since appellants conceded the applicability of the disparate-impact test for evaluating the zoning ordinance under Title VIII, we do not reach the question whether that test is the appropriate one. Without endorsing the precise analysis of the Court of Appeals, we are satisfied on this record that disparate impact was shown, and that the sole justification proffered to rebut the prima facie case was inadequate. The other points presented to challenge the court’s holding with regard to the ordinance do not present substantial federal questions. Accordingly, the judgment of the Court of Appeals is

Affirmed.

Justice White, Justice Marshall, and Justice Stevens would note probable jurisdiction and set the case for oral argument.


source: Caselaw Access Project

author: Justice Marshall

license: Public Domain

text:
    SHELL OIL CO. v. IOWA DEPARTMENT OF REVENUE
    No. 87-984.
    Argued October 4, 1988
    Decided November 8, 1988

      Kenneth S. Geller argued the cause for appellant. With him on the briefs were Mark I. Levy, Steven C. Stryker, William D. Peltz, and James W. Hall.

      Harry M. Griger, Special Assistant Attorney General of Iowa, argued the cause for appellee. With him on the brief was Thomas J. Miller, Attorney General.

      Deputy Solicitor General Wallace argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Richard J. Lazarus, and Richard Farber.

      Briefs of amici curiae urging affirmance were filed for the State of New Jersey et al. by Cary Edwards, Attorney General of New Jersey, James J. Ciancia, Assistant Attorney General, and Ma'ry R. Hamill and John P. Miscione, Deputy Attorneys General, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, John Steven Clark of Arkansas, Duane Woodard of Colorado, James T. Jones of Idaho, J. Joseph Curran, Jr., of Maryland, Hubert H. Humphrey III of Minnesota, William L. Webster of Missouri, Mike Greely of Montana, Robert Abrams of New York, Nicholas J. Spaeth of North Dakota, Dave Frohnmayer of Oregon, and T. Travis Medlock of South Carolina; for the Florida Department of Revenue by Robert A. Butterworth, Attorney General of Florida, Joseph C. Mellichamp III, Assistant Attorney General, and Sharon A. Zahner; and for the Multistate Tax Commission by Eugene F. Corrigan.

        John K. Van de Kamp, Attorney General of California, Robert F. Tyler, Supervising Deputy Attorney General, and Robert D. Milam, Deputy Attorney General, filed a brief for the State of California as amicus curiae.

   Justice Marshall

delivered the opinion of the Court.

In this appeal, we must decide whether the Outer Continental Shelf Lands Act (OCSLA), 67 Stat. 462, 43 U. S. C. § 1331 et seq. (1982 ed. and Supp. Ill), prevents Iowa from including income earned from the sale of oil and gas extracted from the Outer Continental Shelf (OCS) in the apportionment formula it uses to calculate in-state taxable income. We hold that it does not.

I

Shell Oil Company (Shell) is a unitary business, incorporated in Delaware. Its activities include producing, transporting, and marketing oil and gas and the products that are made from them. Shell extracts oil and gas not only within various States but also on the OCS, which is defined by the OCSLA as all those submerged lands three or more geographical miles from the United States coastline. Between 1977 and 1980, the tax years at issue in this case, a portion of Shell’s gross revenues was derived from the sale of oil and gas extracted from the OCS and the sale of products made from OCS oil and gas.

During the years at issue, Shell sold all of its OCS natural gas directly at the wellhead platform located above the OCS. Nearly all of its OCS crude oil, by contrast, was transferred via pipelines to the continental United States, where Shell either sold it to third parties or refined it. The refining process typically involves the commingling of OCS crude oil with crude oil purchased or drawn by Shell from other places. Thus, the original source of oil in any Shell-refined product is indeterminable.

Shell’s principal business in the State of Iowa during the years at issue was the sale of oil and chemical products which it had manufactured and refined outside of Iowa. These products included OCS crude oil that had been commingled with non-OCS crude oil.

Iowa imposes an income tax on corporations doing business in Iowa. Iowa Code §422.33(2) (1987). For a unitary business like Shell, that income tax is determined by a single-factor apportionment formula based on sales. Under that formula, Iowa taxes the share of a corporation’s overall net income that is “reasonably attributable to the trade or business within the state.” Ibid. We have previously upheld Iowa’s sales-based apportionment formula against Due Process and Commerce Clause challenges in Moorman Manufacturing Co. v. Bair, 437 U. S. 267 (1978).

Between 1977 and 1980, Shell filed Iowa tax returns in which it adjusted the Iowa formula to exclude a figure which it stated reflected “income earned” from the OCS. The Iowa Department of Revenue audited Shell’s returns and rejected this modification. Accordingly, the Iowa Department of Revenue found Shell’s tax payment deficient. Shell challenged that determination, claiming at a hearing before the Iowa Department of Revenue that inclusion of OCS-derived income in the tax base of Iowa’s apportionment formula violated the OCSLA. The hearing officer rejected that contention. Shell appealed to the Polk County District Court, which affirmed the administrative decision, No. AA952 (Oct. 3, 1986), App. to Juris. Statement 15a (Polk County opinion), and to the Iowa Supreme Court, which also affirmed. Kelly-Springfield Tire Co. v. Iowa State Board of Tax Review, 414 N. W. 2d 113 (1987). Both courts concluded, based upon an examination of the text and history of the OCSLA, that the OCSLA did not pre-empt Iowa’s apportionment formula. We noted probable jurisdiction, 484 U. S. 1058 (1988), and now affirm.

II

We have previously held that Iowa’s apportionment formula is permissible under the Commerce Clause. Moorman Manufacturing Co. v. Bair, supra. Shell’s argument here is purely one of federal statutory pre-emption. It contends that, in passing the OCSLA, Congress intended to impose stricter requirements on a taxing State’s apportionment formula than those imposed by the operation of the Commerce Clause alone. Shell points to the text and history of the OCSLA which it believes evince a clear congressional intent to preclude States from including in their apportionment , formulas income arising from the sale of OCS oil and gas. In assessing this claim, we review first the text and then the history of the OCSLA.

Shell’s argument is that the plain language of the OCSLA enacts an “absolute and categorical” prohibition on state taxation of income arising from sales of OCS gas and oil. Brief for Appellant 13. Shell relies specifically on subsections 1333(a)(2)(A) and (a)(3) which provide, in pertinent part, as follows:

“(2)(A) To the extent that they are applicable and not inconsistent with this subchapter or with other Federal laws and regulations . . . , the civil and criminal laws of each adjacent State . . . are declared to be the law of the United States for that portion of the subsoil and seabed of the outer Continental Shelf, and artificial islands and fixed structures erected thereon, which would be within the area of the State if its boundaries were extended seaward to the outer margin of the outer Continental Shelf .... All of such applicable laws shall be administered and enforced by the appropriate officers and courts of the United States. State taxation laios shall not apply to the outer Continental Shelf.
“(3) The provisions of this section for adoption of State law as the law of the United States shall never be interpreted as a basis for claiming any interest in or jurisdiction on behalf of any State for any purpose over the seabed and subsoil of the outer Continental Shelf, or the property and natural resources thereof or the revenues therefrom.” 43 U. S. C. §§ 1333(a)(2)(A) and (a)(3) (emphasis added).

