author: Justice Marshall Justice O’Connor,

text:
    CALIFORNIA v. TROMBETTA et al.
    No. 83-305.
    Argued April 18, 1984
    Decided June 11, 1984

      Charles R. B. Kirk, Deputy Attorney General of California, argued the cause for petitioner. With him on the briefs were John K. Van De Kamp, Attorney General, William D. Stein, Assistant Attorney General, and Gloria F. De Hart, Deputy Attorney General.

      John F. DeMeo argued the cause for respondents. With him on the brief were Thomas R. Kenney, J. Frederick Haley, and John A. Pettis.

      Briefs of amici curiae urging reversal were filed for the State of Minnesota et al. by Hubert H. Humphrey III, Attorney General of Minnesota, James B. Early, Special Assistant Attorney General, and Thomas L. Fabel, Deputy Attorney General, Jim Smith, Attorney General of Florida, Linley E. Pearson, Attorney General of Indiana, Edwin Lloyd Tittman, Attorney General of Mississippi, and Mike Greely, Attorney General of Montana; for the Appellate Committee of the California District Attorney’s Association by John R. Vance, Jr.; and for the National District Attorneys Association, Inc., et al. by David Crump, Wayne W. Schmidt, James P. Manak, and Edwin L. Miller, Jr.

        George L. Schraer and Lisa Short filed a brief for the State Public Defender of California as amicus curiae urging affirmance.
      Briefs of amici curiae were filed for the State of North Carolina by Rufus L. Edmisten, Attorney General, and Isaac T. Avery III, Special Deputy Attorney General; for the County of Los Angeles by Robert H. Philibosian, Harry B. Sondheim, and John W. Messer; and for the California Public Defender’s Association et al. by Albert J. Menaster, William M. Thornburg, and Ephraim Margolin.

   Justice Marshall

delivered the opinion of the Court.

The Due Process Clause of the Fourteenth Amendment requires the State to disclose to criminal defendants favorable evidence that is material either to guilt or to punishment. United States v. Agurs, 427 U. S. 97 (1976); Brady v. Maryland, 373 U. S. 83 (1963). This case raises the question whether the Fourteenth Amendment also demands that the State preserve potentially exculpatory evidence on behalf of defendants. In particular, the question presented is whether the Due Process Clause requires law enforcement agencies to preserve breath samples of suspected drunken drivers in order for the results of breath-analysis tests to be admissible in criminal prosecutions.

f — I

The Omicron Intoxilyzer (Intoxilyzer) is a device used in California to measure the concentration of alcohol in the blood of motorists suspected of driving while under the influence of intoxicating liquor. The Intoxilyzer analyzes the suspect’s breath. To operate the device, law enforcement officers follow these procedures:

“Prior to any test, the device is purged by pumping clean air through it until readings of 0.00 are obtained. The breath test requires a sample of‘alveolar’ (deep lung) air; to assure that such a sample is obtained, the subject is required to blow air into the intoxilyzer at a constant pressure for a period of several seconds. A breath sample is captured in the intoxilyzer’s chamber and infrared light is used to sense the alcohol level. Two samples are taken, and the result of each is indicated on a printout card. The two tests must register within 0.02 of each other in order to be admissible in court. After each test, the chamber is purged with clean air and then checked for a reading of zero alcohol. The machine is calibrated weekly, and the calibration results, as well as a portion of the calibration samples, are available to the defendant.” 142 Cal. App. 3d 138, 141-142, 190 Cal. Rptr. 319, 321 (1983) (citations omitted).

In unrelated incidents in 1980 and 1981, each of the respondents in this case was stopped on suspicion of drunken driving on California highways. Each respondent submitted to an Intoxilyzer test. Each respondent registered a blood-alcohol concentration substantially higher than 0.10 percent. Under California law at that time, drivers with higher than 0.10 percent blood-alcohol concentrations were presumed to be intoxicated. Cal. Veh. Code Ann. § 23126(a)(3) (West 1971) (amended 1981). Respondents were all charged with driving while intoxicated in violation of Cal. Veh. Code Ann. §23102 (West 1971) (amended 1981).

Prior to trial in Municipal Court, each respondent filed a motion to suppress the Intoxilyzer test results on the ground that the arresting officers had failed to preserve samples of respondents' breath. Although preservation of breath samples is technically feasible, California law enforcement officers do not ordinarily preserve breath samples, and made no effort to do so in these cases. Respondents each claimed that, had a breath sample been preserved, he would have been able to impeach the incriminating Intoxilyzer results. All of respondents’ motions to suppress were denied. Respondents Ward and Berry then submitted their cases on the police records and were convicted. Ward and Berry subsequently petitioned the California Court of Appeal for writs of habeas corpus. Respondents Trombetta and Cox did not submit to trial. They sought direct appeal from the Municipal Court orders, and their appeals were eventually transferred to the Court of Appeal to be consolidated with the Ward and Berry petitions.

