source: Caselaw Access Project

author: Justice Marshall

license: Public Domain

text:
    UNITED STATES v. MILLER
    No. 83-1750.
    Argued January 16, 1985
    Decided April 1, 1985

      Marshall, J., delivered the opinion of the Court, in which all other Members joined, except Powell, J., who took no part in the consideration or decision of the ease.

      Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General Trott, Carolyn F. Corwin, and Vincent L. Gambale.

      JerroldM. Ladar, by appointment of the Court, 469 U. S. 1103, argued the cause and filed a brief for respondent.
   Justice Marshall

delivered the opinion of the Court.

The issue presented is whether the Fifth Amendment’s grand jury guarantee is violated when a defendant is tried under an indictment that alleges a certain fraudulent scheme but is convicted based on trial proof that supports only a significantly narrower and more limited, though included, fraudulent scheme.

A grand jury in the Northern District of California returned an indictment charging respondent Miller with three counts of mail fraud in violation of 18 U. S. C. § 1341. After the Government moved to dismiss the third count, Miller was tried before a jury and convicted of the remaining two. He appealed asserting that there had been a fatal variance between the “scheme and artifice” to defraud charged in the indictment and that which the Government proved at trial. The Court of Appeals for the Ninth Circuit agreed and vacated the judgment of conviction. 715 F. 2d 1360 (1983), modified, 728 F. 2d 1269 (1984). We granted certiorari, 469 U. S. 814 (1984), and reverse.

I

A

The indictment had charged Miller with various fraudulent acts in connection with a burglary at his place of business. Miller allegedly had defrauded his insurer both by consenting to the burglary in advance and by lying to the insurer about the value of his loss. The trial proof, however, concerned only the latter allegation, focusing on whether, prior to the burglary, Miller actually had possessed all the property that he later claimed was taken. This proof was clearly sufficient to support a jury finding that Miller’s claim to his insurer had grossly inflated the value of any actual loss.

The Government moved to strike the part of the indictment that alleged prior knowledge of the burglary, and it correctly argued that even without that allegation the indictment still made out a violation of §1341. Respondent’s counsel opposed the change, and at his urging the entire indictment was sent to the jury. The jury found Miller guilty, and respondent appealed on the basis that the trial proof had fatally varied from the scheme alleged in the indictment.

Agreeing that Miller’s Fifth Amendment right to be tried only on a grand jury indictment had been violated, the Court of Appeals vacated the conviction. It succinctly stated its rationale:

“The grand jury may well have declined to indict Miller simply on the basis of his exaggeration of the amount of his claimed loss. ... In fact it is quite possible that the grand jury would have been unwilling or unable to return an indictment based solely on Miller’s exaggeration of the amount of his claimed loss even though it had concluded that an indictment could be returned based on the overall scheme involving a use of the mail caused by Miller’s knowing consent to the burglary.” 715 F. 2d, at 1362-1363.

B

Miller’s indictment properly alleged violations of 18 U. S. C. § 1341, and it fully and clearly set forth a number of ways in which the acts alleged constituted violations. The facts proved at trial clearly conformed to one of the theories of the offense contained within that indictment, for the indictment gave Miller clear notice that he would have to defend against an allegation that he “‘well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance Company.’” 715 F. 2d, at 1361-1362 (quoting indictment). Competent defense counsel certainly should have been on notice that that offense was charged and would need to be defended against. Accordingly, there can be no showing here that Miller was prejudicially surprised at trial by the absence of proof concerning his alleged complicity in the burglary; nor can there be a showing that the variance prejudiced the fairness of respondent’s trial in any other way. Cf. Kotteakos v. United States, 328 U. S. 750 (1946). See also Berger v. United States, 295 U. S. 78, 83 (1935). Cf. also United States v. Ballard, 322 U. S. 78, 91 (1944) (Stone, C. J., dissenting). The indictment was also sufficient to allow Miller to plead it in the future as a bar to subsequent prosecutions. Therefore, none of these “notice” related concerns— which of course are among the important concerns underlying the requirement that criminal charges be set out in an indictment — would support the result of the Court of Appeals. See Russell v. United States, 369 U. S. 749, 763-764 (1962).

The Court of Appeals did not disagree, but instead argued that Miller had been prejudiced in his right to be free from a trial for any offense other than that alleged in the grand jury’s indictment. 728 F. 2d, at 1270. It reasoned that a grand jury’s willingness to indict an individual for participation in a broad criminal plan does not establish that the same grand jury would have indicted the individual for participating in a substantially narrower, even if wholly included, criminal plan. 715 F. 2d, at 1362-1363. Relying on the Fifth Amendment’s grand jury guarantee, the Court of Appeals concluded that a conviction could not stand where the trial proof corresponded to a fraudulent scheme much narrower than, though included within, the scheme that the grand jury had alleged. The Court of Appeals cited two prior decisions of this Court that emphasized the right of an accused to be tried only on charges that had in fact been passed on by a grand jury; Ibid, (citing Stirone v. United States, 361 U. S. 212 (1960), and Ex parte Bain, 121 U. S. 1 (1887)). Cf. United States v. Mastelotto, 717 F. 2d 1238, 1248-1250 (CA91983) (similarly relying on Stirone and Bain).