It is, of course, well settled that “when a federal statute unambiguously forbids the States to impose a particular kind of tax . . . , courts need not look beyond the plain language of the federal statute to determine whether a state statute that imposes such a tax is pre-empted.” Aloha Airlines, Inc. v. Director of Taxation of Hawaii, 464 U. S. 7, 12 (1983). But the meaning of words depends on their context. Shell reads the italicized language above without reference to the statutory context when it argues that these statutory words ban States from including income from OCS oil and gas in an apportionment formula.

We believe that § 1333(a)(2)(A), read in its entirety, supports a narrower interpretation. Subsection 1333(a)(2)(A) begins by clarifying which laws will apply to offshore activity on the OCS. It declares that the civil and criminal laws of the States adjacent to OCS sites will apply. Subsection 1333(a)(2)(A) goes on to create an exception to this general incorporation. It is highly significant to us that § 1333(a)(2)(A) refers specifically to “adjacent State[s],” 43 U. S. C. § 1333(a)(2)(A) (emphasis added). The subsequent reference in the subsection to “state taxation laws” can only be read in light of this antecedent reference to “adjacent State[s].” It is clearly included lest this federal incorporation be deemed to incorporate as well the tax codes of adjacent States.

The ensuing subsection, 1333(a)(3), was similarly drafted to prevent tax claims by adjacent States. It states that the incorporation of state law “as the law of the United States” is never to be interpreted by the States whose law has been incorporated to give them jurisdiction over the property or revenues of the OCS. Reading the statutory provisions in the context of the entire section in which they appear, we therefore believe that in enacting subsections 1333(a)(2)(A) and 1333(a)(3), Congress had the more limited purpose of prohibiting adjacent States from claiming that it followed from the incorporation of their civil and criminal law that their tax codes were also directly applicable to the OCS.

The background and legislative history of the OCSLA confirm this textual reading and refute Shell’s view of broader pre-emption. The OCSLA grew out of a dispute, which first developed in the 1930’s, between the adjacent States and the Federal Government over territorial jurisdiction and ownership of the OCS and, particularly, the right to lease the submerged lands for oil and gas exploration. S. Rep. No. 133, 83d Cong., 1st Sess., 21 (1953). The adjacent States claimed jurisdiction over the submerged lands and their rich oil, gas, and mineral deposits, id., at 6, and some had even extended their territorial boundaries as far as the outer edge of the OCS. Id., at 11. After this Court, in a series of opinions, ruled that the Federal Government, and not the adjacent States, had exclusive jurisdiction over the OCS, United States v. Louisiana, 339 U. S. 699, 705 (1950); United States v. Texas, 339 U. S. 707, 717-718 (1950); United States v. California, 332 U. S. 19, 38-39 (1947), Congress, in 1953, passed the OCSLA.

In passing the OCSLA, Congress intended to provide “for the orderly development of offshore resources.” United States v. Maine, 420 U. S. 515, 527 (1975). Congress was concerned with defining territorial jurisdiction between the adjacent States and the Federal Government as to the submerged lands, particularly with reference to leasing oil and gas rights. The OCSLA states that “the subsoil and seabed of the outer Continental Shelf appertain to the United States and are subject to its jurisdiction, control, and power of disposition . . . .” 43 U. S. C. § 1332. Thus, “[b]y passing the OCS Act, Congress ‘emphatically implemented its view that the United States has paramount rights to the seabed beyond the three-mile limit . . . Maryland v. Louisiana, 451 U. S. 725, 752-753, n. 26 (1981) (quoting United States v. Maine, supra, at 526).

Once the Court ruled that the OCS was subject to the exclusive jurisdiction and control of the Federal Government, Congress was faced with the problem of which civil and criminal laws should govern activity on the OCS sites. The Constitution and the laws of the United States were extended to cover the OCS. 43 U. S. C. § 1333(a)(2)(A). Congress recognized, however, that because of its interstitial nature, federal law would not provide a sufficiently detailed legal framework to govern life on “the miraculous structures which will rise from the sea bed of the [OCS].” Christopher, The Outer Continental Shelf Lands Act: Key to a New Frontier, 6 Stan. L. Rev. 23, 37 (1953). The problem before Congress was to incorporate the civil and criminal laws of the adjacent States, and yet, at the same time, reflect the strong congressional decision against allowing the adjacent States a direct share in the revenues of the OCS, by making it clear that state taxation codes were not to be incorporated. Id., at 37, 41.

In debates over the OCSLA, representatives of the adjacent States had argued that, despite exclusive federal jurisdiction over the OCS, their States should retain an interest in direct revenues from the OCS, and that they should be allowed the power to tax OCS production and activity extra-territorially. In particular, Senator Long of Louisiana argued that the adjacent States should have a share of OCS revenues since they would be providing services to OCS workers. S. Rep. No. 411, 83d Cong., 1st Sess., 67 (1953) (minority report of Sen. Long); see also 99 Cong. Rec. 7261 (1953) (remarks of Sen. Long).

Opponents of such adjacent-state extraterritorial taxation argued that extending the adjacent States’ power to tax beyond their borders would be “unconstitutional,” 99 Cong. Rec. 2506 (1953) (remarks of Rep. Celler); id., at 2524 (remarks of Rep. Machrowicz); id., at 2571-2572 (remarks of Rep. Keating), and that it would confer a windfall benefit upon the few adjacent States at the expense of the inland States. Id., at 2523 (remarks of Rep. Rodino); id., at 2524 (remarks of Rep. Machrowicz).

In the House, the Representatives of the adjacent States pressed for the inclusion of language in the OCSLA authorizing them to collect severance and production taxes. The House version of the bill, as reported out of Subcommittee No. 1 of the House Judiciary Committee, contained the present language prohibiting direct taxation by adjacent States. See 99 Cong. Rec. 2571 (1953) (remarks of Rep. Keating). The House Judiciary Committee amended the subsection to allow adjacent States to collect severance and production taxes. Ibid. See also, H. R. 4198, 83d Cong., 1st Sess. §8(a) (1953). On the House floor, however, that provision was deleted and replaced by the prohibition on state taxation which appears in 43 U. S. C. § 1333(a)(2)(A). 99 Cong. Rec. 2569, 2571-2573 (1953).