The California Court of Appeal ruled in favor of respondents. After implicitly accepting that breath samples would be useful to respondents’ defenses, the court reviewed the available technologies and determined that the arresting officers had the capacity to preserve breath samples for respondents. 142 Cal. App. 3d, at 141-142, 190 Cal. Rptr., at 320-321. Relying heavily on the California Supreme Court’s decision in People v. Hitch, 12 Cal. 3d 641, 527 P. 2d 361 (1974), the Court of Appeal concluded: “Due process demands simply that where evidence is collected by the state, as it is with the intoxilyzer, or any other breath testing device, law enforcement agencies must establish and follow rigorous and systematic procedures to preserve the captured evidence or its equivalent for the use of the defendant.” 142 Cal. App. 3d, at 144, 190 Cal. Rptr., at 323. The court granted respondents Ward and Berry new trials, and ordered that the Intoxilyzer results not be admitted as evidence against the other two respondents. The State unsuccessfully petitioned for certiorari in the California Supreme Court, and then petitioned for review in this Court. We granted certiorari, 464 U. S. 1037 (1984), and now reverse.

II

Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense. To safeguard that right, the Court has developed “what might loosely be called the area of constitutionally guaranteed access to evidence.” United States v. Valenzuela-Bernal, 458 U. S. 858, 867 (1982). Taken together, this group of constitutional privileges delivers exculpatory evidence into the hands of the accused, thereby protecting the innocent from erroneous conviction and ensuring the integrity of our criminal justice system.

The most rudimentary of the access-to-evidence cases impose upon the prosecution a constitutional obligation to report to the defendant and to the trial court whenever government witnesses lie under oath. Napue v. Illinois, 360 U. S. 264, 269-272 (1959); see also Mooney v. Holohan, 294 U. S. 103 (1935). But criminal defendants are entitled to much more than protection against perjury. A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is either material to the guilt of the defendant or relevant to the punishment to be imposed. Brady v. Maryland, 373 U. S., at 87. Even in the absence of a specific request, the prosecution has a constitutional duty to turn over exculpatory evidence that would raise a reasonable doubt about the defendant’s guilt. United States v. Agurs, 427 U. S., at 112. The prosecution must also reveal the contents of plea agreements with key government witnesses, see Giglio v. United States, 405 U. S. 150 (1972), and under some circumstances may be required to disclose the identity of undercover informants who possess evidence critical to the defense, Roviaro v. United States, 353 U. S. 53 (1957).

Less clear from our access-to-evidence cases is the extent to which the Due Process Clause imposes on the government the additional responsibility of guaranteeing criminal defendants access to exculpatory evidence beyond the government’s possession. On a few occasions, we have suggested that the Federal Government might transgress constitutional limitations if it exercised its sovereign powers so as to hamper a criminal defendant’s preparation for trial. For instance, in United States v. Marion, 404 U. S. 307, 324 (1971), and in United States v. Lovasco, 431 U. S. 783, 795, n. 17 (1977), we intimated that a due process violation might occur if the Government delayed an indictment for so long that the defendant’s ability to mount an effective defense was impaired. Similarly, in United States v. Valenzuela-Bernal, supra, we acknowledged that the Government could offend the Due Process Clause of the Fifth Amendment if, by deporting potential witnesses, it diminished a defendant’s opportunity to put on an effective defense. 458 U. S., at 873.

We have, however, never squarely addressed the government’s duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Cf. United States v. Valenzuela-Bernal, supra, at 870. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing — as the California Court of Appeal did in this case— the State’s most probative evidence. '

One case in which we have discussed due process constraints on the Government’s failure to preserve potentially exculpatory evidence is Killian v. United States, 368 U. S. 231 (1961). In Killian, the petitioner had been convicted of giving false testimony in violation of 18 U. S. C. § 1001. A key element of the Government’s case was an investigatory report prepared by the Federal Bureau of Investigation. The Solicitor General conceded that, prior to petitioner’s trial, the F. B. I. agents who prepared the investigatory report destroyed the preliminary, notes they had made while interviewing witnesses. The petitioner argued that these notes would have been helpful to his defense and that the agents had violated the Due Process Clause by destroying this exculpatory evidence. While not denying that the notes might have contributed to the petitioner’s defense, the Court ruled that their destruction did not rise to the level of constitutional violation:

“If the agents’ notes . . . were made only for the purpose of transferring the data thereon . . . , and if, having served that purpose, they were destroyed by the agents in good faith and in accord with their normal practices, it would be clear that their destruction did not constitute an impermissible destruction of evidence nor deprive petitioner of any right.” Id., at 242.

In many respects the instant case is reminiscent of Killian v. United States. To the extent that respondents’ breath samples came into the possession of California authorities, it was for the limited purpose of providing raw data to the Intoxilyzer. The evidence to be presented at trial was not the breath itself but rather the Intoxilyzer results obtained from the breath samples. As the petitioner in Killian wanted the agents’ notes hi order to impeach their final reports, respondents here seek the breath samples in order to challenge incriminating tests results produced with the Intoxilyzer.