II

The Government correctly argues that the Court of Appeals’ result conflicts with a number of this Court’s prior decisions interpreting the Fifth Amendment’s Grand Jury Clause.. The Court has long recognized that an indictment may charge numerous offenses or the commission of any one offense in several ways. As long as the crime and the elements of the offense that sustain the conviction are fully and clearly set out in the indictment, the right to a grand jury is not normally violated by the fact that the indictment alleges more crimes or other means of committing the same crime. See, e. g., Ford v. United States, 273 U. S. 593 (1927); Salinger v. United States, 272 U. S. 542 (1926). See also Berger v. United States, supra; Hall v. United States, 168 U. S. 632, 638-640 (1898). Indeed, a number of longstanding doctrines of criminal procedure are premised on the notion that each offense whose elements are fully set out in an indictment can independently sustain a conviction. See, e. g., Turner v. United States, 396 U. S. 398, 420 (1970) (“[W]hen a jury returns a guilty verdict on an indictment charging several acts in the conjunctive, . . . the verdict stands if the evidence is sufficient with respect to any one of the acts charged”); Crain v. United States, 162 U. S. 625, 634-636 (1896) (indictment count that alleges in the conjunctive a number of means of committing a crime can support a conviction if any of the alleged means are proved); Dealy v. United States, 152 U. S. 539, 542 (1894) (prosecution’s failure to prosecute certain counts of an indictment does not affect the validity of the indictment as to the other counts).

A review of prior cases allowing convictions to stand in the face of variances between the indictment and proof makes the Court of Appeals’ error clear. Convictions generally have been sustained as long as the proof upon which they are based corresponds to an offense that was clearly set out in the indictment. A part of the indictment unnecessary to and independent of the allegations of the offense proved may normally be treated as “a useless averment” that “may be ignored.” Ford v. United States, 273 U. S., at 602. In Ford, for example, an indictment charged a defendant with conspiring to import liquor in violation of various federal laws and in violation of a treaty. “The validity of the indictment [was] attacked . . . because it charge[d] that the conspiracy was to violate the treaty, although the treaty create[d] no offense against the law of the United States.” Ibid. Although the grand jury had included the treaty allegation as part of the indictment, this Court upheld the conviction because “that part of the indictment [was] merely surplusage and may be rejected.” Ibid.

This treatment of allegations independent of and unnecessary to the offense on which a conviction ultimately rests has not been confined to allegations that, like those in Ford, would have had no legal relevance if proved. In Salinger v. United States, supra, for example, the Court was presented with facts quite similar to the instant case. A grand jury charged Salinger with mail fraud in an indictment containing several counts, “[a]ll relating] to the same scheme to defraud, but each charging] a distinct use of the mail for the purpose of executing the scheme.” Id., at 546. As was the case with Miller, Salinger’s “scheme to defraud as set forth in the indictment. . . comprehended several relatively distinct plans for fleecing intended victims.” Id., at 548. Because the evidence only sustained the charge as to one of the plans, the trial judge withdrew from the jury those portions of the indictment that related to all other plans. Salinger argued then, just as Miller argues now, that the variance between the broad allegations in the indictment and the narrower proof at trial violated his right to have had a grand jury screen any alleged offenses upon which he might be convicted at trial.

This Court unanimously rejected Salinger’s argument on the ground that the offense proved was fully contained within the indictment. Nothing had been added to the indictment which, in the Court’s view, “remained just as it was returned by the grand jury.” Ibid. “[T]he trial was on the charge preferred in it and not on a modified charge,” ibid., and there was thus “not even remotely an infraction of the constitutional provision that ‘no person shall be held to answer for a capital or otherwise infamous crime unless on a presentment or indictment of a grand jury.’” Id., at 549. See also Berger v. United States, 295 U. S. 78 (1935); Goto v. Lane, 265 U. S. 393 (1924); Hall v. United States, supra, at 638-640.

The result reached by the Court of Appeals thus conflicts with the results reached by this Court in such cases as Salinger and Ford. See also Hall v. United States, supra, at 638-640; Crain v. United States, supra, at 634-636.

I — I HH HH

The Court of Appeals principally relied on this Court s decision in Stirone v. United States, 361 U. S. 212 (1960), to support its conclusion that the Fifth Amendment’s grand jury right is violated by a conviction for a criminal plan narrower than, but fully included within, the plan set forth in the indictment. Stirone, however, stands for a very different proposition. In Stirone the offense proved at trial was not fully contained in the indictment, for trial evidence had “amended” the indictment by broadening the possible bases for conviction from that which appeared in the indictment. Stirone was thus wholly unlike the cases discussed in Part II, supra, and unlike respondent’s case, all of which involve trial evidence that narrowed the indictment’s charges without adding any new offenses. As the Stirone Court said, the issue was “whether [Stirone] was convicted of an offense not charged in the indictment.” 361 U. S., at 213 (emphasis added).

Stirone, a union official, was indicted for and convicted of unlawfully interfering with interstate commerce in violation of the Hobbs Act. 18 U. S. C. § 1951. More specifically, the indictment charged that he had engaged in extortion that obstructed shipments of sand from outside Pennsylvania into that State, where it was to be used in the construction of a steel mill. At trial, however, the prosecution’s proof of the required interference with interstate commerce went beyond the allegation of obstructed sand shipments. The prosecutor also attempted to prove that Stirone had obstructed the steel mill’s eventual export of steel to surrounding States. Because the conviction might have been based on the evidence of obstructed steel exports, an element of an offense not alleged in the indictment, a unanimous Court held that the indictment had been unconstitutionally “broadened.”

