text:
    No. 84-5303.
    Waye v. Morris, Superintendent, Mecklenburg Correctional Center.
   Sup. Ct. Va. Certiorari denied.

Justice Brennan,

dissenting.

Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227 (1976), I would grant certiorari and vacate the death sentence in this case.

Justice Marshall,

dissenting.

I

In state habeas corpus proceedings, petitioner argued that he was denied effective assistance of trial counsel as evidenced by that counsel’s failure to object to an instruction that was inconsistent with the decision this Court announced, one year after petitioner’s trial, in Sandstrom v. Montana, 442 U. S. 510 (1979). Petitioner’s sole defense at his capital trial for murder was lack of premeditation. The evidence at trial showed that petitioner had consumed a number of beers on the evening of the crime and that, immediately after killing the victim, he telephoned police to report that he “had killed somebody.” Petitioner accompanied sheriff’s deputies to the victim’s house, where he showed them the body. Petitioner was convicted of capital murder on April 7, 1978, and sentenced to death.

The instruction at issue, evidently taken from the Virginia form book of jury instructions, was as follows:

“The Court instructs the jury that a man is presumed to intend that which he does, or which is the immediate or necessary consequences [sic] of his act.”

As the State now concedes, there is no doubt that this instruction violates the Constitution, for in Sandstrom we held that a virtually identical instruction violated due process and the principles against burden shifting we had set forth in Mullaney v. Wilbur, 421 U. S. 684 (1975), and Patterson v. New York, 432 U. S. 197 (1977). Sandstrom, however, was decided by this Court on June 18, 1979, a little over a year after petitioner’s trial. The question presented by this petition is thus whether the failure of petitioner’s counsel, in a capital case in which premeditation was the only issue, to make the very same objection that Sandstrom’s trial counsel had made several years earlier indicates that petitioner was denied his Sixth Amendment right to effective counsel.

This question presents the Court with an important opportunity to give content to the generalized standards for constitutionally effective counsel announced last Term in Strickland v. Washington, 466 U. S. 668 (1984). With respect to the prejudice prong of Strickland, the fact that the Court has already seen fit to grant a petition for certiorari on the question whether Sandstrom error can ever be harmless indicates that the prejudice issue is worthy of the Court’s attention. Franklin v. Francis, 720 F. 2d 1206 (CA11 1983) and 723 F. 2d 770, cert. granted, 467 U. S. 1225 (1984); see also Connecticut v. Johnson, 460 U. S. 73 (1983) (four-justice plurality holding that Sandstrom error is never harmless). And with respect to the ineffectiveness component of Strickland— the requirement that counsel’s performance not fall below the “range of competence demanded of attorneys in criminal cases,” Strickland, supra, at 687— petitioner has marshaled a strong case.

Petitioner’s trial took place in April 1979. Nearly two years earlier, in Deer Lodge County, Mont., David Sandstrom’s counsel had realized that decisions from this Court made it virtually certain that the instruction used at petitioner’s trial was inconsistent with the Constitution, a contention with which we eventually and unanimously agreed. Our decision in Sandstrom, we stated, was a logical outgrowth of Mullaney v. Wilbur, supra—in which the Court invalidated an instruction that malice was to be implied unless th'e defendant rebutted this presumption — and Patterson v. New York, supra, at 215 —in which we reaffirmed that “a State must prove every ingredient of an offense beyond a reasonable doubt, and . . . may not shift the burden of proof to the defendant” by means of any presumption.' Both of these decisions, of course, were available to petitioner’s counsel at the time of trial.

Mullaney, in particular, should have put petitioner’s counsel on notice to make the objection. As petitioner informed the state habeas court, in the wake of Mullaney a spate of Virginia publications, including ones oriented to practitioners, had suggested that the Virginia instruction on implied malice used at petitioner’s trial was constitutionally defective. See, e. g., Comment, Has the Burger Court Dealt a Death Blow to the Presumption of Malice in Virginia, 10 U. Rich. L. Rev. 687 (1976); Friend, The Law of Evidence in Virginia §§89-93 (1977); see also Note, Reforming the Law of Homicide, 59 Va. L. Rev. 1270 (1973). In addition,a criminal lawyer of long experience in Virginia testified in petitioner’s state habeas proceedings that, after Mullaney and as of 1978, every competent attorney in a Virginia case in which premeditation was at issue would have viewed it as mandatory to object to the burden-shifting instruction. As the attorney said: “[I]f the Commonwealth requests an instruction that says presumption, if that word presumption is in there, the red flag goes up and the defendant ought to be prepared to object to it. Mullaney is one of the grounds.” Pet. for Cert. 10.

This is therefore not a case in which “defense counsel [failed to] recognize and raise every conceivable constitutional claim.” Engle v. Isaac, 456 U. S. 107, 134 (1982). Nor is it a case in which either “the defendant’s own statements or actions” or an arguably “tactical decision” of counsel can even plausibly justify the failings of petitioner’s counsel. Instead, trial counsel in a capital case “simply did not think” to make an objection that every competent attorney in Virginia allegedly would have made and that David Sandstrom’s counsel had thought to make a full two years earlier.

The way in which the state courts have treated petitioner’s ineffectiveness claim suggests that, at the least, this Court ought to vacate the judgment below and remand for reconsideration in light of Strickland. The Virginia Supreme Court denied a petition for appeal on the issue, stating simply in one sentence that there was no reversible error in the judgment of the State Circuit Court that had considered the merits of petitioner’s claim. To the extent it is possible to decipher the Circuit Court’s judgment, however, it seems primarily based on the conclusion that “[instructions given at Petitioner’s trial were both adequate and appropriate, and therefore Petitioner’s counsel was not ineffective in failing to ask for instructions which Petitioner now claims should have been requested” and the holding that “[a]s a matter of law, no evidence of prejudice has been shown . . . .” App. to Pet. for Cert. 7, 6. The former is an impermissible conclusion under Sandstrom and indicates that the court simply did not understand the nature of the Sandstrom claim. The latter conclusion, to the extent it is in fact a holding of law, also violates Sandstrom; to the extent the conclusion instead is an evidentiary one based on review of the record as a whole, the decision should still be vacated and remanded once this Court decides Francis, supra, and outlines the standard by which the prejudice prong of Strickland applies to Sandstrom claims.

In light of the substantiality of petitioner’s claim and the shoddy treatment it and our precedents have received in the Virginia courts, I would grant the petition and address the application of Strickland to this case. At a minimum, however, the petition should be granted and the judgment below vacated so that the state courts can start this time from the correct premise that a Sandstrom error was committed and then begin to consider petitioner’s ineffectiveness claim in light of that error and against the backdrop of our decision in Strickland.

II

Because I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 231 (1976), I would in any event grant the petition and vacate the death sentence. In this particular case, I would also grant the petition to address on the merits the questions of whether petitioner’s counsel performed with reasonable competence when he failed to object to a constitutionally defective instruction and whether petitioner was sufficiently prejudiced by this failure to warrant a new trial.

       To the extent there is any question as to whether petitioner was prejudiced by the defective instruction, the petition ought at least to be held for our decision in Francis, in which we will address the effect of Sandstrom error.

       Pet. for Cert. 3 (citing testimony at plenary hearing on state habeas petition).

       Again, to assure that similarly situated capital defendants are treated similarly, the Court should also consider holding this petition pending decision in Francis.

       I note also that, if petitioner’s counsel cannot be considered ineffective for failing to have raised this objection, it can only be because the claim was not sufficiently apparent at the time of trial that all reasonably competent attorneys would have raised it. In that case, under our decision last Term in Reed
        v. Ross, 468 U. S. 1 (1984), petitioner and his counsel would have had cause for the failure to raise it, and the federal habeas court would then be required to consider whether the failure to give the instruction sufficiently prejudiced petitioner as to require that court to consider the merits of petitioner’s challenge. Wainwright v. Sykes, 433 U. S. 72 (1977). That issue, of course, must be left in the first instance to the federal habeas court.


source: Caselaw Access Project

license: Public Domain

text:
    No. 83-436.
    Regan, Secretary of the Treasury, et al. v. Wald et al.,
   468 U. S. 222. Petition for rehearing denied.


text:
    No. 83-297.
    Armco Inc. v. Hardesty, Tax Commissioner of West Virginia,
   467 U. S. 638. Petition for rehearing denied.