Given our precedents in this area, we cannot agree with the California Court of Appeal that the State’s failure to retain breath samples for respondents constitutes a violation of the Federal Constitution. To begin with, California authorities in this case did not destroy respondents’ breath samples in a calculated effort to circumvent the disclosure requirements established by Brady v. Maryland and its progeny. In failing to preserve breath samples for respondents, the officers here were acting “in good faith and in accord with their normal practice.” Killian v. United States, supra, at 242. The record contains no allegation of official animus towards respondents or of a conscious effort to suppress exculpatory evidence.

More importantly, California’s policy of not preserving breath samples is without constitutional defect. Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, see United States v. Agurs, 427 U. S., at 109-110, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Neither of these conditions is met on the facts of this case.

Although the preservation of breath samples might conceivably have contributed to respondents’ defenses, a dispassionate review of the Intoxilyzer and the California testing procedures can only lead one to conclude that the chances are extremely low that preserved samples would have been exculpatory. The accuracy of the Intoxilyzer has been reviewed and certified by the California Department of Health. To protect suspects against machine malfunctions, the Department has developed test procedures that include two independent measurements (which must be closely correlated for the results to be admissible) bracketed by blank runs designed to ensure that the machine is purged of alcohol traces from previous tests. See supra, at 481-482. In all but a tiny fraction of cases, preserved breath samples would simply confirm the Intoxilyzer’s determination that the defendant had a high level of blood-alcohol concentration at the time of the test. Once the Intoxilyzer indicated that respondents were legally drunk, breath samples were much more likely to provide inculpatory than exculpatory evidence.

Even if one were to assume that the Intoxilyzer results in this case were inaccurate and that breath samples might therefore have been exculpatory, it does not follow that respondents were without alternative means of demonstrating their innocence. Respondents and amici have identified only a limited number of ways in which an Intoxilyzer might malfunction: faulty calibration, extraneous interference with machine measurements, and operator error. See Brief for Respondents 32-34; Brief for California Public Defender’s Association et al. as Amici Curiae 25-40. Respondents were perfectly capable of raising these issues without resort to preserved breath samples. To protect against faulty calibration, California gives drunken driving defendants the opportunity to inspect the machine used to test their breath as well as that machine’s weekly calibration results and the breath samples used in the calibrations. See supra, at 481-482. Respondents could have utilized these data to impeach the machine’s reliability. As to improper measurements, the parties have identified only two sources capable of interfering with test results: radio waves and chemicals that appear in the blood of those who are dieting. For defendants whose test results might have been affected by either of these factors, it remains possible to introduce at trial evidence demonstrating that the defendant was dieting at the time of the test or that the test was conducted near a source of radio waves. Finally, as to operator error, the defendant retains the right to cross-examine the law enforcement officer who administered the Intoxilyzer test, and to attempt to raise doubts in the mind of the factfinder whether the test was properly administered.

H-1 I — H

We conclude, therefore, that the Due Process Clause of the Fourteenth Amendment does not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial. Accordingly, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice O’Connor,

concurring.

Rules concerning preservation of evidence are generally matters of state, not federal constitutional, law. See United States v. Augenblick, 393 U. S. 348, 352-353 (1969). The failure to preserve breath samples does not render a prosecution fundamentally unfair, and thus cannot render breath-analysis tests inadmissible as evidence against the accused. Id., at 356. Similarly, the failure to employ alternative methods of testing blood-alcohol concentrations is of no due process concern, both because persons are presumed to know their rights under the law and because the existence of tests not used in no way affects the fundamental fairness of the convictions actually obtained. I understand the Court to state no more than these well-settled propositions. Accordingly, I join both its opinion and judgment.

       Law enforcement agencies in California are obliged to use breath-analysis equipment that has been approved by the State’s Department of Health. See 17 Cal. Admin. Code § 1221 (1976). The Department has approved a number of blood-alcohol testing devices employing a variety of technologies, see List of Instruments and Related Accessories Approved for Breath Alcohol Analysis (Dec. 20, 1979), reprinted in App. 238-247, of which the Omicron Intoxilyzer is the most popular model, see Brief for Petitioner 6, n. 6.

       Under California law, drunken driving suspects are given the choice of having their blood-alcohol concentraton determined by either a blood test, a urine test, or a breath test. Cal. Veh. Code Ann. § 13353 (West 1971 and Supp. 1984). Suspects who refuse to submit to any test are liable to have their driving licenses suspended. Ibid.

       The California Department of Health has approved a device, known as an Intoximeter Field Crimper-Indium Tube Encapsulation Kit (Kit), which officers can use to preserve breath samples. App. 247. To use the Kit, a suspect must breathe directly into an indium tube, which preserves samples in three separate chambers. See 142 Cal. App. 3d 138, 142, 190 Cal. Rptr. 319, 321 (1983). The breath trapped in each chamber can later be used to determine the suspect’s blood-alcohol concentration through the use of a laboratory instrument known as a Gas Chromatograph Intoxi-meter, which has also been approved by the California Department of Health. App. 242-243. Because the suspect must breathe directly into the indium tube, the Kit cannot be used to preserve the same breath sample used in an Intoxilyzer test. See, supra, at 481-482. Other devices, similar in function to the Kit, can be attached to an Intoxilyzer and used to collect the air that the Intoxilyzer purges, see Brief for Respondents 18-19, but none of these devices has yet received approval from the California Department of Health, see Reply Brief for Petitioner 3-4.