“The right to have the grand jury make the charge on its own judgment is a substantial right which cannot be taken away with or without court amendment. Here, ... we cannot know whether the grand jury would have included in its indictment a charge that commerce in steel from a nonexistent steel mill had been interfered with. Yet because of the court’s admission of evidence and under its charge this might have been the basis upon which the trial jury convicted petitioner. If so, he was convicted on a charge the grand jury never made against him. This was fatal error.” 361 U. S., at 218-219.

The Court contrasted Stirone’s case with cases like Ford v. United States. See 361 U. S., at 217. As we discussed in Part II, supra, in Ford the Court had refused to invalidate a conviction because of variances between the indictment and the narrower trial proof. The Stirone Court declared that, unlike that sort of variance, “the addition charging interference with steel exports [in Stirone was] neither trivial, useless, nor innocuous. While there was a variance in the sense of a variation between pleading and proof, that variation [had in Stirone] destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury. Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error.” 361 U. S., at 217 (citations omitted). Accord, Russell v. United States, 369 U. S., at 770-771 (following Stirone).

Miller has shown no deprivation of his “substantial right to be tried only on charges presented in an indictment returned by a grand jury.” 361 U. S., at 217. In contrast to Stirone, Miller was tried on an indictment that clearly set out the offense for which he was ultimately convicted. His complaint is not that the indictment failed to charge the offense for which he was convicted, but that the indictment charged more than was necessary.

IV

The one decision of this Court that does offer some support to the Court of Appeals’ result is Ex parte Bain, 121 U. S. 1 (1887), for there the Court treated as an unconstitutional “amendment” the deletion from an indictment of allegations that would not have been necessary to prove the offense. This deletion, in the Court’s view, did constitute a compromise of the defendant’s right to be tried only on a grand jury’s indictment.

Bain was a bank cashier who had been indicted for including false statements in a report required to be made to the Comptroller of the Currency. The indictment charged that when Bain filed these required reports, he “did then and there well know and believe the said report and statement to be false to the extent and in the mode and manner above set forth; and [he] made said false statement and report in manner and form as above set forth with intent to deceive the Comptroller of the Currency and the agent appointed to examine the affairs of said [banking] association . . . .” Id., at 4. The relevant statute made it a criminal offense to file “ ‘any false entry in any book, report, or statement. . . with intent... to deceive . . . any agent appointed to examine the affairs of any such association ....”’ Id., at 3 (quoting Rev. Stat. §5209). Thus under the terms of the statute, there was no need to charge Bain with intending to deceive “the Comptroller of the Currency.” An intent to deceive the agent appointed to examine the reports was all that was necessary to prove the offense.

Under later cases, such as Ford and Salinger, the presence of such surplusage in the indictment would not invalidate a conviction as long as the necessary intent was also alleged and proved. But in Bain the trial court sustained Bain’s demurrer to the indictment. After sustaining the demurrer, however, the court granted a motion by the Government “that the indictment be amended by strildng out the words ‘the Comptroller of the Currency and.’” 121 U. S., at 5. Bain was then required to plead to the amended indictment, and was tried and convicted under that indictment. Ibid. This Court granted a writ of habeas corpus on the ground that Bain’s Fifth Amendment right to stand trial only on an indictment returned by a grand jury had been violated. The opinion reasoned that a court could not, consistent with the Fifth Amendment, assume that the narrower indictment would have been returned by the grand jury that returned the broader one.

Bain may best be understood in terms of two distinct propositions. Most generally, Bain stands for the proposition that a conviction cannot stand if based on an offense that is different from that alleged in the grand jury’s indictment. But more specifically, Bain can support the proposition that the striking out of parts of an indictment invalidates the whole of the indictment, for a court cannot speculate as to whether the grand jury had meant for any remaining offense to stand independently, even if that remaining offense clearly was included in the original text. Under this latter proposition, the narrowing of an indictment is no different from the adding of a new allegation that had never been considered by the grand jury; both are treated as “amendments” that alter the nature of the offense charged. In evaluating the relevance of Bain to the instant case, it is necessary to examine these two aspects of Bain separately, for the Court has treated these two propositions quite differently in the years since Bain.

The proposition that a defendant cannot be convicted of an offense different from that which was included in the indictment was broadly declared in Bain:

“If it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes, the great importance which the common law attaches to an indictment by a grand jury, as a prerequisite to a prisoner’s trial for a crime, and without which the Constitution says ‘no person shall be held to answer,’ may be frittered away until its value is almost destroyed.” Id., at 10.