Justice Powell would grant this petition.


text:
    October 10, 1984
    No. 84-428.
    Kemper v. Immigration and Naturalization Service.
   C. A. 9th Cir. Certiorari dismissed under this Court’s Rule 53.


author: Justice Brennan and Justice Marshall,

text:
    October 11, 1984
    No. A-253.
    Briley v. Booker, Warden.
   Application for stay of execution, which is scheduled for 11 p.m. on Friday, October 12, 1984, presented to The Chief Justice, and by him referred to the Court, denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant the application for stay and a petition for writ of certiorari and would vacate the death sentence in this case.


text:
    October 15, 1984
    No. 83-461.
    Club Mediterranee, S.A. v. Dorin et al.
   Appeal from App. Div., Sup. Ct. N. Y., 1st Jud. Dept., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 83-396.
    United States v. Moreno.
   C. A. 9th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Segura v. United States, 468 U. S. 796 (1984).

Justice Brennan, Justice White, and Justice Stevens dissent.


text:
    No. - - -.
    Bennett v. City of Slidell et al.
   Motion of petitioner to direct the Clerk to file a petition for writ of certio-rari with an appendix that does not comply with the Rules of this Court denied.


text:
    No. - - -.
    Lewis v. Frosch, Administrator of NASA.
   Motion to dispense with printing the petition for writ of certiorari denied.

Justice Stevens would grant the motion.


text:
    No. - - -.
    National Association for the Advancement of Colored People, Inc., et al. v. Daniel et al.
   Motion of appellants to file an appendix to a jurisdictional statement that does not comply with the Rules of this Court denied.

Justice Blackmun, Justice Stevens, and Justice O’Connor would grant the motion and require the appellants to file 40 copies of the appendix.


text:
    No. A-225.
    Herbert Schmidt & Co., aka Waffenfabrik Schmidt GmbH v. Latham et al.
   18th Jud. Dist. Ct. Tex., Somerville County. Application for stay, addressed to Justice O’Connor and referred to the Court, denied.


text:
    No. D-422.
    In re Disbarment of Harden.
    [For earlier order herein, see 466 U. S. 956.]
   Disbarment entered.


text:
    No. D-424.
    In re Disbarment of Stewart.
    [For earlier order herein, see 466 U. S. 956.]
   Disbarment entered.


text:
    No. D-428.
    In re Disbarment of Quello.
    [For earlier order herein, see 466 U. S. 969.]
   Disbarment entered.


text:
    No. D-430.
    In re Disbarment of Levinson.
    [For earlier order herein, see 467 U. S. 1202.]
   Disbarment entered.


text:
    No. D-432.
    In re Disbarment of Graffagnino.
    [For earlier order herein, see 467 U. S. 1203.]
   Disbarment entered.


text:
    No. D-440.
    In re Disbarment of Work.
    [For earlier order herein, see 468 U. S. 1223.]
   Disbarment entered.


text:
    No. D-441.
    In re Disbarment of Mushkin.
    [For earlier order herein, see 468 U. S. 1223.]
   Disbarment entered.


text:
    No. D-442.
    In re Disbarment of Sweeney.
    [For earlier order herein, see 468 U. S. 1223.]
   Disbarment entered.


text:
    No. D-455.
    In re Disbarment of Phillips.
   It is ordered that Monte Charles Phillips, of Kansas City, Mo., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-456.
    In re Disbarment of O’Brien.
   It is ordered that Francis Edward O’Brien, of Deer Park, N. Y., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-457.
    In re Disbarment of Shapiro.
   It is ordered that Alfred Bruce Shapiro, of Alexandria, La., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-458.
    In re Disbarment of Rey.
   It is ordered that Joseph J. Rey, Sr., of Odessa, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-459.
    In re Disbarment of Stachurski.
   It is ordered that Kenneth M. Stachurski, of San Antonio, Tex., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. D-460.
    In re Disbarment of Hines.
   It is ordered that Eugene Patrick Hines, of McLean, Va., be suspended from the practice of law in this Court and that a rule issue, returnable within 40 days, requiring him to show cause why he should not be disbarred from the practice of law in this Court.


text:
    No. 82-1922.
    Southern Motor Carriers Rate Conference, Inc., et al. v. United States.
   C. A. 11th Cir. [Certiorari granted, 467 U. S. 1240.] Motion of National Small Shipments Traffic Conference et al. for leave to file a brief as amici curiae granted.


text:
    No. 84-177.
    Illinois v. Hammock.
   App. Ct. Ill., 1st Dist. Motion of respondent for leave to proceed in forma pauperis granted.


text:
    No. 84-5450.
    In re Harris.
   Petition for writ of habeas corpus denied.


text:
    No. 83-1935.
    Tony and Susan Alamo Foundation et al. v. Donovan, Secretary of Labor.
   C. A. 8th Cir. Certiorari granted.


text:
    No. 84-127.
    Richardson-Merrell Inc. v. Koller, an Infant, by and Through Koller et ux., her Natural Guardians, et al.
   C. A. D. C. Cir. Certiorari granted.


text:
    No. 84-277.
    Board of Trustees of the Village of Scarsdale et al. v. McCreary et al.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 83-1569.
    No. 83-1733.
    Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc.; and Soler Chrysler-Plymouth, Inc. v. Mitsubishi Motors Corp.
   C. A. 1st Cir. Certiorari granted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 723 F. 2d 155.


text:
    No. 83-1739.
    Local Union No. 1020, United Brotherhood of Carpenters & Joiners of America, AFL-CIO v. McNaughton et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-1778.
    Montgomery v. Alabama.
   Ct. Crim. App. Ala. Certiorari denied.


text:
    No. 83-1958.
    No. 83-6760.
    Rogers v. Lockheed-Georgia Co. et al.; and Sanders v. Grand Union Co. et al.
   C. A. 11th Cir. Certiorari denied. Reported below: 720 F. 2d 1247.


text:
    No. 83-1967.
    Murray v. Branch Motor Express Co. et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-2075.
    Ranzoni et al. v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-6468.
    Askew v. F & W Express, Inc., et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-6757.
    Ossey v. Louisiana.
   Sup. Ct. La. Certiorari denied.


text:
    No. 83-6800.
    Amos v. Carroll, Superintendent, California Institution for Men.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 83-6849.
    Dennison v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6868.
    Schwartzbauer v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 83-6900.
    Tillis v. Williams, Director of Alabama Parole Board, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-10.
    City of Bethany, Illinois, et al. v. Federal Energy Regulatory Commission et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-109.
    Stich et ux. v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-133.
    Holliday v. Xerox Corp. et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-139.
    Clarence R. Yeager Distributing, Inc. v. National Labor Relations Board et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-274.
    Knapp Street Realty Corp. v. Wisconsin Insurance Plan et al.
   Ct. App. Wis. Certiorari denied.


text:
    No. 84-283.
    Seats et ux. v. Illinois.
   App. Ct. Ill., 5th Dist. Certiorari denied.


text:
    No. 84-291.
    Call et ux. v. California Tahoe Regional Planning Agency.
   Ct. App. Cal., 3d App. Dist. Certiorari denied.


text:
    No. 84-295.
    United Mexican States v. Olsen, a Minor, by Sheldon, Maternal Grandmother and Guardian ad Litem, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-296.
    Briggs Transportation Co. v. International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-297.
    Kirby v. West Virginia.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 84-298.
    Salibra v. Supreme Court of Ohio et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-303.
    Green et al. v. Santa Fe Industries, Inc., et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-304.
    Grann et al. v. City of Madison.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-305.
    Kelly v. Idaho.
   Ct. App. Idaho. Certiorari denied.


text:
    No. 84-306.
    Department of Revenue of Illinois et al. v. Continental Illinois National Bank & Trust Company of Chicago et al.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 84-308.
    Paar v. Finnerty, Sheriff, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-309.
    Canton Textile Mills, Inc., et al. v. Lathem.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 84-313.
    Simpson v. Simpson.
   Dist. Ct. App. Fla., 5th Dist. Certiorari denied.


text:
    No. 84-323.
    Leatherby Insurance Co., aka Western Employers Insurance Co. v. Merit Insurance Co.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-327.
    Finnell v. New Mexico.
   Sup. Ct. N. M. Certiorari denied.