       The California Court of Appeal expressed some doubt whether respondents Trombetta and Cox were entitled to appeal their suppression orders and ultimately ordered that their appeals be dismissed. 142 Cal. App. 3d, at 140, 143, 190 Cal. Rptr., at 320, 323. The court, however, ruled on the merits of their claims and thereby exercised jurisdiction over their appeals. Id., at 144, 190 Cal. Rptr., at 323. As to Trombetta and Cox, the Court of Appeal decision was comparable to a judgment affirming a suppression order, which is reviewable in this Court under 28 U. S. C. § 1257(3). Cf., e. g., Michigan v. Clifford, 464 U. S. 287 (1984).

        People v. Hitch involved another device used to measure blood-alcohol concentrations. With that device, a suspect’s breath bubbles through a glass ampoule containing special chemicals that change colors depending on the amount of alcohol in the suspect’s blood. 12 Cal. 3d, at 644, 527 P. 2d, at 363-364. In keeping with California procedures, law enforcement officials in Hitch discarded the ampoule after they had completed their testing, even though the ampoule might have been saved for retesting by the defendant. Relying on this Court’s decisions in Brady v. Maryland, 373 U. S. 83 (1963), and Giglio v. United States, 405 U. S. 150, 153-154 (1972), the California Supreme Court concluded that the Due Process Clause is implicated when a State intentionally destroys evidence that might have proved favorable to a criminal defendant. 12 Cal. 3d, at 645-650, 527 P. 2d, at 364-370. The Hitch decision was noteworthy in that it extrapolated from Brady’s disclosure requirement an additional constitutional duty on the part of prosecutors to preserve potentially exculpatory evidence. See Note, The Right to Independent Testing: A New Hitch in the Preservation of Evidence Doctrine, 75 Colum. L. Rev. 1355, 1364-1368 (1975); cf. United States v. Bryant, 142 U. S. App. D. C. 132, 141, 439 F. 2d 642, 651 (1971) (Wright, J.) (Government must make “ ‘earnest efforts’ to pre serve crucial materials and to find them once a discovery request is made”).
      For a number of years, there was uncertainty whether the California courts would extend the Hitch decision to the Intoxilyzer. In People v. Miller, 52 Cal. App. 3d 666, 125 Cal. Rptr. 341 (1975), a Court of Appeal panel refused to extend Hitch because the Intoxilyzer does not reduce breath samples to a preservable form comparable to the ampoules created with the device involved in Hitch. The Court of Appeal in Trombetta declined to follow Miller, and reasoned that as long as there were other methods of preserving specimens (such as the Indium Tube Kit, see n. 3, supra), the State was obliged to preserve a breath sample equivalent to the one used in the Intoxilyzer. 142 Cal. App. 3d, at 143-144, 190 Cal. Rptr., at 322-323.

       In related cases arising under the Sixth and Fourteenth Amendments, we have recognized that criminal defendants are entitled to call witnesses on their own behalf and to cross-examine witnesses who have testified on the government’s behalf. See Davis v. Alaska, 415 U. S. 308 (1974); Washington v. Texas, 388 U. S. 14 (1967).

       We accept the California Court of Appeal’s conclusion that the Intox-ilyzer procedure brought respondents’ breath samples into the possession of California officials. The capacity to preserve breath samples is equivalent to the actual possession of samples. See n. 5, supra.

       In our prosecutorial disclosure cases, we have imposed a similar requirement of materiality, United States v. Agurs, 427 U. S. 97 (1976), and have rejected the notion that a “prosecutor has a constitutional duty routinely to deliver his entire file to defense counsel.” Id., at 111; see also Moore v. Illinois, 408 U. S. 786, 795 (1972) (“We know of no constitutional requirement that the prosecution make a complete and detailed accounting to the defense of all police investigatory work on a case”).

       The Intoxilyzer has also passed accuracy requirements established by the National Highway Traffic Safety Administration of the Department of Transportation. See 38 Fed. Reg. 30459 (1973); A. Flores, Results of the First Semi-Annual Qualification Testing of Devices to Measure Breath Alcohol 10 (Dept, of Transportation 1975).

       The materiality of breath samples is directly related to the reliability of the Intoxilyzer itself. The degree to which preserved samples are material depends on how reliable the Intoxilyzer is. This correlation suggests that a more direct constitutional attack might be made on the sufficiency of the evidence underlying the State’s case. After all, if the Intoxilyzer were truly prone to erroneous readings, then Intoxilyzer results without more might be insufficient to establish guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (1979).