There is no reliable support in the legislative history of the OCSLA for Shell’s view that state income taxes are pre-empted. During a long speech criticizing the OCSLA because it prevented the adjacent States from imposing severance and production taxes, Senator Long mentioned, in passing, that employers on the OCS would not be subject to the state corporate profits tax. See S. Rep. No. 411, supra, at 67; see also 99 Cong. Rec. 7261 (1953). Shell, however, is unable to point to any other reference in the legislative history to corporate income taxes beyond this one remark by a vocal opponent of the OCSLA. This Court does not usually accord much weight to the statements of a bill’s opponents. “ ‘[T]he fears and doubts of the opposition are no authoritative guide to the construction of legislation.’ ” Gulf Offshore Co. v. Mobil Oil Corp., 453 U. S. 473, 483 (1981) (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 394 (1951)). Moreover, Senator Long’s remarks were apparently premised on the assumption that the private lessees on the OCS would not also engage in business activities within the taxing State’s borders. See 99 Cong. Rec. 7261 (1953); S. Rep. No. 411, supra, at 67. Finally, it is entirely possible that Senator Long was referring to a corporate income tax which, unlike Iowa’s, was not measured by an apportionment formula. See Texas Co. v. Cooper, 236 La. 380, 107 So. 2d 676 (1958) (Louisiana tax collector has statutory power to determine an oil company’s income by separate accounting rather than statutory apportionment method). We therefore find that Shell’s reliance on an isolated statement by Senator Long is misplaced.

In sum, the language, background, and history of the OCSLA leave no doubt that Congress was exclusively concerned with preventing the adjacent States from asserting, on the basis of territorial claims, jurisdiction to assess direct taxes on the OCS. We believe that Congress primarily intended to prohibit those direct taxes commonly imposed by States adjacent to offshore production sites: for example, severance and production taxes. See Maryland v. Louisiana, 451 U. S., at 753, n. 26 (“It is clear that a State has no valid interest in imposing a severance tax on federal OCS land”). This prohibition is a far cry from prohibiting a State from including income from OCS-derived oil and gas in a constitutionally permissible apportionment scheme.

Shell’s argument hinges on the mistaken premise that including OCS-derived income in the preapportionment tax base is tantamount to the direct taxation of OCS production. But income that is included in the preapportionment tax base is not, by virtue of that inclusion, taxed by the State. Only the fraction of total income that the apportionment formula determines (by multiplying the income tax base by the apportionment fraction) to be attributable to Iowa’s taxing jurisdiction is taxed by Iowa. As our Commerce Clause analysis of apportionment formulas has made clear, the inclusion of income in the preapportioned tax base of a state apportionment formula does not amount to extraterritorial taxation. This Court has repeatedly emphasized that the function of an apportionment formula is to determine the portion of a unitary business’ income that can be fairly attributed to in-state activities. Exxon Corp. v. Wisconsin Dept. of Revenue, 447 U. S. 207, 219 (1980); Mobil Oil Corp. v. Commissioner of Taxes of Vermont, 445 U. S. 425, 440 (1980). Thus, Shell’s claim that Iowa is taxing income attributable to the OCS cannot be squared with its concession that Iowa’s apportionment formula is consistent with the Commerce Clause.

A contrary result — forbidding the inclusion of income from OCS-derived oil and gas in Iowa’s apportionment formula— would give oil companies doing business on the OCS a significant exemption from corporate income taxes in all States which measure corporate income with an apportionment formula. Congress has the power to confer such an exemption, of course, but we find no evidence that it intended to do so in the OCSLA.

Finally, we reject a secondary argument made by Shell. It argues that even if the OCSLA allows a State to include in its preapportioned tax base the sales of OCS crude oil which occur off the OCS, the taxing State may not include in that base income from the natural gas sales made at the OCS wellhead. On its face, the OCSLA makes no such distinction and, in general, it is irrelevant for the makeup of the apportionment formula’s unitary tax base that third-party sales occur outside of the State. See Exxon Corp., supra, at 228-229. Actual sales on the OCS (as opposed to internal accounting sales) are not taxed directly by any State because they are not included in the numerator of the sales ratio. See n. 3, supra. From the inclusion of such sales in the apportionment formula’s tax base, it does not follow that the dollar amount derived from the formula (which is a fraction of the unitary tax base) includes income not fairly attributable to Iowa.

Ill

For the reasons set out above, we reject Shell’s argument that Congress intended, when it passed the OCSLA, to prohibit the inclusion, in a constitutionally permissible apportionment formula, of income from OCS oil and gas. We hold that the OCSLA prevents any State, adjacent or inland, from asserting extraterritorial taxing jurisdiction over OCS lands but that the inclusion of income derived from the OCS in the unitary tax base of a constitutionally permissible apportionment formula does not amount to extraterritorial taxation by the taxing State. Accordingly, the judgment of the Iowa Supreme Court is hereby affirmed.

It is so ordered.

       The Iowa Code defines a unitary business as one which is “carried on partly within and partly without a state where the portion of the business carried on within the state depends on or contributes to the business outside the state.” Iowa Code §422.32(5) (1987).

       The OCS includes “all submerged lands lying seaward and outside of the area of lands beneath navigable waters as defined in section 1301 of this title.” 43 U. S. C. §1331. “[L]ands beneath navigable waters” include all submerged lands within three geographical miles of the coastline of the United States. § 1301.

       Iowa Code §422.33(2) (1987) provides, in pertinent part, as follows: “(2) If the trade or business of the corporation is carried on entirely within the state, the tax shall be imposed on the entire net income, but if the trade or business is carried on partly within and partly without the state, the tax shall be imposed only on the portion of the net income reasonably attributable to the trade or business within the state, said net income attributable to the state to be determined as follows:
      “(b)(4) Where income is derived from the manufacture or sale of tangible personal property, the part thereof attributable to business within the state shall be in that proportion which the gross sales made within the state bear to the total gross sales.”
      Iowa defines income by reference to federal taxable income which it then adjusts under Iowa law. Iowa Code §§422.32(6) and (11) (1987).
      Described as a formula, the method for calculating the portion of Shell’s total income which is subject to Iowa income tax is as follows:

       Shell adjusted the Iowa formula, set out above, see n. 3, as follows:

      The OCS “sales” which Shell sought to deduct from the denominator of the sales ratio included both actual sales at the wellhead, which occur only in the ease of gas, and, “sales” of oil, which, measured by an internal Shell accounting technique, record transfers between Shell divisions. Shell also sought to deduct the income from such sales from the income multiplier.