text:
    No. 84-383.
    Argitakos v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-396.
    Jones v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-419.
    Maleno v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-423.
    Damsky v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5093.
    Walker v. Navajo-Hopi Indian Relocation Commission.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5235.
    Krejci v. United States Army Material Development Readiness Command et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5300.
    Royster v. Adams et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5309.
    Manning-El v. Wyrick, Warden, et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5315.
    Leach v. Carrasquillo et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5316.
    Bryant v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5318.
    Bell v. DeRobertis, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5324.
    Brown v. Newsome, Warden, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5327.
    Young v. DuCharme, Superintendent, Washington State Reformatory, et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5335.
    Davis v. Butler, Sheriff, et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5347.
    Ruben-Morell et al. v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5361.
    Borja v. Territory of Guam.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5376.
    Herald v. Kentucky.
   Sup. Ct. Ky. Certiorari denied.


text:
    No. 84-5387.
    Danielson v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5388.
    Knutti et al. v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5402.
    Majestic v. United States.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5403.
    Parson v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-5404.
    Perry v. Lockhart, Director, Arkansas Department of Corrections.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5409.
    Stevenson v. United States.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5413.
    McCollum v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5416.
    McFadden v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 83-1517.
    McCarthy, Director, California Department of Corrections, et al. v. Bruno.
   C. A. 9th Cir. Motion of respondent for leave to proceed informa pauperis granted. Certiorari denied.


text:
    No. 83-2144.
    Garrison, Warden, et al. v. Hudson.
   C. A. 4th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.


text:
    No. 83-6898.
    No. 84-5238.
    No. 84-5249.
    Campbell v. Tennessee. McCorquodale v. Kemp, Warden. Stewart v. Illinois.
   Sup. Ct. Tenn.;

Super. Ct. Ga., Butts County; and

Sup. Ct. Ill. Certiorari denied. Reported below: No. 83-6898, 664 S. W. 2d 281; No. 84-5249, 101 Ill. 2d 470, 463 N. E. 2d 677.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant certiorari and vacate the death sentences in these cases.


author: Justice Marshall,

text:
    No. 83-6994.
    Heiney v. Florida.
   Sup. Ct. Fla. Certiorari denied.

Justice Marshall,

with whom Justice Brennan joins,

dissenting.

I continue to adhere to my view that the death penalty is in all circumstances cruel and unusual punishment forbidden by the Eighth and Fourteenth Amendments. See Gregg v. Georgia, 428 U. S. 153, 231 (1976) (Marshall, J., dissenting); Furman v. Georgia, 408 U. S. 238, 314 (1972) (Marshall, J., concurring). I therefore dissent from the Court’s denial of the petition and would vacate the death sentence here.

I

I must also write, however, to point out an aspect of the trial judge’s sentencing decision that violates indispensable principles contained in the prevailing death penalty jurisprudence of this Court. The trial judge in this case overturned a jury recommendation of life and sentenced the defendant to die, in part out of a belief as to the law that is wholly inconsistent with the constitutional principles of Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978).

In reviewing the jury recommendation against death, the sentencing judge explained that he saw no mitigating circumstances, and that he believed the jury had based its recommendation on an “invalid” mitigating circumstance stemming from residual feelings of doubt as to guilt. Because he saw this as a legally improper mitigating circumstance he felt little hesitancy in putting their recommendation to the side. Since the sentencing here, the Florida Supreme Court seems to have added its voice in support of the proposition that lingering doubts as to guilt cannot be a ground for mitigating a death sentence.

“A convicted defendant cannot be ‘a little bit guilty.’ It is unreasonable for a jury to say in one breath that a defendant’s guilt has been proved beyond a reasonable doubt and, in the next breath, to say someone else may have done it, so we recommend mercy.” Buford v. State, 403 So. 2d 943, 953 (1981), cert. denied, 454 U. S. 1164 (1982).

The error of the sentencing judge in this case thus seems to have been enshrined in Florida law.

This Court, in Lockett and then more decisively in Eddings, held that any aspect of the case that could rationally support mitigation must be deemed a legally valid basis for mitigation. There is certainly nothing irrational — indeed, there is nothing novel— about the idea of mitigating a death sentence because of lingering doubts as to guilt. It has often been noted that one of the most fearful aspects of the death penalty is its finality. There is simply no possibility of correcting a mistake. The horror of sending an innocent defendant to death is thus qualitatively different from the horror of falsely imprisoning that defendant. The belief that such an ultimate and final penalty is inappropriate where there are doubts as to guilt, even if they do not rise to the level necessary for acquittal, is a feeling that stems from common sense and fundamental notions of justice. As such it has been raised as a valid basis for mitigation by a variety of authorities.

The wisdom behind mitigating death sentences in the face of doubts as to guilt led the drafters of the Model Penal Code to include that factor in their model death penalty statute as a mitigating factor so strong that its presence would exclude the possibility of death as a matter of law.

“Death Sentence Excluded. When a defendant is found guilty of murder, the Court shall impose sentence for a felony of the first dégree [i. e., a noncapital offense] if it is satisfied that:
“(f) although the evidence suffices to sustain the verdict, it does not foreclose all doubt respecting the defendant’s guilt.” ALI, Model Penal Code §210.6(1), p. 107 (Off. Draft, 1980).

In its explanatory comments the authors made their intentions clear:

“This provision is an accommodation to, the irrevocability of the capital sanction. Where doubt of guilt remains the opportunity to reverse a conviction on the basis of new evidence must be preserved, and a sentence of death is obviously inconsistent with that goal.” §210.6(1), Comment 5, p. 134.

The Fifth Circuit has also acknowledged the validity of the mitigating factor:

“The fact that jurors have determined guilt beyond a reasonable doubt does not necessarily mean that no juror entertained any doubt whatsoever. There may be no reasonable doubt — doubt based upon reason — and yet some genuine doubt exists. It may reflect a mere possibility; it may be but the whimsy of one juror or several. Yet this whimsical doubt — this absence of absolute certainty — can be real.
“The capital defendant whose guilt seems abundantly demonstrated may be neither obstructing justice nor engaged in an exercise in futility when his counsel mounts a vigorous defense on the merits. It may be proffered in the slight hope of unanticipated success; it might seek to persuade one or more to prevent unanimity for conviction; it is more likely to produce only whimsical doubt. Even the latter serves the defendant, for the juror entertaining doubt which does not rise to reasonable doubt can be expected to resist those who would impose the irremedial penalty of death.” Smith v. Balkcom, 660 F. 2d 573, 580-581 (1981), cert. denied, 459 U. S. 882 (1982).

Once again, the factor was presented as a valid one in Justice Stevens’ partial dissent in Spaziano v. Florida, 468 U. S. 447, 467 (1984). The dissent noted that the Spaziano jury “may well [have been] sufficiently convinced of [Spaziano’s] guilt to convict him, but nevertheless also sufficiently troubled by the possibility that an irrevocable mistake might be made . . . that [it] concluded that a sentence of death could not be morally justified in this case.” Id., at 488, n. 34. We did not then realize, however, that Florida seems to have denigrated this wholly proper mitigating factor as a matter of law.

Standing in sharp contradistinction to the Eddings and Lockett holdings, the refusal by Florida courts to consider this valid factor should be reviewed.

II -

Although this legal issue might arise in a sentencing scheme that respected the finality of a jury decision against death, it is not necessarily an accident that this case came from Florida’s system, where judges may override jury decisions for life. In Spaziano, which upheld the Florida system, the dissent cited data showing that judges are usually more likely to impose death than are juries. 468 U. S., at 488, n. 34. Where fully informed and rational juries decide that death is inappropriate, a judge’s override rarely if ever shows that, in spite of the jury, there was really no reasonable doubt but that death was appropriate. It is far more likely that the override decision simply fails to account for the more intangible or less traditionally “legal” elements of mitigation that informed a jury’s decision. This case seems a clear illustration. Indeed, the Spaziano dissent correctly suspected that a system of death sentencing by judges — “trained to distinguish proof of guilt from questions concerning sentencing” — would be less likely to recognize this valid mitigating circumstance. Ibid.

Eddings and Lockett entitle a defendant to a sentencer who can consider all mitigating circumstances, whether or not they conform to traditional legal categories. The weight assigned to any element can only be a function of the values of the community, for certainly there is no “objective” formula. Once a mitigating circumstance is considered, assigned weight, and determined to be sufficient to preclude death, the Constitution should allow no “superior” authority to remove that circumstance from the equation and impose death. To allow a judge to override a jury decision for life — as this Court did in Spaziano — not only places the defendant in the fundamentally unfair position of having to repetitively justify the appropriateness of one’s continued life, it also facilitates the denigration of a variety of mitigating circumstances.