       Respondents could also have protected themselves from erroneous on-the-scene testing by electing to submit to urine or blood tests, see n. 2, supra, because the State automatically would have preserved urine and blood samples for retesting by respondents. Respondents, however, were not informed of the difference between the various testing procedures when they were asked to select among the three available methods of testing blood-alcohol concentrations. But see Cal. Veh. Code Ann. § 13353.5 (West 1971) (enacted in 1983) (requiring suspects to be informed that samples will be retained only in urine and blood tests). To the extent that this and other access-to-evidence cases turn on the underlying fairness of governmental procedures, it would be anomalous to permit the State to justify its actions by relying on procedural alternatives that were available, but unknown to the defendant. Similarly, it is irrelevant to our inquiry that California permits an accused drunken driver to have a second blood-alcohol test conducted by independent experts, since there is no evidence on this record that respondents were aware of this alternative.

       State courts and legislatures, of course, remain free to adopt more rigorous safeguards governing the admissibility of scientific evidence than those imposed by the Federal Constitution. See, e. g., Lauderdale v. State, 548 P. 2d 376 (Alaska 1976); City of Lodi v. Hine, 107 Wis. 2d 118, 318 N. W. 2d 383 (1982).


source: Caselaw Access Project

author:
Justice Rehnquist
      Justice Brennan, Justice Stevens,

license: Public Domain

text:
    OHIO v. JOHNSON
    No. 83-904.
    Argued April 25, 1984
    Decided June 11, 1984

      John E. Shoop argued the cause for petitioner. With him on the briefs were Judson J. Hawkins and Joseph M. Gurley.

      Albert L. Purola, by appointment of the Court, 465 U. S. 1019, argued the cause and filed a brief for respondent.

        Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, Carter G. Phillips, and Kathleen A. Felton filed a brief for the United States as amicus curiae urging reversal.

   Justice Rehnquist

delivered the opinion of the Court.

Respondent Kenneth Johnson was indicted by an Ohio grand jury for four offenses, ranging from murder to grand theft, as a result of the killing of Thomas Hill and the theft of property from Hill’s apartment. Respondent offered to plead guilty to charges of involuntary manslaughter and grand theft, but pleaded not guilty to charges of murder and aggravated robbery. Over the State’s objection, the trial court accepted the “guilty” pleas to the lesser offenses, and then granted respondent’s motion to dismiss the two most serious charges on the ground that because of his guilty pleas, further prosecution on the more serious offenses was barred by the double jeopardy prohibitions of the Fifth and Fourteenth Amendments. This judgmént was affirmed on appeal through the Ohio state courts, and we granted certiorari. 465 U. S. 1004 (1984). We now reverse the judgment of the Supreme Court of Ohio and hold that prosecuting respondent on the two more serious charges would not constitute the type of “multiple prosecution” prohibited by the Double Jeopardy Clause.

Thomas Hill was shot to death in his apartment in the city of Mentor-on-the-Lake, a city northeast of Cleveland on Lake Erie. Several weeks later, a county grand jury indicted respondent on one count each of murder, involuntary manslaughter, aggravated robbery, and grand theft. Meanwhile, respondent had left Ohio and was not arraigned on the charges until nearly two years after the killing. At his arraignment respondent offered to plead guilty only to the charges of involuntary manslaughter and grand theft, while pleading not guilty to the more serious offenses of murder and aggravated robbery. Over the State’s objection, the trial court accepted the guilty pleas and sentenced respondent to a term of imprisonment. App. 19-21. Respondent then moved to dismiss the remaining charges against him on the ground that their further prosecution would violate his right under the Double Jeopardy Clause of the Fifth Amendment not to be placed twice in jeopardy for the same offense. The trial court granted respondent’s motion and dismissed the remaining charges, finding that because involuntary manslaughter and grand theft were, respectively, lesser included offenses of the remaining charges of murder and aggravated robbery, continued prosecution of the greater offenses after acceptance of respondent’s guilty pleas on the lesser offenses was barred by the Double Jeopardy Clause. App. to Pet. for Cert. A24.

The Ohio Court of Appeals and then the Supreme Court of Ohio affirmed the decision of the trial court. 6 Ohio St. 3d 420, 453 N. E. 2d 595 (1983). The State Supreme Court held that in these circumstances aggravated robbery was an “allied offens[e] of similar import” to theft, id., at 422, 453 N. E. 2d, at 598, and reasoned that since state law permitted conviction on only one of these charges, acceptance of respondent’s guilty plea to the charge of theft prevented conviction for the charge of aggravated robbery. The crime of involuntary manslaughter was held to be distinguishable from the offense of murder only by the mental states required to commit each offense, but that in any one killing, an offender could only be convicted of involuntary manslaughter or murder, but not both crimes.

We think the Supreme Court of Ohio was mistaken in its observation that “this case concerns the third double jeopardy protection prohibiting multiple punishments for the same offense.” Id., at 421, 453 N. E. 2d, at 598. The Double Jeopardy Clause, of course, affords a defendant three basic protections:

'“[It] protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense.’” Brown v. Ohio, 432 U. S. 161, 165 (1977), quoting North Carolina v. Pearce, 395 U. S. 711, 717 (1969).