This aspect of Bain has been reaffirmed in a number of subsequent cases. See, e. g., United States v. Norris, 281 U. S. 619, 622 (1930) (citing Bain for the rule that “nothing can be added to an indictment without the concurrence of the grand jury by which the bill was found”). The most important reaffirmation, of course, was Stirone. See Part III, supra. In Stirone, the Court’s unanimous opinion extensively relied on Bain for the proposition that “a court cannot permit a defendant to be tried on charges that are not made in the indictment against him,” 361 U. S., at 217, and therefore that “after an indictment has been returned its charges may not be broadened through amendment except by the grand jury itself.” Id., at 215-216. See also Russell v. United States, 369 U. S., at 770 (citing Bain for the “settled rule in the federal courts that an indictment may not be amended except by resubmission to the grand jury, unless the change is merely a matter of form”).

But this aspect of Bain gives no support to Miller in this case, see Part III, supra, for the offense that formed the basis of Miller’s conviction was clearly and fully set out in the indictment. Miller must instead rest on the second, and more specific, proposition found in Bain, that a narrowing of the indictment constitutes an amendment that renders the indictment void.

As is clear from the discussion of cases in Part II, supra, this second proposition did not long survive Bain. Indeed, when defendants have sought to rely on Bain for this point, this Court has limited or distinguished the case, sustaining convictions where courts had withdrawn or ignored independent and unnecessary allegations in the indictments. See, e. g., Ford v. United States, 273 U. S., at 602 (distinguishing Bain)] Salinger v. United States, 272 U. S., at 549 (same). Modern criminal law has generally accepted that an indictment will support each offense contained within it. To the extent Bain stands for the proposition that it constitutes an unconstitutional amendment to drop from an indictment those allegations that are unnecessary to an offense that is clearly contained within it, that case has simply not survived. To avoid further confusion, we now explicitly reject that proposition.

Rejecting this aspect of Bain is hardly a radical step, however, given that in the years since Bain this Court has largely ignored this element of the case. Moreover, in rejecting this proposition’s continued validity, we do not limit Bain’s more general proposition concerning the impermissi-bility of actual additions to the offenses alleged in an indictment, a proposition we have repeatedly reaffirmed. See Part III, supra; text accompanying n. 7, supra. That our holding today is fully consistent with prior legal understanding is apparent from an examination of the state of the law, as seen by Chief Justice Stone, more than 40 years ago:

“An indictment is amended when it is so altered as to charge a different offense from that found by the grand jury. Ex parte Bain, 121 U. S. 1. But here there was no alteration of the indictment, Salinger v. United States, 272 U. S. 542, 549, nor did the court’s action, in effect, add anything to it by submitting to the jury matters which it did not charge. United States v. Norris, 281 U. S. 619, 622. In Salinger v. United States, supra, 548-9, we explicitly held that where an indictment charges several offenses, or the commission of one offense in several ways, the withdrawal from the jury’s consideration of one offense or one alleged method of committing it does not constitute a forbidden amendment of the indictment. See also Goto v. Lane, 265 U. S. 393, 402-3; Ford v. United States, 273 U. S. 593, 602. Were the rule otherwise the common practice of withdrawing from the jury’s consideration one count of an indictment while submitting others for its verdict, sustained in Dealy v. United States, 152 U. S. 539, 542, would be a fatal error.” United States v. Ballard, 322 U. S., at 90-91 (dissenting).

V

In light of the foregoing, the proper disposition of this case is clear. The variance complained of added nothing new to the grand jury’s indictment and constituted no broadening. As in Salinger and Ford, what was removed from the case was in no way essential to the offense on which the jury convicted. We therefore disagree with the Court of Appeals on the issue of whether Miller has shown any compromise of his right to be tried only on offenses for which a grand jury has returned an indictment. No such compromise has been shown. The judgment of the Court of Appeals is accordingly reversed.

It is so ordered.

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

       The Grand Jury Clause reads: “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.”

       The scheme to defraud was set out in paragraphs 1 through 7 of count one of the indictment:
      ‘“1. Beginning on or about July 2, 1981 and continuing to on or about October 26, 1981, in the City and County of San Francisco, in the State and Northern District of California, JAMES RUAL MILLER, defendant herein, being the President of San Francisco Scrap Metal, Inc., did devise and intend to devise a scheme and artifice to defraud and to obtain money by means of false and fraudulent pretenses and representations from Aetna Insurance Company by making a fraudulent insurance claim for a loss due to an alleged burglary at San Francisco Scrap Metal.
      “ ‘2. At the time such pretenses and representations were made, defendant well knew them to be false. The scheme, so devised and intended to be devised, was implemented in substance as follows:
      “ ‘3. It was a part of the scheme that on or about July 2, 1981, defendant would and did increase his insurance policy coverage from $50,000 to $150,000 to be in effect for a two week period ending July 15, 1981.
      “ ‘4. It was a further part of the scheme that on or about July 15, 1981, defendant would and did report that a burglary had occurred at San Francisco Scrap Metal during the evening of July 14, 1981.
      “ ‘5. It was a further part of the scheme that defendant would and did claim to have lost 210,170 pounds of copper wire, worth $123,500 and two trucks during the alleged burglary.

        “ ‘6. It was a further part of the scheme that defendant well knew that the alleged burglary was committed with his knowledge and consent for the purpose of obtaining the insurance proceeds.
      “ ‘7. It was a further part of the scheme that defendant well knew that the amount of copper claimed to have been taken during the alleged burglary was grossly inflated for the purpose of fraudulently obtaining $150,000 from Aetna Insurance company.’” 715 F. 2d 1360, 1361-1362 (1983).
      Each count in the indictment was based on this same scheme to defraud, and these paragraphs were included by reference in the other two counts. The separate counts reflected only separate uses of the mails.