Only a narrow reliance on legal formalism could lead one to question whether doubts as to guilt can be insufficient to preclude acquittal but sufficient to preclude death. The judge here concluded that the jury confronted the horror of sending to his death a defendant who might be innocent. But rather than accept that this was weighty logic in favor of life, he assumed that it was a form of logic that should be declared invalid by Florida courts. I dissent from the denial of the petition in this case.


text:
    No. 84-271.
    Illinois et al. v. Associated Milk Producers, Inc., et al.
   C. A. 8th Cir. Certiorari denied.

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


text:
    No. 84-294.
    Envirotech Corp. et al. v. Amstar Corp.
   C. A. Fed. Cir. Motion of Simmons Fastener Corp. for leave to file a brief as amicus curiae granted. Certiorari denied.


text:
    No. 84-5213.
    Palmer v. DeRobertis, Warden.
   C. A. 7th Cir. Certiorari denied.

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


text:
    No. 84-5566 (A-241).
    Knighton v. Louisiana.
   C. A. 5th Cir. Application for stay, presented to Justice White, and by him referred to the Court, denied. Certiorari denied.

Justice Brennan and Justice Marshall,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant the application for stay and the petition for writ of certiorari and would vacate the death sentence in this case.


text:
    October 19, 1984
    No. 84-275.
    Great Atlantic & Pacific Tea Co., Inc. v. Equal Employment Opportunity Commission.
   C. A. 3d Cir. Certiorari dismissed under this Court’s Rule 53.


text:
    October 29, 1984
    No. 83-6904.
    Collier v. Texas.
   Appeal from Ct. App. Tex., 3d Sup. Jud. Dist., dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-319.
    Falk v. State Bar of Michigan.
   Appeal from Sup. Ct. Mich, dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-408.
    Clear-View Cable T. V., Inc. v. Town of Narrows.
   Appeal from Sup. Ct. Va. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-5379.
    Medlin v. Poulson et al.
   Appeal from Sup. Ct. Alaska dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-5380.
    Summa v. Hasson et al.
   Appeal from C. A. 2d Cir. dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for writ of certiorari, certiorari denied.


text:
    No. 84-131.
    Intake Water Co. v. Yellowstone River Compact Commission et al.
   Appeal from D. C. Mont, dismissed for want of jurisdiction.


text:
    No. 84-196.
    Furman, dba Northside Secretarial Service v. The Florida Bar.
   Appeal from Sup. Ct. Fla. dismissed for want of substantial federal question.


text:
    No. 84-342.
    Fireside Chrysler-Plymouth, Mazda, Inc., et al. v. Edgar, Secretary of State of Illinois, et al.
   Appeal from Sup. Ct. Ill. dismissed for want of substantial federal question.


text:
    No. 84-361.
    Kempner v. Dearborn Local 2077, City of Dearborn Supervisory, Technical & Professional Employees, AFSCME, AFL-CIO, et al.
   Appeal from Ct. App. Mich. dismissed for want of substantial federal question.


text:
    No. 84-5421.
    Thompson v. Arkansas Social Services.
   Appeal from Sup. Ct. Ark. dismissed for want of substantial federal question.


text:
    No. 84-315.
    Leverson v. Conway, Commissioner, Vermont Department of Motor Vehicles.
   Appeal from Sup. Ct. Vt. dismissed for want of substantial federal question.

JUSTICE WHITE, JUSTICE BLACKMUN, and JUSTICE STEVENS would note probable jurisdiction and set case for oral argument.


text:
    No. 83-2082.
    Crooker v. United States Parole Commission.
   C. A. 1st Cir. Certiorari granted, judgment vacated, and case remanded for further consideration in light of the Solicitor General's present interpretation of Fed. Rule Crim. Proc. 32 asserted in his brief ified October 3, 1984, on behalf of the Parole Commission.


text:
    No. 84-346.
    Mintzes, Warden v. Wilson.
   C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis and certiorari granted. Judgment vacated and case remanded for further consideration in light of Strickland v. Washington, 466 U. S. 668 (1984).


text:
    No. - - -.
    No. - - -.
    No. - - -.
    Transit Casualty Co. v. Camp; Wakefield v. Hilton et al.; and Yacabucci v. Yacabucci.
   Motions to direct the Clerk to file the petitions for writs of certiorari out of time denied.


text:
    No. A-1.
    Becton v. United States.
   Application for bail pending appeal, addressed to JUSTICE BRENNAN and referred to the Court, denied.


text:
    No. A-215.
    Winslow et ux. v. Foote, Judge.
   Sup. Ct. Cob. Application for stay and order to show cause, addressed to JUSTICE BLACKMUN and referred to the Court, denied.


text:
    No. A-316.
    Barcelo, Governor of Puerto Rico v. Hernandez Agosto, President of Puerto Rico Senate.
   Application to stay issuance of the writ of mandamus granted by the United States Court of Appeals for the First Circuit, presented to JUSTICE REHNQUIST, and by him referred to the Court, denied.


author: JUSTICE BRENNAN and JUSTICE MARSHALL,

text:
    No. A-342.
    Knighton v. Blackburn, Warden.
   Application for stay of execution of sentence of death, presented to JUSTICE WHITE, and by him referred to the Court, denied.

JUSTICE BRENNAN and JUSTICE MARSHALL,

dissenting.

Adhering to our views that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, 428 U. S. 153, 227, 231 (1976), we would grant the application for stay and a petition for writ of certiorari and would vacate the death sentence in this case.


text:
    No. 9,
    Orig.
    United States v. Louisiana et al.
   Motion of Alabama for divided argument granted.

JUSTICE MARSHALL took no part in the consideration or decision of this motion.

[For earlier order herein, see, e. g., ante, p. 808.]


text:
    No. D-446.
    In re Disbarment of Winner.
   David Lee Winner, of Wooster, Ohio, having requested to resign as a member of the Bar of this Court, it is ordered that his name be stricken from the roll of attorneys admitted to practice before the Bar of this Court. The rule to show cause, heretofore issued on September 18, 1984 [468 U. S. 1248], is hereby discharged.


text:
    No. 82-1260.
    Copperweld Corp. et al. v. Independence Tube Corp.,
   467 U. S. 752. Motion of respondent for Court to enter order providing for nonretroactive application of judgment and other relief denied.

JUSTICE WHITE took no part in the consideration or decision of this motion.


text:
    No. 83-1329.
    Ponte, Superintendent, Massachusetts Correctional Institution v. Real.
   Sup. Ct. Jud. Mass. [Certiorari granted, ante, p. 814.] Motion of respondent for leave to proceed further herein in forma pauperis granted.


text:
    No. 83-1894.
    Pattern Makers' League of North America, AFL-CIO, et al. v. National Labor Relations Board et al.
   C. A. 7th Cir. [Certiorari granted, ante, p. 814.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 83-2165.
    Jones et al. v. Petit, Commissioner, Maine Department of Human Services.
   Sup. Jud. Ct. Me. The Solicitor General is invited to ifie a brief in this case expressing the views of the United States.


text:
    No. 84-231.
    Hooper et al. v. Bernalillo County Assessor.
   Ct. App. N. M. [Probable jurisdiction noted, ante, p. 878.] Motion of the parties to dispense with printing the joint appendix granted.


text:
    No. 84-5004.
    Ball v. United States.
   C. A. 4th Cir. [Certiorari granted, ante, p. 816.] Motion for appointment of counsel granted, and it is ordered that Jo S. Widener, of Bristol, Va., be appointed to serve as counsel for petitioner in this case.


text:
    No. 84-5495.
    Weems v. United States.
   C. A. 6th Cir. Motion of petitioner for leave to proceed in forma pauperis denied. Petitioner is allowed until November 19, 1984, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with Rule 33 of the Rules of this Court.

JUSTICE BRENNAN, JUSTICE MARSHALL, and JUSTICE STEVENS,

dissenting.

For the reasons expressed in Brown v. Herald Co., 464 U. S. 928 (1983), we would deny the petition for writ of certiorari without reaching. the merits of the motion to proceed in forma pauperis.


text:
    No. 84-479.
    In re Mobil Oil Corp. et al.
   Petition for writ of mandamus denied.