       Shell’s appeal before the Iowa Supreme Court was consolidated with a tax appeal by Kelly-Springfield Tire.

       As Judge Learned Hand so eloquently noted: “Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used . . . .” NLRB v. Federbush. Co., 121 F. 2d 954, 957 (CA2 1941).

       There is, in any event, evidence that the Senate thought that § 1333(a)(2)(A) was intended to duplicate § 1333(a)(3)’s prohibition on adjacent state claims of interest in or jurisdiction over the OCS. The floor manager of the Senate bill, Senator Cordon, explained that the language of § 1333(a)(2)(A) stating that “[sjtate taxation laws shall not apply to the outer Continental Shelf” was requested by the House conferees “in a superabundance of caution.” 99 Cong. Rec. 10471-10472 (1953). According to Senator Cordon, the language “adds nothing to and took nothing from the bill as it passed the Senate.” Ibid.

       Christopher noted that the “whole circle of legal problems" typically resolved under state law could arise on the OCS, because the large crews working on the great offshore structures would “die, leave wills, and pay taxes. They will fight, gamble, borrow money, and perhaps even kill. They will bargain over their working conditions and sometimes they will be injured on the job." 6 Stan. L. Rev., at 37.

       Shell’s reliance on the fact that the OCS is an exclusive federal enclave is misplaced. Iowa is not attempting to tax property within the OCS. White Mountain Apache Tribe v. Bracken, 448 U. S. 136 (1980). Nor does any policy of the OCSLA prevent States from including OCS-derived income in a constitutionally permissible apportionment formula. Ramah Navajo School Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U. S. 832 (1982).

       Although aimed specifically at the adjacent States, the prohibition against direct taxes obviously also applies to inland States, like Iowa. Before this Court’s rulings and passage of the OCSLA, the adjacent States could conceivably have claimed the right to impose a severance or production tax based on oil and gas removed from the OCS, on the grounds that their territorial boundaries extended, or should be deemed to extend, far out into the ocean. Iowa, or any landlocked State, wmuld have appeared foolish in making such a claim. After the passage of the OCSLA, both the adjacent and the landlocked States are precluded from imposing such taxes on OCS activities. See Polk County opinion, at 4. Likewise, both adjacent and landlocked States may include income from OCS-derived oil and gas in an otherwise constitutionally permissible apportionment formula.


author: Chief Justice Rehnquist Justice Marshall,

text:
    LOCKHART, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION v. NELSON
    No. 87-1277.
    Argued October 3, 1988
    Decided November 14, 1988

      J. Steven Clark, Attorney General of Arkansas, argued the cause for petitioner. With him on the briefs was Clint Miller, Assistant Attorney General.

      John Wesley Hall, Jr., by appointment of the Court, 485 U. S. 956, argued the cause and filed a brief for respondent.
   Chief Justice Rehnquist

delivered the opinion of the Court.

In this case a reviewing court set aside a defendant’s conviction of enhanced sentence because certain evidence was erroneously admitted against him, and further held that the Double Jeopardy Clause forbade the State to retry him as a habitual offender because the remaining evidence adduced at trial was legally insufficient to support a conviction. Nothing in the record suggests any misconduct in the prosecutor’s submission of the evidence. We conclude that in cases such as this, where the evidence offered by the State and admitted by the trial court — whether erroneously or not — would have been sufficient to sustain a guilty verdict, the Double Jeopardy Clause does not preclude retrial.

Respondent Johnny Lee Nelson pleaded guilty in Arkansas state court to burglary, a class B felony, and misdemeanor theft. He was sentenced under the State’s habitual criminal statute, which provides that a defendant who is convicted of a class B felony and “who has previously been convicted of. . . [or] found guilty of four [4] or more felonies,” may be sentenced to an enhanced term of imprisonment of between 20 and 40 years. Ark. Stat. Ann. § 41 — 1001(2)(b) (1977) (current version at Ark. Code Ann. § 5-4-501 (1987)). To have a convicted defendant’s sentence enhanced under the statute, the State must prove beyond a reasonable doubt, at a separate sentencing hearing, that the defendant has the requisite number of prior felony convictions. § 41-1005 (current version at Ark. Code Ann. § 5-4-502 (1987)); § 41-1003 (current version at Ark. Code Ann. §5-4-504 (1987)). Section 41-1003 of the statute sets out the means by which the prosecution may prove the prior felony convictions, providing that “[a] previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty,” and that three types of documents, including “a duly certified copy of the record of a previous conviction or finding of guilt by a court of record,” are “sufficient to support a finding of a prior conviction or finding of guilt.” §41-1003 (current version at Ark. Code Ann. §5-4-504 (1987)). The defendant is entitled to challenge the State’s evidence of his prior convictions and to rebut it with evidence of his own. § 41-1005(2) (current version at Ark. Code Ann. §5-4-502(2) (1987)).

At respondent’s sentencing hearing, the State introduced, without objection from the defense, certified copies of four prior felony convictions. Unbeknownst to the prosecutor, one of those convictions had been pardoned by the Governor several years after its entry. Defense counsel made no objection to the admission of the pardoned conviction, because he too was unaware of the Governor’s action. On cross-examination, respondent indicated his belief that the conviction in question had been pardoned. The prosecutor suggested that respondent was confusing a pardon with a commutation to time served. Under questioning from the court, respondent agreed that the conviction had been commuted rather than pardoned, and the matter was not pursued any further. The case was submitted to the jury, which found that the State had met its burden of proving four prior convictions and imposed an enhanced sentence. The state courts upheld the enhanced sentence on both direct and collateral review, despite respondent’s protestations that one of the convictions relied upon by the State had been pardoned.

Several years later, respondent sought a writ of habeas corpus in the United States District Court, contending once again that the enhanced sentence was invalid because one of the prior convictions used to support it had been pardoned. When an investigation undertaken by the State at the District Court’s request revealed that the conviction in question had in fact been pardoned, the District Court declared the enhanced sentence to be invalid. The State announced its intention to resentence respondent as a habitual offender, using another prior conviction not offered or admitted at the initial sentencing hearing, and respondent interposed a claim of double jeopardy. After hearing arguments from counsel, the District Court decided that the Double Jeopardy Clause prevented the State from attempting to resentence respondent as a habitual offender on the burglary charge. 641 F. Supp. 174 (ED Ark. 1986). The Court of Appeals for the Eighth Circuit affirmed. 828 F. 2d 446 (1987). The Court of Appeals reasoned that the pardoned conviction was not admissible under state law, and that “[without [it], the state has failed to provide sufficient evidence” to sustain the enhanced sentence. Id., at 449-450. We granted certiorari to review this interpretation of the Double Jeopardy Clause. 485 U. S. 904 (1988).

The Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, see Benton v. Maryland, 395 U. S. 784 (1969), provides that no person shall “be subject for the same offence to be twice put in jeopardy.” It has long been settled, however, that the Double Jeopardy Clause’s general prohibition against successive prosecutions does not prevent the government from retrying a defendant who succeeds in getting his first conviction set aside, through direct appeal or collateral attack, because of some error in the proceedings leading to conviction. United States v. Ball, 163 U. S. 662 (1896) (retrial permissible following reversal of conviction on direct appeal); United States v. Tateo, 377 U. S. 463 (1964) (retrial permissible when conviction declared invalid on collateral attack). This rule, which is a “well-established part of our constitutional jurisprudence,” id., at 465, is necessary in order to ensure the “sound administration of justice”:

“Corresponding to the right of an accused to be given a fair trial is the societal interest in punishing one whose guilt is clear after he has obtained such a trial. It would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” Id., at 466.

Permitting retrial after a conviction has been set aside also serves the interests of defendants, for “it is at least doubtful that appellate courts would be as zealous as they now are in protecting against the effects of improprieties at the trial or pretrial stage if they knew that reversal of a conviction would put the accused irrevocably beyond the reach of further prosecution.” Ibid.

In Burks v. United States, 437 U. S. 1 (1978), we recognized an exception to the general rule that the Double Jeopardy Clause does not bar the retrial of a defendant who has succeeded in getting his conviction set aside for error in the proceedings below. Burks held that when a defendant’s conviction is reversed by an appellate court on the sole ground that the evidence was insufficient to sustain the jury’s verdict, the Double Jeopardy Clause bars a retrial on the same charge. Id., at 18; see Greene v. Massey, 437 U. S. 19, 24 (1978); Hudson v. Louisiana, 450 U. S. 40, 42-43 (1981).

Burks was based on the view that an appellate court’s reversal for insufficiency of the evidence is in effect a determination that the government’s case against the defendant was so lacking that the trial court should have entered a judgment of acquittal, rather than submitting the case to the jury. Burks, 437 U. S., at 16-17. Because the Double Jeopardy Clause affords the defendant who obtains a judgment of acquittal at the trial level absolute immunity from further prosecution for the same offense, it ought to do the same for the defendant who obtains an appellate determination that the trial court should have entered a judgment of acquittal. Id., at 10-11, 16. The fact that the determination of entitlement to a judgment of acquittal is made by the appellate court rather than the trial court should not, we thought, affect its double jeopardy consequences; to hold otherwise “would create a purely arbitrary distinction” between defendants based on the hierarchical level at which the determination was made. Id., at 11.

The question presented by this case — whether the Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant’s conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction — was expressly reserved in Greene v. Massey, supra, at 26, n. 9, decided the same day as Burks. We think the logic of Burks requires that the question be answered in the affirmative.

Burks was careful to point out that a reversal based solely on evidentiary insufficiency has fundamentally different implications, for double jeopardy purposes, than a reversal based on such ordinary “trial errors” as the “incorrect receipt or rejection of evidence.” 437 U. S., at 14-16. While the former is in effect a finding “that the government has failed to prove its case” against the defendant, the latter “implies nothing with respect to the guilt or innocence of the defendant,” but is simply “a determination that [he] has been convicted through a judicial process which is defective in some fundamental respect.” Id., at 15 (emphasis added).

It appears to us to be beyond dispute that this is a situation described in Burks as reversal for “trial error” — the trial court erred in admitting a particular piece of evidence, and without it there was insufficient evidence to support a judgment of conviction. But clearly with that evidence, there was enough to support the sentence: the court and jury had before them certified copies of four prior felony convictions, and that is sufficient to support a verdict of enhancement under the statute. See Ark. Stat. Ann. §41-1003 (1977) (current version at Ark. Code Ann. § 5-4-504 (1987)). The fact that one of the convictions had been later pardoned by the Governor vitiated its legal effect, but it did not deprive the certified copy of that conviction of its probative value under the statute. It is quite clear from our opinion in Burks that a reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause — indeed, that was the ratio decidendi of Burks, see 437 U. S., at 16-17 — and the overwhelming majority of appellate courts considering the question have agreed. The basis for the Burks exception to the general rule is that a reversal for insufficiency of the evidence should be treated no differently than a trial court’s granting a judgment of acquittal at the close of all the evidence. A trial court in passing on such a motion considers all of the evidence it has admitted, and to make the analogy complete it must be this same quantum of evidence which is considered by the reviewing court.

Permitting retrial in this instance is not the sort of governmental oppression at which the Double Jeopardy Clause is aimed; rather, it serves the interest of the defendant by affording him an opportunity to “obtai[n] a fair readjudication of his guilt free from error.” Burks, supra, at 15; see Tibbs v. Florida, 457 U. S. 31, 40 (1982); United States v. DiFrancesco, 449 U. S. 117, 131 (1980); United States v. Scott, 437 U. S. 82, 91 (1978). Had the defendant offered evidence at the sentencing hearing to prove that the conviction had become a nullity by reason of the pardon, the trial judge would presumably have allowed the prosecutor an opportunity to offer evidence of another prior conviction to support the habitual offender charge. Our holding today thus merely recreates the situation that would have been obtained if the trial court had excluded the evidence of the conviction because of the showing of a pardon. Cf. our discussion in Burks, supra, at 6-7.

The judgment of the Court of Appeals is accordingly

Reversed.

Justice Marshall,

with whom

Justice Brennan and Justice Blackmun join, dissenting.

Under Arkansas law, a defendant who is convicted of a class B felony and “who has previously been convicted of. . . [or] found guilty of four [4] or more felonies” may be sentenced to an enhanced term of imprisonment ranging from 20 years to 40 years. Ark. Stat. Ann. §41-1001(2)(b) (1977) (current version at Ark. Code Ann. § 5 — 4—501(b)(3) (1987)). At the March 1982 sentencing trial held after Johnny Lee Nelson pleaded guilty to the class B felony of burglary, the State of Arkansas introduced evidence indicating that Nelson had four prior felony convictions. Nelson protested that he had received a gubernatorial pardon for one of the convictions. The prosecutor and the trial judge disbelieved Nelson’s claim, however, and the jury sentenced him to 20 years in prison. Three and a half years later — during which time Nelson, from jail, persistently implored Arkansas courts to investigate his pardon claim — a Federal District Court finally ordered the State to check its records. Lo and behold, it turned out that Nelson had been pardoned — and Arkansas soon announced its intention to try Nelson, once again, as a habitual offender.