       The facts, as stipulated to by the parties, included the following: The respondent, James Rual Miller, was the owner of San Francisco Scrap Metals, Inc., a company that regularly purchased scrap wire, and stripped, baled, and resold it. On the morning of July 15, 1981, Miller reported that his business had been burglarized the previous evening and that two trucks and 201,000 pounds of copper wire had been stolen. On July 20, 1981, Miller reported to the insurance adjuster that the missing copper had been purchased from L. K. Comstock, Inc., and Kingston Electric. Kingston Electric had indeed sold a quantity of copper to San Francisco Scrap Metals, but San Francisco Scrap Metals had resold a similar quantity to Battery Salvage Company. Miller claimed that the copper sold to Battery Salvage had been purchased from another company. But in fact, neither that other company nor L. K. Comstock had sold San Francisco Scrap Metals the copper claimed to have been purchased. Miller sent his proof of loss through the United States mail and received $100,000. Aetna sent one $50,000 check to Miller through the mail. Id., at 1361.

       Title 18 U. S. C. § 1341 reads as follows:
      “Whoever, having devised or intended to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or takes or receives therefrom any such matter or thing, or knowingly causes to be delivered by mail according to the direction thereon, or at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

       As is discussed supra, at 134-135, Miller has shown no prejudice to his ability to defend himself at trial, to the general fairness of the trial, or to the indictment’s sufficiency to bar subsequent prosecutions, and the Court of Appeals did not rest on any such theories of prejudice. Cf. Kotteakos v. United States, 328 U. S. 750 (1946) (finding prejudice in a case of extreme variance between a charge of a very broad conspiracy and proof of far narrower but technically included conspiracies). See also Berger v. United States, 295 U. S., at 83.

       This analysis is apparent in Sam’s discussion of the issue:
      “The learned judge who presided ... at the time the change was made in this indictment. . . rests the validity of the court’s action in permitting the change in the indictment, upon the ground that the words stricken out were surplusage, and were not at all material to it, and that no injury was done to the prisoner by allowing such change to be made. He goes on to argue that the grand jury would have found the indictment without this language. But it is not for the court to say whether they would or not. The party can only be tried upon the indictment as found by such grand jury, and especially upon all its language found in the charging part of that instrument. While it may seem to the court, with its better instructed mind in regard to what the statute requires to be found as to the intent to deceive, that it was neither necessary nor reasonable that the grand jury should attach importance to the fact that it was the Comptroller who was to be deceived, yet it is not impossible nor very improbable that the grand jury looked mainly to that officer as the party whom the prisoner intended to deceive by a report which was made upon his requisition and returned directly to him. . . . How can the court say there may not have been more than one of the jurors who found this indictment, who was satisfied that the false report was made to deceive the Comptroller, but was not convinced that it was made to deceive anybody else? And how can it be said that, with these words stricken out, it is the indictment which was found by the grand jury?” 121 U. S., at 9-10.

       Cf. United States v. Fabrizio, 385 U. S. 263, 275 (1966) (Stewart, J. dissenting) (quoting Bain for proposition that “[w]e long ago rejected the notion that ‘it lies within the province of a court to change the charging part of an indictment to suit its own notions of what it ought to have been, or what the grand jury would probably have made it if their attention had been called to suggested changes . . .”’); United States v. Ballard, 322 U. S. 78, 90-91 (1944) (Stone, C. J., dissenting) (under Bain an indictment is unconstitutionally amended “when it is so altered as to charge a different offense from that found by the grand jury”). See generally Smith v. United States, 360 U. S. 1, 9 (1959) (citing Bain for importance of a grand jury’s intervention as “a substantial safeguard against oppressive and arbitrary proceedings”); Jenkins v. McKeithen, 395 U. S. 411, 430 (1969) (plurality opinion) (citing Bain for proposition that “grand jury is designed to interpose an independent body of citizens between the accused and the prosecuting attorney and the court”).


author: Per Curiam.

text:
    OKLAHOMA v. CASTLEBERRY et al.
    No. 83-2126.
    Argued March 20, 1985
    Decided April 1, 1985

      David W. Lee, Assistant Attorney General of Oklahoma, argued the cause for petitioner. With him on the briefs were Michael C. Turpén, Attorney General, and Hugh A. Manning, Assistant Attorney General.

      Charles Foster Cox argued the cause and filed a brief for respondents.

      Briefs of amici curiae urging reversal were filed for the State of California by John K. Van de Kamp, Attorney General, Robert R. Granucci, Assistant Attorney General, and Clifford K. Thompson, Jr., and Ronald E. Niver, Deputy Attorneys General; and for Americans for Effective Law Enforcement, Inc., et al. by Fred E. Inbau, Wayne W. Schmidt, James P. Manak, David Crump, and Daniel B. Hales.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice Powell took no part in the decision of this case.


text:
    RAMIREZ v. INDIANA
    No. 84-5059.
    Argued March 19, 1985
    Decided April 1, 1985

      Kenneth F. Ripple, by appointment of the Court, 469 U. S. 1015, argued the cause for petitioner. With him on the briefs were David T. Link, Douglas W. Kenyon, Mollie A. Murphy, and Richard S. Myers.