JUSTICE O'CONNOR took no part in the consideration or decision of this petition.


text:
    No. 84-325.
    No. 84-356.
    Metropolitan Life Insurance Co. v. Massachusetts; and Travelers Insurance Co. v. Massachusetts.
   Appeals from Sup. Jud. Ct. Mass. Probable jurisdiction noted, cases consolidated, and a total of one hour allotted for oral argument. Reported below: 391 Mass. 730, 463 N. E. 2d 548.


text:
    No. 83-2136.
    Connecticut Department of Income Maintenance v. Heckler, Secretary of Health and Human Services, et al.
   C. A. 2d Cir. Certiorari granted.


text:
    No. 83-2143.
    Tennessee v. Street.
   Ct. Crim. App. Tenn. Certiorari granted.


text:
    No. 84-55.
    Employers National Insurance Co. v. Ochoa.
   C. A. 5th Cir. Certiorari granted.


text:
    No. 84-194.
    United States v. Shearer, Individually, and as Administratrix for the Estate of Shearer.
   C. A. 3d Cir. Certiorari granted.


text:
    No. 84-261.
    Commodity Futures Trading Commission v. Weintraub et al.
   C. A. 7th Cir. Certiorari granted.


text:
    No. 84-312.
    Devine, Director, Office of Personnel Management v. NAACP Legal Defense and Educational Fund, Inc., et al.
   C. A. D. C. Cir. Motion of United Black Fund of America et al. for leave to file a brief as amici curiae granted. Certiorari granted.

JUSTICE MARSHALL took no part in the consideration or decision of this motion and this petition.


text:
    No. 84-335.
    Mitchell v. Forsyth.
   C. A. 3d Cir. Certiorari granted.

JUSTICE REHNQUIST took no part in the consideration or decision of this petition.


text:
    No. 84-5059.
    Ramirez v. Indiana.
   Ct. App. Ind. Motion of petitioner for leave to proceed in forma pauperis and certiorari granted.


text:
    No. 84-5108.
    Liparota v. United States.
   C. A. 7th Cir. Motion of petitioner for leave to proceed in fo'rma pauperis and certiorari granted.


text:
    No. 83-1702.
    Charleston Town Center Parking et al. v. Tri-State Steel Erectors, Inc.
   Sup. Ct. App. W. Va. Certiorari denied.


text:
    No. 83-1754.
    Massey v. Emergency Assistance, Inc., et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-2022.
    Gribble v. Buckner, Judge, General Sessions Court of Rutherford County, Tennessee, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 83-2057.
    Martin v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 83-2062.
    Martin v. California.
   Ct. App. Cal., 4th App. Dist. Certiorari denied.


text:
    No. 83-2083.
    Lyons v. United States.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-2114.
    Kearney v. Ehrichs et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-2117.
    American Trucking Assns., Inc., et al. v. Interstate Commerce Commission et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 83-6407.
    Robinson v. Lane, Director, Illinois Department of Corrections.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6540.
    Brewer v. Illinois.
   App. Ct. Ill., 3d Dist. Certiorari denied.


text:
    No. 83-6786.
    Mills v. South Carolina.
   Sup. Ct. S. C. Certiorari denied.


text:
    No. 83-6798.
    Gary v. California.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 83-6815.
    Sherer v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 83-6838.
    Paulson v. Black, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-6840.
    Shannon v. DeRobertis, Warden, et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-6852.
    White v. Illinois.
   App. Ct. Ill., 1st Dist. Certiorari denied.


text:
    No. 83-6917.
    Bostone v. New York.
   App. Div., Sup. Ct. N. Y., 1st Jud. Dept. Certiorari denied.


text:
    No. 83-6918.
    Chapman v. Musich et al.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-6966.
    Mackey v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 83-7006.
    White Lance v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 83-7019.
    Melmuka v. Wellborn, Warden.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 83-7029.
    Rose v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-62.
    Atlas Machine & Iron Works, Inc. v. Tennessee Valley Authority.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-74.
    Bailey v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-170.
    Impro Products, Inc. v. Block, Secretary of Agriculture.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-193.
    Wolfson v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-210.
    McDonald v. Braniff Airways, Inc., et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-217.
    Intermountain Rural Electric Assn. v. National Labor Relations Board.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-225.
    Malizia v. New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-270.
    Ghidoni v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-273.
    Ridge et al. v. Pennsylvania State Employees' Retirement Board et al.
   Sup. Ct. Pa. Certiorari denied.


text:
    No. 84-281.
    Schulist Farms, Inc., et al. v. ITT Consumer Finance Corp. et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-314.
    Giglio v. Dunn et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-317.
    Wright v. Virginia.
   Sup. Ct. Va. Certiorari denied.


text:
    No. 84-330.
    Gaynor-Stafford Industries, Inc. v. Water Pollution Control Authority of the Town of Stafford et al.
   Sup. Ct. Conn. Certiorari denied.


text:
    No. 84-334.
    Peat, Marwick, Mitchell & Co. v. Mosesian.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-341.
    Rosenfeld v. Cohn et al.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-343.
    Gabriel v. Interstate Commerce Commission et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-344.
    Youngs v. Broome County Department of Social Services et al.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-345.
    Barker v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-350.
    Independent School District No. 196, Rosemount-Apple Valley, Minnesota, et al. v. Cybyske.
   Sup. Ct. Minn. Certiorari denied.


text:
    No. 84-353.
    Howell, dba Howell Electric Co. v. State Board of Equalization of California.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-354.
    Lengyel v. Board of Regents of Northern Kentucky University et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-359.
    Sagan v. Harvey et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-369.
    Leak v. St. Joseph Hospital of Joliet et al.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-370.
    White v. Vathally et al.
   C. A. 1st Cir. Certiorari denied.


text:
    No. 84-373.
    Juarbe, Director, Bureau of Special Investigations of the Puerto Rico Department of Justice v. Perez, Chairman, Judiciary Committee of the Puerto Rico Senate, et al.
   Sup. Ct. P. R. Certiorari denied.


text:
    No. 84-375.
    Levin v. Registration and Disciplinary Commission of Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 84-381.
    Seaflite, Inc. v. Director, Department of Transportation of Hawaii, et al.
   Sup. Ct. Haw. Certiorari denied.


text:
    No. 84-394.
    Kenngott v. United States.
   C. A. 7th Cir. Certiorari denied.


text:
    No. 84-398.
    Kimble v. Worth County R-III Board of Education.
   Ct. App. Mo., Western Dist. Certiorari denied.


text:
    No. 84-399.
    Breath, dba The Roach Coach v. Cronvich et al.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-422.
    Palumbo v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-424.
    Karapinka v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-434.
    Potamitis v. United States.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-448.
    Vilato v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-462.
    Balter, Assistant Public Defender of Monroe County v. Regan, Judge of the City Court of Rochester, New York.
   Ct. App. N. Y. Certiorari denied.


text:
    No. 84-487.
    Lumber & Mill Employers Assn. v. National Labor Relations Board.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5013.
    Perkins v. Mintzes, Warden.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5057.
    Bethea v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5120.
    Byers v. United States.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5126.
    Forrester v. Internal Revenue Service.
   C. A. 9th Cir. Certiorari denied.


text:
    No. 84-5157.
    Morgan v. Armontrout, Warden.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5167.
    No. 84-5176.
    Booth v. United States; and Kessler v. United States.
   C. A. 9th Cir. Certiorari denied. Reported below: 756 F. 2d 1342.


text:
    No. 84-5204.
    Flynn v. Barker.
   Ct. App. Ind. Certiorari denied.


text:
    No. 84-5245.
    King v. Coombe, Superintendent, Eastern Correctional Facility.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5331.
    Martin v. Illinois.
   Sup. Ct. Ill. Certiorari denied.


text:
    No. 84-5338.
    Bloodgood v. Garraghty, Warden, et al.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5342.
    Hurd v. Hurd.
   Sup. Ct. Cal. Certiorari denied.


text:
    No. 84-5353.
    Paxton v. Jarvis, Sheriff, DeKalb County.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5354.
    Thomas v. Brown, Warden, et al.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5356.
    Novel v. Beacon Operating Corp.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5357.
    Friend v. Rees, Superintendent, Kentucky State Reformatory, et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5359.
    Hall v. Chessie Systems et al.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5360.
    Jeske v. City of Milwaukee et al.
   Sup. Ct. Wis. Certiorari denied.


text:
    No. 84-5366.
    Hayes v. Brotherhood of Railway & Airline Clerks, Allied Services Division.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5368.
    Cunningham v. Nevada.
   Sup. Ct. Nev. Certiorari denied.


text:
    No. 84-5384.
    Morgan v. Procunier, Director, Texas Department of Corrections.
   C. A. 5th Cir. Certiorari denied.


text:
    No. 84-5385.
    Ryan v. Smith et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5386.
    Evans v. Evans.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5392.
    Trujillo v. Winans, Warden.
   C. A. 10th Cir. Certiorari denied.