The majority holds today that, although Arkansas attempted once and failed to prove that Nelson had the four prior convictions required for habitual offender status, it does not violate the Double Jeopardy Clause for Arkansas to attempt again. I believe, however, that Nelson’s retrial is squarely foreclosed by Burks v. United States, 437 U. S. 1 (1978), where we held that a State may not retry a defendant where it failed initially to present sufficient evidence of guilt. The majority rushes headlong past those facets of Nelson’s case and of Arkansas law that reveal the prosecution’s failure to present sufficient evidence of guilt in this case, in order to answer the open and narrow question of double jeopardy law on which the Court granted certiorari. By virtue of the majority’s haste, Nelson now faces a new sentencing trial, and Arkansas will be able to augment the evidence it presented at Nelson’s initial trial with evidence of prior convictions it opted not to introduce in the first place. Because this result embodies the classic double jeopardy evil of a State “honing its trial strategies and perfecting its evidence through successive attempts at conviction,” Tibbs v. Florida, 457 U. S. 31, 41 (1982), I dissent.

I

The Double Jeopardy Clause is “designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.” Green v. United States, 355 U. S. 184, 187 (1957). Reflecting this principle, we held in Burks that the prohibition against double jeopardy prevents retrial where a State’s evidence at trial is found insufficient. See also Hudson v. Louisiana, 450 U. S. 40 (1981); Greene v. Massey, 437 U. S. 19 (1978). The Burks rule is based on the time-honored notion that the State should be given only “one fair opportunity to offer whatever proof it [can] assemble.” Burks, supra, at 16. Unlike a finding of reversible trial error, which traditionally has not barred retrial, see United States v. Tateo, 377 U. S. 463 (1964); United States v. Ball, 163 U. S. 662 (1896), reversal for evidentiary insufficiency “constitute^] a decision to the effect that the government has failed to prove its case.” Burks, supra, at 15.

This case is troubling in a number of respects, not the least of which is that no one in the Arkansas criminal justice system seems to have taken Nelson’s pardon claim at all seriously. At bottom, however, this case is controlled by the Burks insufficiency principle. For under Arkansas’ law of pardons, the State’s evidence against Nelson in his sentencing trial was at all times insufficient to prove four valid prior convictions. The majority errs in treating this as a case of mere trial error, and in reaching the unsettled issue whether, after a trial error reversal based on the improper admission of evidence, a reviewing court should evaluate the sufficiency of the evidence by including, or excluding, the tainted evidence. See Greene v. Massey, supra, at 26, n. 9 (expressly reserving this question). This case has nothing to do with inadmissible evidence and everything to do with Arkansas’ defective proof.

As the District Court noted in ruling for Nelson, Arkansas decisional law holds that pardoned convictions have no probative value in sentence enhancement proceedings. See 641 F. Supp. 174, 183 (ED Ark. 1986) (under Arkansas law: “[A] pardon renders the conviction a nullity. . . . [F]or purposes of the enhancement statute, a conviction which has been pardonned [sic] is not a conviction”). The District Court cited a 1973 decision of the Arkansas Supreme Court, Duncan v. State, 254 Ark. 449, 494 S. W. 2d 127 (1973), which held that a pardoned conviction cannot be counted toward the four prior convictions required under the State’s sentence enhancement statute. The Duncan court, id., at 451, 494 S. W. 2d, at 129, quoted with approval this Court’s decision in Ex parte Garland, 4 Wall. 333, 380 (1867), where we stated: “A pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” Drawing upon that state-court holding, the District Court in this case concluded: “The truth is that the state could not have provided any evidence to rebut the petitioner’s contention because it did not exist.” 641 F. Supp., at 184.

That Arkansas was not roused to investigate Nelson’s pardon claim until long after his trial does not transform the State’s failure of proof — fatal for double jeopardy purposes under Burks — into a mere failure of admissibility. As the District Court noted, Arkansas law establishes “that the prosecutor must carry the significant burden of ferreting out information regarding the validity of prior convictions whenever he seeks enhancement.” 641 F. Supp., at 184 (citing Roach v. State, 255 Ark. 773, 503 S. W. 2d 467 (1973)). The delay in the discovery of Nelson’s pardon does not change the essential fact that, as a matter of state law, the paper evidence of the disputed conviction presented by the prosecutor was devoid of probative value from the moment the conviction was expunged by the pardon. A pardon simply “blots out of existence” the conviction as if it had never happened. Duncan v. State, supra, at 451, 494 S. W. 2d, at 129. If, in seeking to prove Nelson’s four prior convictions, the State had offered documented evidence to prove three valid prior convictions and a blank piece of paper to prove a fourth, no one would doubt that Arkansas had produced insufficient evidence and that the Double Jeopardy Clause barred retrial. There is no constitutionally significant difference between that hypothetical and this case.

In sum, Arkansas had “one fair opportunity to offer whatever proof it could assemble” that Nelson had four prior convictions, Burks, 437 U. S., at 16, but it “failed to prove its case.” Id., at 15. In reversing both the District Court and the Court of Appeals to give Arkansas a second chance to sentence Nelson as a habitual offender, the majority pays no more than lipservice to the Burks insufficiency principle. I would therefore hold that the Double Jeopardy Clause prohibits Arkansas from subjecting Nelson to a new sentencing trial at which it can “supply evidence” of a fourth conviction “which it failed to muster in the first proceeding.” Id., at 11.

II

Even if I did not regard this as a case of insufficient evidence controlled by Burks, I could not join my colleagues in the majority. The question whether a reviewing court, in evaluating insufficiency for double jeopardy purposes, should look to all the admitted evidence, or just the properly admitted evidence, is a complex one. It is worthy of the thoughtful consideration typically attending this Court’s decisions concerning the Double Jeopardy Clause.

The majority instead resolves this issue as if it had already been decided. Ante, at 40-41. In the majority’s view: “It is quite clear from our opinion in Burks that a reviewing court must consider all of the evidence admitted by the trial court in deciding whether retrial is permissible under the Double Jeopardy Clause.” Ibid. Burks decided no such thing. At issue in Burks was whether a finding of initial insufficiency bars a defendant’s retrial; we held that it did. Burks did not presume to decide the completely distinct issue, raised by this case, of by what measure a reviewing court evaluates insufficiency in cases where a piece of evidence which went to the jury is later ruled inadmissible. Indeed, had Burks settled or even logically foreclosed this issue, there would have been no reason for us specifically to reserve its resolution in Greene v. Massey, 437 U. S., at 26, n. 9 — a case decided the very same day as Burks.