      William E. Daily, Deputy Attorney General of Indiana, argued the cause for respondent. With him on the brief were Linley E. Pearson, Attorney General, and Lisa M. Paunicka, Deputy Attorney General.
   Per Curiam.

The judgment is affirmed by an equally divided Court.

Justice Powell took no part in the decision of this case.


author: Per Curiam. Justice Marshall,

text:
    HONIG, SUPERINTENDENT OF PUBLIC INSTRUCTION OF CALIFORNIA, et al. v. STUDENTS OF THE CALIFORNIA SCHOOL FOR THE BLIND et al.
    No. 84-436.
    Decided April 1, 1985
   Per Curiam.

Respondents, students of the California School for the Blind, brought this lawsuit in Federal District Court against petitioner state officials, claiming among other things that the school’s physical plant did not meet applicable seismic safety standards. Their complaint alleged rights of action under the Education for All Handicapped Children Act of 1975, 89 Stat. 773, 20 U. S. C. §§ 1232, 1401, 1405, 1406, 1411-1420, 1453, and § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, as amended, 29 U. S. C. § 794. After a lengthy trial the District Court issued a “preliminary injunction” requiring the State to conduct additional tests of school grounds to aid in assessment of the school’s seismic safety. Petitioners appealed to the United States Court of Appeals for the Ninth Circuit pursuant to 28 U. S. C. § 1292(a)(1). That court affirmed the issuance of the preliminary injunction on the ground that the lower court had not abused its discretion. 736 F. 2d 538 (1984). The court expressly noted that it was not finally deciding the merits of the action, but only was assessing the District Court’s reasoning to determine whether it had appropriately applied the traditional calculus for granting or denying preliminary injunctions. Id., at 542-543, 546-547, 550.

Petitioners have petitioned this Court for a writ of cer-tiorari to review the judgment of the Ninth Circuit, but in the meantime the tests ordered by the District Court’s preliminary injunction have been completed. We therefore are confronted with a situation nearly identical to that addressed in University of Texas v. Camenisch, 451 U. S. 390 (1981), in which the petitioners had completely complied with the terms of a preliminary injunction by the time the case reached this Court. In Camenisch we concluded that “the question whether a preliminary injunction should have been issued here is moot, because the terms of the injunction . . . have been fully and irrevocably carried out.” Id., at 398. Because only that aspect of the lawsuit was moot, however, we merely vacated the judgment of the Court of Appeals, and remanded the case for further proceedings. Ibid. Here, as in Camenisch, the only question of law actually ruled on by the Court of Appeals was whether the District Court abused its discretion in applying the complicated calculus for determining whether the preliminary injunction should have issued, an issue now moot. No order of this Court could affect the parties’ rights with respect to the injunction we are called upon to review. Other claims for relief, however, still remain to be resolved by the District Court. We accordingly grant the petition for writ of certiorari, and vacate the judgment of the Court of Appeals, with instructions to remand the case to the District Court for further proceedings consistent with this opinion.

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

Justice Marshall,

with whom Justice Brennan and Justice Stevens join,

dissenting.

Although I agree with the majority that a case such as this could be moot if the full burden imposed by the preliminary injunction has passed, it is not at all clear that that is the situation here. If this case is moot, the facts making it moot occurred subsequent to the Court of Appeals decision, and so do not appear on the record. That makes this case quite distinct from University of Texas v. Camenisch, 451 U. S. 390 (1981), where the issue of mootness had been raised, argued, and decided by the Court of Appeals. In the instant case, this Court has received no papers from the parties on this issue other than a petition for certiorari and a response. In those papers, neither party has assured the Court that the factual premises of mootness have actually been fulfilled, nor have the parties agreed that the case is moot. Since the Court has not requested any supplemental information or argument from the parties, the Court is determining that the case is moot without a clear understanding of the facts of the ease or their precise legal implications for the parties. I cannot accept that the Court can simply assume, as a factual matter, that mootness exists. We should inform the parties of our suspicion as to mootness and allow briefing on the issue. Absent this procedure, I dissent.

Mootness is mentioned twice in the papers before the Court. First, petitioners argue in their petition for certio-rari that the case is not moot in spite of the fact that “by the time this Court considers the instant petition, the state officials may well have already complied with the injunction. . . .” Pet. for Cert. 17. Leaving aside the merits of their arguments that full compliance would not render the action moot, their statement is hardly sufficient to inform the Court that there has been full compliance.

This theme is repeated in the respondents’ opposition. Respondents assert that the tests ordered by the District Court have been completed “and the final report in all likelihood will be completed before this Court determines whether to grant the present petition.” Brief in Opposition 14 (emphasis added). The opposition goes on to assure the Court that “should the final report of the trial court’s experts indicate, and the trial court find, that the Fremont site is seismically safe, there will remain no live issue whatsoever between the parties as to any aspect of the case.” Id., at 15 (emphasis in original). Although respondents have vigorously argued that once certain events occur this case will become moot, they have stopped conspicuously short of assuring the Court that those events have occurred. Indeed, they do not argue that the case is moot, but instead argue that the case “will become moot before [the] Court can hear or determine the issues presented.” Id., at 10.