text:
    No. 84-5394.
    Saulsberry v. Wainwright, Secretary, Florida Department of Corrections.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5395.
    Nally v. Stephens et al.
   Sup. Ct. Ga. Certiorari denied.


text:
    No. 84-5400.
    Perry v. Brown et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5405.
    Brown v. Nail et al.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5415.
    Carter v. Department of the Air Force et al.
   C. A. D. C. Cir. Certiorari denied.


text:
    No. 84-5427.
    Ellerbe v. United States.
   Ct. App. D. C. Certiorari denied.


text:
    No. 84-5429.
    Locklear v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5431.
    Dukes v. Maryland.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5434.
    Neil v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5437.
    Peeler v. United States.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5438.
    Pearson v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5445.
    Woe, by his Mother and Guardian, Woe v. Cuomo, Governor of New York, et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5447.
    Spear v. United States.
   C. A. Fed. Cir. Certiorari denied.


text:
    No. 84-5453.
    Patterson v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5460.
    Bain v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5465.
    Korkowski et ux. v. Commissioner of Internal Revenue.
   C. A. 8th Cir. Certiorari denied.


text:
    No. 84-5471.
    Ramsey v. United States.
   C. A. 11th Cir. Certiorari denied.


text:
    No. 84-5475.
    Fuller v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5478.
    Walsh v. United States.
   C. A. 6th Cir. Certiorari denied.


text:
    No. 84-5483.
    McIntosh v. United States et al.
   C. A. 2d Cir. Certiorari denied.


text:
    No. 84-5508.
    Daniel v. United States.
   C. A. 4th Cir. Certiorari denied.


text:
    No. 84-5509.
    Beaty v. Patton et al.
   C. A. 3d Cir. Certiorari denied.


text:
    No. 84-5512.
    Nelson v. United States.
   C. A. 5th Cir. Certiorari denied.


author: JUSTICE BRENNAN,

text:
    No. 83-1643.
    Borchardt v. United States.
   C. A. 5th Cir. Certiorari denied.

JUSTICE BRENNAN,

with whom JUSTICE MARSHALL joins,

dissenting.

The petitioner Ira Borchardt challenges a judgment of the Fifth Circuit affirming his felony conviction for violations of the currency laws. A federal jury sitting in the Northern District of Texas found that Borchardt smuggled large sums of currency out of the country in furtherance of an illegal scheme to purchase and import marihuana from Mexico. Borchardt contends that, because he charges by a federal jury sitting in the Southern District of Texas, the Northern District prosecution and conviction for the currency offenses violated his right under the Fifth Amendment’s Double Jeopardy Clause not to be tried successively for the same criminal acts. The Government responds that (1) there was no double jeopardy violation; and (2) in any event, Borchardt’s Sixth Amendment venue rights precluded the joinder of all charges at a single trial. whether the

I believe this case presents an important question second prosecution and conviction impermissibly rest on criminal acts that formed the basis of Borchardt’s first conviction. I also believe the case presents an important question whether the Government improperly has exploited Borchardt’s venue rights to defeat his right otherwise to be secure from repetitious prosecutions for the same criminal acts. The venue issue, in particular, is a substantial federal question that is likely to recur with frequency. I therefore respectfully dissent from the Court’s denial of certiorari.

I

Borchardt began to conspire with several other individuals in August 1980 to import marihuana from Mexico into the Dallas-Fort Worth area, which is in the Northern District of Texas. Twice that autumn, Borchardt and his co-conspirators surreptitiously flew a total of $126,000 from the Dallas-Fort Worth Airport to Mexico City for the purpose of purchasing marihuana. Borchardt spent much of the next several months in Mexico making preparations to transport the purchases back into the Dallas-Fort Worth area. Between December 1980 and February 1981, he arranged for three airplane flights that carried a total of approximately 2,600 pounds of marihuana. The scheme began to unravel when, during the third flight on February 22, 1981, the airplane encountered bad weather, ran out of fuel, and crash-landed outside the town of Raymondville, which is in the Southern District of Texas. Borchardt, who had remained behind in Mexico, returned to this country and was arrested shortly thereafter. District

The United States Attorney for the Southern Texas obtained an indictment in December 1981. Borchardt was charged with importing marihuana into the Southern District on February 22, 1981, and with constructively possessing marihuana on that date with the intent to distribute it. He also was charged with conspiring, “from on or about November 1, 1980, to on or about February 26, 1981,” to import, possess, and distribute marihuana. 1 Record 27. The conspiracy charges against Borchardt rested on his role in smuggling the currency into Mexico on the two occasions discussed above, his supervision of the shipments from Mexico, and his participation in various planning meetings and telephone conferences. The jury convicted Borchardt on all counts, and the District Court sentenced him to 10 years in prison. The Court of Appeals for the Fifth Circuit affirmed the conviction. United States v. Borchardt, 698 F. 2d 697 (1983).

In July 1982, shortly after Borchardt’s conviction in the Southern District, the United States Attorney for the Northern District of Texas obtained a second indictment relating to the importation conspiracy. Borchardt was charged with two counts of violating the currency laws; these counts represented the two occasions he had smuggled currency into Mexico. Specifically, the indictment charged that Borchardt on these two occasions had violated 31 U. S. C. § 1059 (1976 ed.), which proscribed the willful failure to file currency reports when taking money out of the country “where the violation is . . . committed in furtherance of the commission of any other violation of Federal law ...” (emphasis added). The Northern District indictment charged that Borchardt had violated the currency-reporting requirements “in furtherance of . . . the illegal importation of marijuana.” 1 Record 10-11.

Borchardt moved to dismiss the second indictment. Id., at 24; see also id., at 294. He argued that his currency smuggling already had been used in the Southern District trial to obtain his conviction for conspiracy to import and distribute marihuana, that a second trial would require the same evidence concerning the same acts as had been elicited at the first, and that to obtain a conviction under § 1059 the Government would have to retry the underlying felonies that he had been convicted of only months before. The District court denied Borchardt’s motion. 3 Record 26; 11 Record 3-4. The jury convicted Borchardt of both counts, and the court sentenced him to consecutive sentences of four years for each violation, to be served consecutively to the sentence he was serving for the conviction in the Southern District of Texas. The Fifth Circuit affirmed in an unpublished opinion, No. 82-1719 (Dec. 20, 1983), judgment order reported at 723 F. 2d 905, and denied panel rehearing and rehearing en banc.

II

This case does not implicate the acknowledged power of the Federal Government to seek, at a single criminal trial, separate and consecutive punishments for various aspects of a single criminal act. See, e. g., Albernaz v. United States, 450 U. S. 333 (1981). Rather, it presents the “entirely different constitutional issue” whether such multiple punishments may be obtained through “multiple prosecutions of the same offenses.” Abbate v. United States, 359 U. S. 187, 198 (1959) (separate opinion of Brennan, J.) (emphasis added). I adhere to my view that the Double Jeopardy Clause of the Fifth Amendment requires that, except in extremely limited circumstances not present here, “all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction” be prosecuted in one proceeding. Ashe v. Swenson, 397 U. S. 436, 453-454 (1970) (Brennan, J., concurring). See also Thompson v. Oklahoma, 429 U. S. 1053 (1977) (Brennan, J., dissenting), and cases collected therein.

In the instant case, the Federal Government in the Southern District marshaled an array of evidence to demonstrate that currency out of the country, and it used these episodes along with evidence of other conspiratorial acts to obtain Borchardt’s conviction for conspiring to violate, inter alia, 21 U. S. C. § 952(a) (importation of controlled substances). Thereafter, in the Northern District trial, the Government again marshaled its array of evidence to demonstrate again that Borchardt had participated in the two smuggling episodes and that he had done so for the purpose of violating 21 U. S. C. § 952(a). Thus the Government twice prosecuted Borchardt for the identical criminal acts, which in my view was in palpable violation of the Double Jeopardy Clause.

Ill

The Government appears to concede that the second prosecution would normally violate, at the very least, its Petite policy of trying all related offenses in a single trial. Brief in Opposition 4-5; see Petite v. United States, 361 U. S. 529 (1960). But it insists that such joinder was impossible here because neither the Southern District nor the Northern District had venue to try all the offenses. Specifically, the Government contends that the two substantive offenses of importation and possession with intent to distribute, which grew out of the presence of the marihuana on Southern District soil after the plane crash on February 22, had to be tried in the Southern District. On the other hand, because the currency offenses occurred at Borchardt’s port of departure at the Dallas-Fort Worth Airport, see n. 2, supra, only the Northern District had venue to try these crimes. The Government concedes that Borchardt could have been tried on the all-embracing conspiracy charges in the Northern District, but because he already “necessarily faced two trials in separate districts,” it contends, there was no logical reason why the conspiracy charges had to be tried with the currency charges rather than with the possession charges. Accepting arguendo the Government’s contention that venue for the possession and currency offenses initially rested in separate districts, this analysis nevertheless fails for two reasons.