As we have explained on numerous occasions, the bar to retrial following acquittal or conviction ensures that the State does not make repeated attempts to convict an individual, thereby exposing him to continued embarrassment, anxiety, and expense, while increasing the risk of an erroneous conviction or an impermissibly enhanced sentence. See, e. g., United States v. Wilson, 420 U. S. 332, 343 (1975); Green v. United States, 355 U. S. 184, 187-188 (1957).

In contrast to the double jeopardy protection against multiple trials, the final component of double jeopardy — protection against cumulative punishments — is designed to ensure that the sentencing discretion of courts is confined to the limits established by the legislature. Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, United States v. Wiltberger, 5 Wheat. 76, 93 (1820), the question under the Double Jeopardy Clause whether punishments are “multiple” is essentially one of legislative intent, see Missouri v. Hunter, 459 U. S. 359, 366-368 (1983). But where a defendant is retried following conviction, the Clause’s third protection ensures that after a subsequent conviction a defendant receives credit for time already served. North Carolina v. Pearce, supra, at 718.

We accept, as we must, the Ohio Supreme Court’s determination that the Ohio Legislature did not intend cumulative punishment for the two pairs of crimes involved here. But before respondent can ever be punished for the offenses of murder and aggravated robbery he will first have to be found guilty of those offenses. The trial court’s dismissal of these more serious charges did more than simply prevent the imposition of cumulative punishments; it halted completely the proceedings that ultimately would have led to a verdict of guilt or innocence on these more serious charges. Presumably the trial court, in the event of a guilty verdict on the more serious offenses, will have to confront the question of cumulative punishments as a matter of state law, but because of that court’s ruling preventing even the trial of the more serious offenses, that stage of the prosecution was never reached. While the Double Jeopardy Clause may protect a defendant against cumulative punishments for convictions on the same offense, the Clause does not prohibit the State from prosecuting respondent for such multiple offenses in a single prosecution.

Respondent urges, as an alternative basis for affirming the judgment of the Supreme Court of Ohio, that further prosecution of the counts which were dismissed would violate the double jeopardy prohibition against multiple prosecutions. Brief for Respondent 17-18. He concedes that on the authority of our decision in Brown v. Ohio, supra, the State is not prohibited by the Double Jeopardy Clause from charging respondent with greater and lesser included offenses and prosecuting those offenses in a single trial. Brief for Respondent 7. But, he argues, his conviction and sentence on the charges of involuntary manslaughter and grand theft mean that further prosecution on the remaining offenses will implicate the double jeopardy protection against a second prosecution following conviction. The court below never had occasion to address this argument.

The answer to this contention seems obvious to us. Respondent was indicted on four related charges growing out of a murder and robbery. The grand jury returned a single indictment, and all four charges were embraced within a single prosecution. Respondent’s argument is apparently based on the assumption that trial proceedings, like amoebae, are capable of being infinitely subdivided, so that a determination of guilt and punishment on one count of a multicount indictment immediately raises .a double jeopardy bar to continued prosecution on any remaining counts that are greater or lesser included offenses of the charge just concluded. We have never held that, and decline to hold it now.

Previously we have recognized that the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been tried and acquitted or convicted on the lesser included offense. See Brown v. Ohio, 432 U. S. 161 (1977). In Brown the State first charged the defendant with “joyriding,” that is, operating an auto without the owner’s consent. The defendant pleaded guilty to this charge and was sentenced. Subsequently, the State indicted the defendant for auto theft and joyriding, charges which this Court held were barred by the Double Jeopardy Clause, since the defendant had previously been convicted in a separate proceeding of joyriding, which was a lesser included offense of auto theft. Brown v. Ohio, supra, at 169.

We do not believe, however, that the principles of finality and prevention of prosecutorial overreaching applied in Brown reach this case. No interest of respondent protected by the Double Jeopardy Clause is implicated by continuing prosecution on the remaining charges brought in the indictment. Here respondent offered only to resolve part of the charges against him, while the State objected to disposing of any of the counts against respondent without a trial. Respondent has not been exposed to conviction on the charges to which he pleaded not guilty, nor has the State had the opportunity to marshal its evidence and resources more than once or to hone its presentation of its case through a trial. The acceptance of a guilty plea to lesser included offenses while charges on the greater offenses remain pending, moreover, has none of the implications of an “implied acquittal” which results from a verdict convicting a defendant on lesser included offenses rendered by a jury charged to consider both greater and lesser included offenses. Cf. Price v. Georgia, 398 U. S. 323, 329 (1970); Green v. United States, 355 U. S., at 191. There simply has been none of the governmental overreaching that double jeopardy is supposed to prevent. On the other hand, ending prosecution now would deny the State its right to one full and fair opportunity to convict those who have violated its laws. Arizona v. Washington, 434 U. S. 497, 509 (1978).

We think this is an even clearer case than Jeffers v. United States, 432 U. S. 137 (1977), where we rejected a defendant’s claim of double jeopardy based upon a guilty verdict in the first of two successive prosecutions, when the defendant had been responsible for insisting that there be separate rather than consolidated trials. Here respondent’s efforts were directed to separate disposition of counts in the same indictment where no more than one trial of the offenses charged was ever contemplated. Notwithstanding the trial court’s acceptance of respondent’s guilty pleas, respondent should not be entitled to use the Double Jeopardy Clause as a sword to prevent the State from completing its prosecution on the remaining charges.