In support of the opposition, respondents have attached to their filing a letter written by a consulting geologist who presumably is doing work that the preliminary injunction requires petitioners to have done. The letter, like the pleadings, stops short of informing this Court of the completion of all work done pursuant to the District Court’s preliminary injunction. Dated November 27, 1984, the letter states that additional review of aerial photographs will be completed in “the next 45 days,” that a draft report by investigators “should be completed in December” to be followed by a final report “by mid-January,” and that the consulting geologists’ report “should be submitted about 60 days later.” App. to Brief in Opposition 1-2.

The last filing in this case was the opposition, filed on December 7, 1984, and that, as I discussed above, went no further than to predict events in the following months that would render the case moot in respondents’ view. If the situation is still as it was there described, the case may well not yet be moot. Although it is well understood that it is “the duty of counsel to call such facts [as would suggest mootness] to [this Court’s] attention,” R. Stern & E. Gressman, Supreme Court Practice 896 (5th ed. 1978), nothing has been received since.

Although the Court may believe that the end is so near that it can safely be assumed, the future may well hold surprises for the parties as well as for the Court. A clear understanding of the facts of a case and of their legal implications should be a prerequisite to disposing of a case as moot. This case is a complex one and prior to disposition on mootness the parties should be informed of the Court’s suspicion as to mootness and be asked to provide the Court with facts and arguments. Because this was not done, I dissent.


text:
    OHIO v. KENTUCKY
    No. 27,
    Orig.
    Decided March 5, 1973, and January 21, 1980
    Decree entered April 15, 1985
   The Report of the Special Master is received and ordered filed. The Report is adopted.

DECREE

It Is Ordered, Adjudged and Decreed that:

1. The boundary line between the State of Ohio and the Commonwealth of Kentucky is fixed as geodetically described in Joint Exhibit 30 to the Special Master’s Report filed with this Court on April 15, 1985. Joint Exhibit 30 is incorporated by reference herein.

2. Copies of this Decree, and the Special Master’s Report (including Joint Exhibits 1-31 and 35) shall be filed with the Clerk of this Court, the Auditor of the State of Ohio, and the Secretary of State of the Commonwealth of Kentucky.

3. Copies of this Decree, and the Special Master’s Report (including Joint Exhibits 30 and 35, and paper prints of Joint Exhibits 1-29, once they become available) shall be filed with the County Recorder’s Office in Ohio and with the County Clerk’s Office in the Commonwealth of Kentucky in each of the following counties: in. Ohio, the Counties of Lawrence, Scioto, Adams, Brown, Clermont and Hamilton; and in Kentucky, the Counties of Boyd, Greenup, Lewis, Mason, Bracken, Pendleton, Campbell, Kenton, and Boone.

4. The State of Ohio and the Commonwealth of Kentucky each have concurrent jurisdiction over the Ohio River.

5. The costs of this proceeding shall be divided between the parties as recommended by the Special Master.


author: Per Curiam. Chief Justice Burger,

text:
    MINTZES, WARDEN v. BUCHANON
    No. 84-501.
    Decided April 15, 1985
   Per Curiam.

The Court is advised that the respondent died in Ingham County, Mich., on December 7, 1984. The Court’s order granting the writ of certiorari, see 469 U. S. 1033 (1984), therefore is vacated, and the petition for certiorari is dismissed. See Warden v. Palermo, 431 U. S. 911 (1977).

It is so ordered.

Justice Powell took no part in the decision of this case.

Chief Justice Burger,

dissenting.

In this case, the District Court and the Court of Appeals for the Sixth Circuit ordered that respondent either be released or given a new hearing on the degree of his crimes and a resentencing. This was ordered despite the passage of 25 years since respondent’s convictions for two murders committed while he was a fugitive on escape from prison. Both courts held that laches did not bar respondent’s claim that he did not knowingly and intelligently waive his right to counsel at the hearing and sentencing in 1956. Understandably troubled by the possible ramifications of such a drastic holding and concerned that even in this particular case it would be prejudiced in its defense to the allegations, given the loss of records, faded memories, and intervening deaths, the State of Michigan sought certiorari to review the judgment of the Court of Appeals. We granted the State’s petition and set the case for argument. 469 U. S. 1033 (1984).

Now, having been informed that the respondent has died, the Court simply directs that our order granting certiorari be vacated and the petition for certiorari dismissed, thereby leaving the Court of Appeals’ opinion standing. In reaching this surprising result, the Court relies upon a single authority which, it is clear upon analysis, does not support, let alone require, such a disposition, see Warden v. Palermo, 431 U. S. 911 (1977). And it ignores the one precedent which does directly control on this question. See McMann v. Ross, 396 U. S. 118 (1969) (per curiam); McMann v. Richardson, 397 U. S. 759, 760, n. 1 (1970).

In McMann v. Ross, the only case to have presented the precise issue we have here, the Court vacated the judgment of the Court of Appeals and remanded to the District Court with instructions to dismiss the respondent’s petition for writ of habeas corpus as moot. I would, as petitioner urges, dispose of this case in the same way. This is the course we have chosen to pursue in every civil case that becomes moot either pending a decision on certiorari or after we have granted a writ of certiorari, except Warden v. Palermo, which even if it were correct is plainly distinguishable. Thirty-five years ago, the Court noted that

“[t]he established practice of the Court in dealing with a civil case from a court in the federal system which has become moot while on its way here or pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction to dismiss.” United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950) (footnote omitted; emphasis added).