A

First, that Borchardt already faced trial in the Southern District on the substantive possession charges could not serve to justify separate trials on the conspiracy and currency charges. The Double Jeopardy Clause does not of course shield a defendant against separate trials for separate criminal acts, but only against separate trials growing out of the same criminal acts. Prosecution for the substantive possession charges alone would not have barred a subsequent prosecution on the currency charges, because the two crimes were based on different episodes. The former charges did not rest in any way on Borchardt’s earlier smuggling of money out of the country, but rather on Borchardt’s constructive possession of the marihuana on the crashed plane, i. e.; on evidence that Borchardt had loaded the plane and thereby intended to exercise dominion and control over its cargo. Sée n. 5, supra.

The conspiracy and currency prosecutions, on the other hand, were largely of a piece because they rested on the same criminal episodes. The Government’s decision to prosecute Borchardt for conspiracy based in part on his acts of smuggling currency necessarily triggered Borchardt’s Fifth Amendment right not to be put into jeopardy again, on whatever theory of liability, for his commission "of those same acts. As the Government concedes, the conspiracy and currency charges easily could have been consolidated in the Northern District. Having made its decision to prosecute Borchardt’s acts of smuggling currency to obtain the conspiracy conviction in the Southern District, however, the Government should not now be permitted to bootstrap its way around the Double Jeopardy Clause by pointing to the pendency of other charges in the Southern District that bore no double jeopardy relation to the currency charges.

Petite v. United States, supra, is squarely on point. There Petite had been convicted in the Eastern District of Pennsylvania for conspiring to make false statements to Government agencies on two occasions, once in Philadelphia arid once in Baltimore. Petite subsequently was convicted in the District of Maryland on substantive charges growing out of the same Baltimore agency proceedings. We remanded the case to the Court of Appeals to vacate the judgment after the Government candidly conceded that the second trial violated the Government’s own policy against repetitious prosecutions for crimes growing out of a single transaction. Id., at 530-531. Although the Court avoided the constitutional issue, three of us went on to emphasize that “the Double Jeopardy Clause of the Fifth Amendment was an insurmountable barrier to this second prosecution.” Id., at 533 (Brennan, J., joined by Black and Douglas, JJ.).

B

Even if the conspiracy charges could only have been brought in the Southern District, however, I believe that the Government fundamentally misperceives the relationship between a defendant’s venue rights and his double jeopardy rights. The Sixth Amendment guarantees that an accused “shall enjoy the right to a [in the] district wherein the crime shall have been committed.” Because the venue provision was designed primarily to safeguard a defendant’s rights, it is one that a defendant may waive in appropriate circumstances. See Singer v. United States, 380 U. S. 24, 35 (1965); see also Fed. Rule Crim. Proc. 21(b) (“For the convenience of parties and witnesses, and in the interest of justice, the court upon motion of the defendant may transfer the proceeding as to him or any one or more of the counts thereof to another district”).

If the Government simultaneously had secured indictments against Borchardt in the Northern and Southern Districts, he could have waived venue in one of the districts pursuant to Rule 21(b), obtained a joinder of the two prosecutions, and thereby vindicated his right not to be tried twice for the same criminal episodes. Borchardt was not accorded this opportunity, however, because the United States Attorney for the Northern District of Texas waited until several months after Borchardt’s conviction in the Southern District before bringing the currency charges. The Government has suggested no reason for this delay.

The Double Jeopardy Clause guarantees that all charges arising out of the same criminal act will be brought both at the same time and in the same proceeding. In some situations the Sixth Amendment’s venue safeguards will prevent the Government from bringing all charges in one district, but this should not serve to excuse the Government’s obligation under the Fifth Amendment to bring the charges at the same time. The defendant at the very least is entitled to be “informed at one time of all the charges on which he will actually be tried,” Ashe v. Swenson, 397 U. S., at 455, n. 11 (Brennan, J., concurring), so that he has a full opportunity to choose between his right to venue in separate districts and his right to a single trial on all related charges. The Government’s alternative argument — that a federal prosecutor may in his own discretion choose to use a defendant’s venue rights to defeat the double jeopardy safeguard — lacks any principled foundation. For whether a defendant is tried successively for the same acts in the same judicial district or in separate districts, “[rjepetitive harassment in such a manner goes to the heart of the Fifth Amendment protection.” Abbate v. United States, 359 U. S., at 200 (separate opinion of Brennan, J.). Whether they occur in one district or in several districts, repetitious prosecutions for the same acts enable the Government to “wear the accused out by a multitude of cases with accumulated trials.” Palko v. Connecticut, 302 U. S. 319, 328 (1937). Both sorts of prosecutions enable the Government “with all its resources and power ... 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 . . . .” Green v. United States, 355 U. S. 184, 187 (1957). Both should be subject to equal condemnation under the Double Jeopardy Clause. of Texas and the

It might be argued that the Southern District of Texas and the Northern District of Texas are separate judicial districts, and that the Double Jeopardy Clause should not extend to require coordination among federal prosecutors acting independently in separate districts. This objection, grounded on notions of bureaucratic autonomy, is thoroughly unpersuasive. The federal districts are not separate sovereign entities, but merely adjuncts of one federal sovereign. We repeatedly have held that a sovereign government may not structure its judicial and prosecutorial systems so as otherwise to defeat the safeguard against double jeopardy. See, e. g., Robinson v. Neil, 409 U. S. 505 (1973) (rejecting “dual sovereignty” doctrine with respect to separate state and municipal prosecutions); Waller v. Florida, 397 U. S. 387 (1970) (same); Grafton v. United States, 206 U. S. 333 (1907) (same with respect to separate federal and territorial prosecutions). Similarly, where different prosecutions grow out of the same criminal act and would therefore otherwise be subject to the Double Jeopardy Clause, a sovereign should not be able to regulate the timing of those prosecutions in different districts so as to defeat a defendant’s right to seek a single consolidated trial. federal

Such a rule would not impose undue ecutors. It would merely require that the Government coordinate its prosecutions of individuals in different districts in such a way that the individuals were not forced to travel from district to district defending against “[rjepetitive harassment,” Abbate v. United States, supra, at 200 (separate opinion of Brennan, J.), for the same criminal acts. Whether it results from an intent to harass, simple caprice, or a breakdown in communications among federal prosecutors, the Government’s failure to coordinate its caseload cannot be allowed to undermine a defendant’s ability to avoid double jeopardy.

Accordingly, this case presents the question whether we should hold that where multiple charges would otherwise be required to be brought in a single proceeding but for problems of venue among the judicial districts of one sovereign government, the Double Jeopardy Clause nevertheless requires the sovereign to bring all such charges within a reasonable time of each other. In this way, the defendant would be able to seek to transfer the proceedings against him and to consolidate all charges for one trial, thereby vindicating his right under the Double Jeopardy Clause to be secure from successive prosecutions for the same criminal conduct.

In the instant case, Ira Borchardt was prosecuted in one Dis-. trict for conspiracy to import marihuana, largely on the basis of his efforts to smuggle money out of the country to facilitate the purchase and importation of the substance. Immediately thereafter he was prosecuted again, this time for currency violations. Once again, Borchardt’s conviction was grounded on his efforts to smuggle currency out of the country in furtherance of the conspiracy. But for asserted problems of venue, the Government should have been required to bring these charges in a single indictment. See Part II, supra. For whatever reason, the Government instead timed its interdistrict prosecutions of Borchardt so as to deny him his right to seek a consolidation of these charges under Rule 21(b), thereby stripping him of the only effective means to invoke his rights under the Double Jeopardy Clause and to seek to have all charges arising out of the currency smuggling resolved in a single trial.

Accordingly, I would grant the petition for certiorari.