For the foregoing reasons we hold that the Double Jeopardy Clause does not prohibit the State from continuing its prosecution of respondent on the charges of murder and aggravated robbery. Accordingly, the judgment of the Ohio Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Brennan,

concurring in part and dissenting in part.

In my view, the judgment of the Ohio Supreme Court with respect to the aggravated robbery charge rests on independent and adequate state grounds. I agree with the Court, however, that continued prosecution of respondent on the charge of murder after respondent pleaded guilty to the charge of involuntary manslaughter was not barred by the Double Jeopardy Clause.

Justice Stevens,

with whom Justice Marshall joins,

dissenting.

A conviction based on a plea of guilty has the same legal effect as a conviction based on a jury’s verdict. The conviction in this case authorized the State of Ohio to place respondent in prison for several years. As the Court ex-. pressly recognizes, “the Double Jeopardy Clause prohibits prosecution of a defendant for a greater offense when he has already been . . . convicted on the lesser included offense.” Ante, at 501. That statement fits this case precisely. Since it is a correct statement of the law, I would affirm the judgment of the Supreme Court of Ohio insofar as it denied the State the right to prosecute respondent on the charge of murder.

       The elements of murder in Ohio are:
      “(A) No person shall purposely cause the death of another.
      “(B) Whoever violates this section is guilty of murder, and shall be punished as provided in section 2929.02 of the Revised Code.” Ohio Rev. Code Ann. §2903.02 (1982).

       The elements of the crime of involuntary manslaughter are:
      “(A) No person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit a felony.
      “(B) No person shall cause the death of another as a proximate result of the offender’s committing or attempting to commit a misdemeanor.
      “(C) Whoever violates this section is guilty of involuntary manslaughter. Violation of division (A) of this section is a felony of the first degree. Violation of division (B) of this section is a felony of the third degree.” Ohio Rev. Code Ann. §2903.04 (1982 and Supp. 1983).

       The Ohio statutory elements of the crime of aggravated robbery are:
      “(A) No person, in attempting or committing a theft offense as defined in section 2913.01 of the Revised Code, or in fleeing immediately after such attempt or offense, shall do either of the following:
      “(1) Have a deadly weapon or dangerous ordnance ... on or about his person or under his control;
      “(2) Inflict, or attempt to inflict serious physical harm on another.
      “(B) Whoever violates this section is guilty of aggravated robbery, a felony of the first degree.” Ohio Rev. Code Ann. §2911.01 (1982 and Supp. 1983).

       The crime of grand theft in Ohio is defined as follows:
      “(A) No person, with purpose to deprive the owner of property or services, shall knowingly obtain or exert control over either:
      “(1) Without the consent of the owner or person authorized to give consent;
      “(2) Beyond the scope of the express or implied consent of the owner or person authorized to give consent;
      “(3) By deception;
      “(4) By threat.
      “(B) ... If the value of the property or services stolen is one hundred fifty dollars or more, or if the property stolen is any of the property listed in section 2913.71 of the Revised Code, or if the offender has previously been convicted of a theft offense, a violation of this section is grand theft, a felony of the fourth degree.” Ohio Rev. Code Ann. § 2913.02 (1982 and Supp. 1983).

       The term “allied offense,” has been interpreted to mean that two crimes share common elements such that the commission of one crime will necessitate commission of the other. State v. Logan, 60 Ohio St. 2d 126, 128, 397 N. E. 2d 1345, 1347 (1979).

       We agree with respondent that the most logical interpretation of the holding below is that the court found involuntary manslaughter to be a lesser included offense of murder. In one sentence of the opinion, however, the mental states of the two crimes are considered mutually exclusive, which would suggest that conviction on one is inconsistent with conviction on the other. See 6 Ohio St. 3d, at 424, 453 N. E. 2d, at 599. In the very next sentence, however, the opinion states that the two offenses are the same under the Blockburger test, i. e., involuntary manslaughter is a lesser included offense of the crime of murder. This interpretation accords with the statement in the opinion that the principles of collateral estoppel applied in Ashe v. Swenson, 397 U. S. 436 (1970), have no relevance to this case.