Indeed, as the Court said in Duke Power Co. v. Greenwood County, 299 U. S. 259, 267 (1936), this is the “duty” of this Court. Such a disposition “clears the path for future reliti-gation of the issues between the parties.” Munsingwear, supra, at 40. In this case it is possible, for example, that by applying collateral estoppel offensively, relatives of the defendant might well invoke the Sixth Circuit’s decision in a subsequent civil suit for damages. Moreover, by vacating the Court of Appeals’ judgment and remanding with instructions to dismiss as moot, we “eliminat[e] a judgment, review of which was prevented through happenstance.” 340 U. S., at 40. And it is only through this procedure that “the rights of all parties are preserved.” Ibid.

The Court mistakenly believes that our four-line order in Palermo, supra, requires that we only vacate the order granting certiorari and dismiss the petition. I do not understand how Palermo can possibly be regarded as controlling the disposition here. Palermo is significantly different from this case in at least one obvious respect — there, we had not granted the petition for certiorari. So also was the case in Dove v. United States, 423 U. S. 325 (1976), the authority we relied upon for our dismissal of the petition in Palermo. While in some circumstances we may wish to treat cases in which we have granted certiorari similarly to those in which a petition for certiorari has merely been filed here, it is inconceivable to me that we would ever consider ourselves bound to treat these two patently different categories of cases identically.

In my view, the Court has a higher duty when it learns that a case has become moot after it has granted review than when it discovers that a case in which review is being sought has become moot. In the former instance, the Court has, by its grant of the writ, asserted jurisdiction over the case, and brought the judgment of the lower court before it. If the Court simply vacates its order granting certiorari, it forces upon the parties and the courts below the problems it avoids for the sake of its own convenience. The Court’s action today leaves unclear, for instance, whether the Court of Appeals’ opinion remains as precedent as between the parties or their successors in any future proceeding. It is likewise unclear whether the opinion is generally to have precedential value in the Sixth Circuit. Finally, there remains considerable uncertainty over whether the Court of Appeals is required or permitted to vacate its opinion. Indeed, I suppose there will be a question whether the Court of Appeals even has jurisdiction to vacate or otherwise modify its opinion, given that our writ of certiorari is still lodged in that court; at the very least, the Court should vacate its writ of certiorari. Cf. Westinghouse Electric Corp. v. Vaughn, 466 U. S. 521 (1984); Colorado v. Nunez, 465 U. S. 324 (1984); Gillette Co. v. Miner, 459 U. S. 86 (1982). The Court’s disposition leaves the status of the Court of Appeals’ judgment and opinion in limbo. I believe we have an institutional obligation to avoid such confusion. This is easily achieved by following what heretofore, with the exception of Warden v. Palermo, has been our “established practice.”

Even if one accepts the dubious proposition that the Court is duty-bound to treat granted cases identical to cases where the petition for a writ of certiorari is pending, I still believe the Court’s disposition is incorrect because I am convinced the Court disposed of Palermo improperly. Palermo, it is true, was a case before us on habeas and we did dismiss the certiorari petition. The Court relied entirely, however, on Dove, a case which was before us on direct review, not ha-beas. In a case on direct review, it may be necessary simply to dismiss the petition to avoid the result in Durham v. United States, 401 U. S. 481 (1971), of having a defendant’s indictment dismissed, which in turn has the effect of “wip[ing] the slate entirely clean of a federal conviction which was unsuccessfully appealed throughout the entire appeal process to which the petitioner was entitled as of right,” id., at 484 (Blackmun, J., dissenting). The only alternative — and surely an unsatisfying one — would be for the Court to decide case-by-case whether it believes the decision in question to be correct or incorrect, and dismiss the petition for certiorari or vacate the judgment accordingly.

But plainly there is no such dilemma presented when a case is before us on writ of certiorari to review a judgment obtained on habeas. In such a case, our objectives of eliminating as precedent an opinion and judgment of which no final review is possible and clearing the path for any future litigation are achievable — and incidentally, without at the same time embracing a principle that would require dismissal of indictments — by vacating the judgment below and remanding with instructions to dismiss the habeas petition.

Even the Court in Durham, recognized the validity of distinguishing in this context between cases on direct and habeas review; the Court very carefully limited its holding to cases on direct review, see id., at 482-483. Our order in Dove also contemplated this distinction. In Dove, we overruled Durham only “[t]o the extent that [Durham] may be inconsistent with” our disposition in Dove, 423 U. S., at 325. We thereby removed any doubt that Ross — which otherwise one might have thought the Court also intended to overrule — was still valid precedent. Under the circumstances, especially since Palermo not only relied upon inap-posite authority but failed even to acknowledge Ross, I would not, as the Court does, read Palermo as limiting us to a dismissal.

If it were true, however, as the Court implicitly must believe, that we are required now to overrule either Ross or Palermo, I would “overrule” the latter. Palermo is the case inconsistent with our asserted “established practice.” Palermo, not Ross, is the disposition in search of a rationale.

Because I believe we should not compound the evils of a bad practice by repeating the error here, I dissent.