       Borchardt also was charged with two cocaine offenses, and the jury ultimately convicted him of one count of possessing cocaine. He received a 2-year sentence for this offense, to be served consecutively to the currency sentences discussed infra, at 940. The cocaine conviction is not infirm on double jeopardy grounds. Although Borchardt argues that the cocaine and' marihuana offenses were but segments of an overarching continuing conspiracy to import drugs, and therefore should have been tried together, the Government’s proof on the cocaine charge rested on entirely different overt acts from the marihuana and currency charges. 2

       Later in 1982, this provision was amended and recodified at 31 U. S. C. § 5322(b), which now prohibits the willful failure to file the required reports “while violating another law of the United States or as part of a pattern of illegal activity involving transactions of more than $100,000 in a 12-month period . . . .” Borchardt’s duty to file a currency report arose from 31 U. S. C. § 1101(a)(1)(A) (1976 ed.), which provided that anyone who knowingly “transports or causes to be transported monetary instruments . . . from any place within the United States to or through any place outside the United States, ... in an amount exceeding $5,000 on any one occasion” must file a report thereof. This provision has been recodified without substantive change at 31 U. S. C. § 5316. See also 31 CFR § 103.25(b) (1984) (providing for the filing of such reports “with the Customs officer in charge at any Customs port of. . . departure”).

       A majority of the Court continues to apply the “same evidence” test in determining whether successive prosecutions are constitutional, tempered only by application of the collateral-estoppel doctrine. See, e. g., Ashe v. Swenson, 397 U. S. 436 (1970). Under this approach, the inquiry “is whether each [statutory] provision requires proof of a fact which the other does not2.” Blockburger v. United States, 284 U. S. 299, 304 (1932). The constitutionality of Borchardt’s currency conviction is highly suspect even under this line of analysis. Borchardt was convicted in the Southern District of both importing and conspiring to import marihuana in violation of, inter alia, 21 U. S. C. § 952(a). He thereafter was convicted in the Northern District of violating 31 U. S. C. § 1059 (1976 ed.) on the basis of proof that he (1) willfully failed to file the required currency reports, in furtherance of (2) importing marihuana in violation of 21 U. S. C. § 952(a). The second conviction rested on an element not necessary to the first conviction (willful failure to file reports), but the first conviction did not rest on any elements that the Government did not also have to prove the second time around. “[A] person [who] has been tried and convicted for a crime which has various incidents included in it, . . . cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence.” In re Nielsen, 131 U. S. 176, 188 (1889). The reverse is of course also true: a person who has been tried for an offense consisting of certain elements cannot thereafter be tried for an offense consisting of the same elements plus others. See, e. g., Illinois v. Vitale, 447 U. S. 410, 421 (1980); Brown v. Ohio, 432 U. S. 161 (1977).
      The Government contends, however, that the “same evidence” test is not met here because the underlying felony required for conviction under 31 U. S. C. § 1059 (1976 ed.) could have been any one of numerous felonies other than the importation of marihuana. “The various elements of the marijuana charges . . . are completely unrelated to the currency reporting offense, which could be established if the related crime were arson, bribery, extortion, fraud, or any number of other crimes.” Brief in Opposition 5. We rejected just such a facile construction of felony-murder statutes in Harris v. Oklahoma, 433 U. S. 682 (1977); see also Illinois v. Vitale, supra, at 420-421, and should do so here as well.

       The Government has long represented to the Court that it adheres to a policy that “several offenses arising out of a single transaction should be alleged and tried together and should not be made the basis of multiple prosecutions, a policy dictated by considerations both of fairness to defendants and of efficient and orderly law enforcement.” Petite v. United States, 361 U. S., at 530.

       The Government suggests only that it is “doubtful’,’ whether the tion and possession charges arising out of the plane crash could have been brought in the Northern District. Brief in Opposition 5. The record, however, appears to indicate otherwise. Borchardt did not accompany the plane from Mexico, so he never actually possessed marihuana in the Southern District. The Government’s case rested instead on constructive possession and importation. As the Fifth Circuit summarized, “Borchardt’s participation in the venture in loading the marijuana and the calls to him and his activities after the crash would permit the jury to infer that he had constructive possession of the marijuana.” United States v. Borchardt, 698 F. 2d 697, 703 (1983) (emphasis added). The record shows that these postcrash activities occurred in the Northern District of Texas. See 1 Record 6. On the Government’s own evidence, Borchardt took steps to retain dominion and control over the marihuana while he was in the Northern District, so venue would appear to lie in that District for the continuing-offense possession and importation charges. See, e. g., United States v. Brantley, 733 F. 2d 1429, 1433-1435 (CA11 1984); United States v. Brunty, 701 F. 2d 1375, 1382 (CA11), cert. denied, 464 U. S. 848 (1983). See also 18 U. S. C. § 3237(a) (“[A]ny offense . . . may be inquired of and prosecuted in any district in which such offense was begun, continued, or completed”).

       Of course, if the Government in Petite had tried the conspiracy charges in the District of Maryland and had relied on the Philadelphia false statements to obtain the conspiracy conviction, it could not thereafter have prosecuted Petite in the Eastern District of Pennsylvania for making the false Philadelphia statements. Similarly, if the Government in the instant case had prosecuted the conspiracy and currency offenses together in the Northern District of Texas and had relied on the February 22 importation and possession outside of Raymondville to obtain the conspiracy conviction, it could not thereafter have prosecuted Borchardt for the substantive offenses in the Southern District. It might be argued that these results unjustly prevent the Government from fully presenting all evidence of a conspiracy when venue problems preclude it from joining all underlying substantive offenses to the conspiracy prosecution; in such situations, it would be argued, the Government must choose between the equally unattractive options of (a) presenting evidence of all the underlying acts in the conspiracy prosecution, thereby forfeiting the opportunity to secure a subsequent conviction on the underlying substantive offense in a district with proper venue, or (b) withholding evidence of certain acts from the conspiracy prosecution, thereby preserving a subsequent prosecution for the underlying offense but risking a verdict of not guilty on the conspiracy charge for lack of sufficient evidence. The procedure outlined in Part III-B, infra, however, provides a full and efficient method for the Government to preserve its opportunity to prosecute for all offenses and to present its full array of evidence.

       “The provision for trial in the vicinity of the crime is a safeguard against the unfairness and hardship involved when an accused is prosecuted in a remote place.” United States v. Cores, 356 U. S. 405, 407 (1958)8

       All of the evidence the Government relied upon in the second trial was available at the time of the first indictment, as witnessed by the Government’s use of the currency episodes to prove the importation conspiracy. Thus this is not a case where, despite diligent efforts, the Government had not assembled the evidence necessary to prove its second case at the time the first was initiated. See, e. g., Diaz v. United States, 223 U. S. 442, 448-449 (1912).

       It is of course difficult for the Government to coordinate the bringing of charges in different districts with chronometrie precision. Delays might result, for example, from backlog, from the differing schedules of grand juries in separate districts, and so forth. Even after two prosecutions are brought, further delays might sometimes be encountered in transferring and consolidating the cases for trial. Some room for reasonable flexibility should therefore be accorded the Government, and in instances of such reasonable delay a defendant might have to postpone his exercise of speedy-trial rights to accommodate the joinder of all offenses against him in a single proceeding. Requiring such accommodation is reasonable. Under the federal Speedy Trial Act, for example, courts may exclude in computing the time within which a trial must commence any delay resulting from, inter alia, “any proceeding relating to the transfer of a case . . . from another district under the Federal Rules of Criminal Procedure” and any “continuance granted by any judge ... at the request of the defendant or his counsel.” 18 U. S. C. §§ 3161(h)(1)(G), 3161(h)(8)(A). In all instances the inquiry must be whether the delay is reasonable and whether the Government has so coordinated its interdistrict prosecutions as to permit the defendant meaningfully to exercise his right to seek a transfer and joinder of charges in one proceeding.

       Federal Rule of Criminal Procedure 21(b) gives the district court discretion whether to permit a transfer to another district. Where a defendant seeks a transfer to protect against double jeopardy, his interest in securing a transfer would approach its zenith and the district court’s discretion accordingly would be narrowly circumscribed. There is no need here to decide whether the “interests of justice” could ever lead a court in the reasonable exercise of its discretion to deny a transfer in such circumstances. Even where there is room for discretion, however, it is important in the context of the Double Jeopardy Clause that "the decision on whether charges are to be tried jointly or separately . . . rest with the judge rather than the prosecutor.” Ashe v. Swenson, 397 U. S., at 455, n. 11 (Brennan, J., concurring) (re discretionary exercise of Rule 14 authority).


text:
    No. 83-2139.
    No. 84-25.
    Rockefeller, Governor of West Virginia v. Bever et al.; and Gilbertson et al. v. Bever et al.
   C. A. 4th Cir. Certiorari denied.

Justice Blackmun and Justice Powell would grant certiorari. Justice O’Connor took no part in the consideration or decision of these petitions.

Reported below: 724 F. 2d 1083.