It seems to me that the Court’s analysis of this issue should begin with the recognition that, in deciding when the double jeopardy bar should apply, we are balancing two weighty interests: the defendant’s interest in repose and society’s interest in the orderly administration of justice. See, e. g., United States v. Tateo, 377 U. S., at 466. The defendant’s interest in avoiding successive trials on the same charge reflects the idea that the State

“should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S., at 187-188.

See also Burks, supra, at 11. Society’s corresponding interest in the sound administration of justice reflects the fact that “[i]t would be a high price indeed for society to pay were every accused granted immunity from punishment because of any defect sufficient to constitute reversible error in the proceedings leading to conviction.” United States v. Tateo, supra, at 466.

I do not intend in this dissenting opinion to settle what rule best accommodates these competing interests in cases where a reviewing court has determined that a portion of a State’s proof was inadmissible. At first blush, it would seem that the defendant’s interest is every bit as great in this situation as in the Burks situation. Society’s interest, however, would appear to turn on a number of variables. The chief one is the likelihood that retrying the defendant will lead to conviction. See United States v. Tateo, supra, at 466 (noting society’s interest “in punishing one whose guilt is clear”). In appraising this likelihood, one might inquire into whether prosecutors tend in close cases to hold back probative evidence of a defendant’s guilt; if they do not, there would be scant societal interest in permitting retrial given that the State’s remaining evidence is, by definition, insufficient. Alternatively, one might inquire as to why the evidence at issue was deemed inadmissible. Where evidence was stricken for reasons having to do with its unreliability, it would seem curious to include it in the sufficiency calculus. Inadmissible hearsay evidence, for example, or evidence deemed defective or nonprobative as a matter of law thus might not be included. By contrast, evidence stricken in compliance with evidentiary rules grounded in other public policies — the policy of encouraging subsequent remedial measures embodied in Federal Rule of Evidence 407, for example, or the policy of deterring unconstitutional searches and seizures embodied in the exclusionary rule — might more justifiably be included in a double jeopardy sufficiency analysis.

The Court today should have enunciated rules of this type, rules calibrated to accommodate, as best as possible, the defendant’s interest in repose with society’s interest in punishing the guilty. Regrettably, the majority avoids such subtlety in its terse opinion. Instead, it opts for a declaration that our decision in Burks — although no one knew it at the time — was settling the issue on which we granted certiorari here. This is ipse dixit jurisprudence of the worst kind. I dissent.

       Ark. Stat. Ann. § 41-1003 (1977) provided as follows:
      “. . . A previous conviction or finding of guilt of a felony may be proved by any evidence that satisfies the trier of fact beyond a reasonable doubt that the defendant was convicted or found guilty. The following are sufficient to support a finding of a prior conviction or finding of guilt:
      “(1) a duly certified copy of the record of a previous conviction or finding of guilt by a court of record; or
      “(2) a certificate of the warden or other chief officer of a penal institution of this state or of another jurisdiction, containing the name and fingerprints of the defendant, as they appear in the records of his office; or
      “(3) a certificate of the chief custodian of the records of the United States Department of Justice, containing the name and fingerprints of the defendant as they appear in the records of his office.”

       There is no indication that the prosecutor knew of the pardon and was attempting to deceive the court. We therefore have no occasion to consider what the result would be if the case were otherwise. Cf. Oregon v. Kennedy, 456 U. S. 667 (1982).

       Prior to 1981, the Arkansas statute assigned responsibility for determining whether the State had proved the requisite number of prior convictions to the jury. Ark. Stat. Ann. § 41-1005 (1977). In 1981, the Arkansas General Assembly amended the statute to reassign this responsibility to the trial court. 1981 Ark. Gen. Acts 252 (Feb. 27, 1981) (codified at Ark. Stat. Ann. § 41-1Q05 (Supp. 1985) (current version at Ark. Code Ann. §5-4-502 (1987))). Though respondent’s trial took place after the 1981 amendments became effective, the trial court, evidently unaware of the amendments, permitted the jury to make the factual finding as to the number of prior convictions proved by the State. No objection was made by either side, and the error has no bearing on the double jeopardy issue before us.

         Respondent challenged the use of the pardoned conviction to enhance his sentence on direct appeal. The Arkansas Court of Appeals rejected this claim because of respondent’s failure to make a contemporaneous objection to the use of that conviction. Nelson v. State, No. CA CR 83-150 (May 2, 1984), App. 13. Respondent later petitioned the Arkansas Supreme Court for posteonviction relief, which was denied on the ground that respondent’s “bare assertion” of a pardon, unsupported by any factual evidence, was an insufficient basis on which to grant relief. Nelson v. State, No. CR 84-133 (Nov. 19, 1984), App. 15.

      The District Court made clear, however, that the Double Jeopardy Clause did not prevent the State from resentencing respondent for the class B felony itself, under the sentencing rules applicable in the absence of proof of habitual criminal status. See 641 F. Supp., at 186.

      The State has attacked the ruling below on a single ground: that the defect in respondent’s first sentence enhancement proceeding does not bar retrial. To reach this question, we would ordinarily have to decide two issues which are its logical antecedents: (1) whether the rule that the Double Jeopardy Clause limits the State’s power to subject a defendant to suecessive capital sentencing proceedirigs, see Bullington v. Missouri, 451 U. S. 430 (1981), carries over to noncapital sentencing proceedings, see North Carolina v. Pearce, 395 U. S. 711, 720 (1969); and (2) whether the rule that retrial is prohibited after a conviction is set aside by an appellate court for evidentiary insufficiency, see Burks v. United States, 437 U. S. 1 (1978), is applicable when the determination of evidentiary insufficiency is made instead by a federal habeas court in a collateral attack on a state conviction, see Justices of Boston Municipal Court v. Lydon, 466 U. S. 294 (1984). The courts below answered both questions in the affirmative, and the State has conceded both in its briefs and at oral argument the validity of those rulings. We therefore assume, without deciding, that these two issues present no barrier to reaching the double jeopardy claim raised here.

       We are not at all sure that the. Court of Appeals was correct to describe the evidence of this conviction as “inadmissible,” in view of the Arkansas statutory provision and the colloquy between court, counsel, and defendant referred to above. Evidence of the disputed conviction was introduced, and it was mistakenly thought by all concerned that the conviction had not been pardoned. Several years later it was discovered that the conviction had in fact been pardoned; the closest analogy would seem to be that of “newly discovered evidence.” For purposes of our decision, however, we accept the characterization of the Court of Appeals.

       See, e. g., United States v. Gonzalez-Sanchez, 825 F. 2d 572, 588, n. 57 (CA1 1987); United States v. Hodges, 770 F. 2d 1475, 1477-1478 (CA9 1985); Webster v. Duckworth, 767 F. 2d 1206, 1214-1216 (CA7 1985); United States v. Marshall, 762 F. 2d 419, 423 (CA5 1985); United States v. Bibbero, 749 F. 2d 581, 586, n. 3 (CA9 1984); United States v. Key, 725 F. 2d 1123, 1127 (CA7 1984); United States v. Tranowski, 702 F. 2d 668, 671 (CA7 1983), cert. denied, 468 U. S. 1217 (1984); United States v. Sarmiento-Perez, 667 F. 2d 1239 (CA5), cert. denied, 459 U. S. 834 (1982); United States v. Harmon, 632 F. 2d 812 (CA9 1980); United States v. Mandel, 591 F. 2d 1347, 1373-1374 (CA4), rev’d on other grounds, 602 F. 2d 653 (1979), cert. denied, 445 U. S. 961 (1980); Harris v. State, 284 Ark. 247, 681 S. W. 2d 334 (1984); People v. Rios, 163 Cal. App. 3d 852, 870-871, 210 Cal. Rptr. 271, 283-284 (1985); People v. Sisneros, 44 Colo. App. 65, 606 P. 2d 1317 (1980); State v. Gray, 200 Conn. 523, 536-540, 512 A. 2d 217, 225-226 (1986); Hall v. State, 244 Ga. 86, 93-94, 259 S. E. 2d 41, 46-47 (1979); People v. Taylor, 76 Ill. 2d 289, 309, 391 N. E. 2d 366, 375 (1979); Morton v. State, 284 Md. 526, 397 A. 2d 1385 (1979); Commonwealth v. Mattingly, 722 S. W. 2d 288 (Ky. 1986); Commonwealth v. Taylor, 383 Mass. 272, 283-285, 418 N. E. 2d 1226, 1233-1234 (1981); State v. Wood, 596 S. W. 2d 394 (Mo.), cert. denied, 449 U. S. 876 (1980); Roeder v. State, 688 S. W. 2d 856, 859-860 (Tex. Crim. App. 1985); State v. Lamorie, 610 P. 2d 342, 346-349 (Utah 1980); State v. Van Isler, 168 W. Va. 185, 283 S. E. 2d 836 (1981).

       Nelson pleaded guilty to having taken $45.00 from a vending machine in 1979. See 641 F. Supp. 174, 175 (ED Ark. 1986).

       The conviction for which Nelson was pardoned was a 1960 conviction for assault with intent to rape. He was pardoned in 1964 by Arkansas Governor Orval E. Faubus. App. 6 (text of pardon).
      The record in this case shows that Nelson attempted unsuccessfully both during and after his trial to alert state authorities to this pardon. During the trial, Nelson stated that after serving three years in jail, he “had the case investigated and the governor at the time Faubus which [sic] gave me a pardon for my sentence.” Id., at 8 (abridged transcript of sentencing trial). He added: “[A]t my home I have documents of that pardon on that [sic].” Id., at 9. The prosecutor did not question Nelson about this claim. Instead, the prosecutor moved to strike Nelson’s testimony on the ground that Nelson was “confused as to the meaning of the pardon and a commutation.” Id., at 11. The prosecutor further stated: “I think the records are clear that are in the court. . . .” Id., at 11-12. Ultimately, the trial judge, and Nelson’s own defense counsel — who like the prosecutor had never investigated Nelson’s claim of pardon — accepted this account. Id., at 12.
      After receiving the enhanced sentence, Nelson sought both on direct appeal and in state postconviction actions to have his claim investigated. Only after a Federal District Court ordered Arkansas to investigate Nelson’s claim did Nelson’s pardon finally come to light — in August 1985. Id., at 1-4.

       The Court of Appeals did not disturb this determination of the District Court. Rather, it focused upon, and rejected, Arkansas’ separate contention that double jeopardy does not attach to sentence enhancement trials. See 828 F. 2d 446, 449 (CA8 1987). That issue is not before this Court, Arkansas having conceded the validity of this aspect of the Court of Appeals’ ruling. See ante, at 36-37, n. 4. The Court of Appeals also rejected as incorrect Arkansas’ claim that, in cases of trial error, reviewing courts should not engage in any subsequent review for insufficiency, however measured. 828 F. 2d, at 450.

      The majority offers its own analogy: the discovery of Nelson’s pardon, it states, is like “newly discovered evidence.” Ante, at 41, n. 7. The majority overlooks a critical distinction. The emergence of new evidence in no way strips the old evidence of all probative value; while new evidence may cast doubt on the persuasiveness of the old evidence, its emergence does not render once sufficient evidence “insufficient.” Arkansas’ law of pardons, by contrast, robs evidence of a pardoned conviction of all probative value. It was thus not the discovery of Nelson’s pardon that stripped his prior conviction of evidentiary weight, but rather the fact of the pardon itself. The discovery of Nelson’s pardon merely called the parties’ attention to this critical fact.

       None of the numerous appellate court cases cited by the majority in support of its resolution of this issue, ante, at 41, n. 8, interpreted Burks as disposing of the sufficiency question before us. Rather, with varying degrees of analysis, these courts evaluated the ramifications of including or excluding tainted evidence in a sufficiency analysis upon the interests of the defendant and of society — precisely the analytic approach I urge in the succeeding paragraphs. See, e. g., United States v. Tranowski, 702 F. 2d 668, 671 (CA7 1983) (concluding that policy arguments favor including tainted evidence in insufficiency analysis), cert. denied, 468 U. S. 1217 (1984); Bullard v. Estelle, 665 F. 2d 1347, 1358-1361 (CA5 1982) (using similar interest analysis in case involving retrial for sentence enhancement and concluding that inadmissible evidence should not be included in insufficiency analysis).

       It is no answer to say that prosecutors who initially lacked sufficient admissible evidence may gather more before a retrial. Such conduct is-precisely what the Double Jeopardy Clause was designed to guard against. See Tibbs v. Florida, 457 U. S. 31, 41 (1982).

       Arkansas suggests a “clear trial court ruling” test as a means of accommodating defense and societal interests. Under this test, where a trial court has affirmatively ruled that a piece of evidence is admissible, a State is entitled to rely on that ruling by counting this evidence in a subsequent insufficiency analysis — even if a reviewing court had ruled the evidence inadmissible. Brief for Petitioner 12. This test furthers a societal interest of which this Court took note in United States v. Tateo, 377 U. S. 463, 466 (1964): the interest in not deterring appellate courts from safeguarding defendants’ rights. It is not at all clear, however, that Arkansas’ test would authorize retrial in this case. Far from having refrained from introducing evidence of additional convictions in reliance on a trial court’s determination that Nelson had not received a pardon, the prosecutor in this case seems to have done all he could to lead the trial court to believe that Nelson’s pardon claim was meritless. See n. 2, supra.