       We face at the threshold an attack on our jurisdiction to review the decision below. Respondent seizes upon the Ohio Supreme Court’s reference to state law in its syllabus and in the accompanying opinion to argue that the decision below rested on an adequate and independent state ground. Ordinarily, we have jurisdiction to review a state-court judgment, if the decision “appears to rest primarily on federal law, or to be interwoven with the federal law,” or if the “adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Michigan v. Long, 463 U. S. 1032, 1040-1041 (1983).
      Here, that presumption must be applied in light of the syllabus rule of the Ohio Supreme Court, which provides that the holding of the case appears in the syllabus, since that is the only portion of the opinion on which a majority of the court must agree. See State ex rel. Donahey v. Edmondson, 89 Ohio St. 93, 105 N. E. 269 (1913); see also Perkins v. Benguet Consolidated Mining Co., 342 U. S. 437, 441-442 (1952). But Ohio courts do not suggest that the opinion is not germane to interpreting the court’s holding as expressed in its syllabus. Hart v. Andrews, 103 Ohio St. 218, 221, 132 N. E. 846, 847 (1921). Indeed, where the grounds of the decision are not clearly predicated on state law, we have felt compelled to examine the opinion below to determine whether the Ohio Supreme Court may have ruled differently if it “had felt free, under our decisions, to do so.” Perkins, supra, at 443.
      A review of the court’s syllabus indicates that the court did not articulate an independent state-law ground for the decision. The first part of the syllabus refers to state law in determining that, as allied offenses, the State may only obtain convictions on either aggravated robbery or grand theft, but not both. But the syllabus does not explain why the State may not continue to press forward with its prosecution of respondent for aggravated robbery, since the multicount statute that bars multiple convictions for allied offenses plainly admits to the possibility that the State may prosecute allied offenses in a single prosecution. See Ohio Rev. Code. Ann. §2941.25 (1982 and Supp. 1983). A look at the opinion accompanying the syllabus, however, shows that the judge writing the opinion believed that continued prosecution of respondent on the remaining charges was proscribed by the double jeopardy protection against multiple punishments. 6 Ohio St. 3d, at 421, 453 N. E. 2d, at 597. The federal ground for the court’s decision affirming the dismissal of the murder charge is much easier to discern, since the text of the court’s syllabus refers directly to the prohibition against double jeopardy. Although the court’s reference to double jeopardy might arguably be to the Ohio version, see Ohio Const., Art. I, § 10, the failure to indicate clearly that state double jeopardy protection was being invoked, when coupled with the references in the opinion to our decisions in North Carolina v. Pearce, 395 U. S. 711 (1969), and Ashe v. Swenson, supra, convinces us that the Ohio Supreme Court based its decision on its interpretation of the Double Jeopardy Clause of the Fifth Amendment as applied to the States by the Fourteenth Amendment.

       In the federal courts the test established in Blockburger v. United States, 284 U. S. 299, 304 (1932), ordinarily determines whether the crimes are indeed separate and whether cumulative punishments may be imposed. See Albemaz v. United States, 450 U. S. 333, 337 (1981); Whalen v. United States, 445 U. S. 684, 691 (1980). As should be evident from our decision in Missouri v. Hunter, however, the Blockburger test does not necessarily control the inquiry into the intent of a state legislature. Even if the crimes are the same under Blockburger, if it is evident that a state legislature intended to authorize cumulative punishments, a court’s inquiry is at an end.

       Respondent also argues that prosecution on the remaining charges is barred by the principles of collateral estoppel enunciated by this Court in Ashe v. Swenson, 397 U. S. 436 (1970). Even if the two were mutually exclusive crimes, see n. 6, supra, the taking of a guilty plea is not the same as an adjudication on the merits after full trial, such as took place in Ashe v. Swenson. Moreover, in a case such as this, where the State has made no effort to prosecute the charges seriatim, the considerations of double jeopardy protection implicit in the application of collateral estoppel are inapplicable.

       We see no need to address the manner in which the trial court should resolve the question of the existing guilty pleas if the ease proceeds to trial, the issue appearing to involve construction of state law and the jurisdiction of Ohio courts to fashion appropriate relief. See Ohio Rule Crim. Proc. 32.1 (1982); cf. Price v. Georgia, 398 U. S. 323, 332 (1970).

      As far as the charge of aggravated robbery is concerned, it is perfectly obvious that the judgment of the Ohio Supreme Court rests on the adequate and independent state ground that it was an “allied offense of similar import” to theft within the meaning of the Ohio rule that precludes prosecution for two such offenses. The Court’s cavalier disregard for the state-law basis for this aspect of the judgment of the Supreme Court of Ohio is totally unprecedented.


author: Justice Stevens

text:
    MABRY, COMMISSIONER, ARKANSAS DEPARTMENT OF CORRECTION v. JOHNSON
    No. 83-328.
    Argued April 16, 1984
    Decided June 11, 1984

      John Steven Clark, Attorney General of Arkansas, argued the cause for petitioner. With him on the briefs was Alice Ann Burns, Deputy Attorney General.

      Jerrold J. Ganzfried argued the cause for the United States as amicus curiae urging reversal. On the brief were Solicitor General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Gloria C. Phares.

      Richard Quiggle, by appointment of the Court, 465 U. S. 1003, argued the cause and filed a brief for respondent.
   Justice Stevens

delivered the opinion of the Court.

The question presented is whether a defendant’s acceptance of a prosecutor’s proposed plea bargain creates a constitutional right to have the bargain specifically enforced.

In the late evening of May 22, 1970, three members of a family returned home to find a burglary in progress. Shots were exchanged resulting in the daughter’s death and the wounding of the father and respondent — one of the burglars. Respondent was tried and convicted on three charges: burglary, assault, and murder. The murder conviction was set aside by the Arkansas Supreme Court, Johnson v. State, 252 Ark. 1113, 482 S. W. 2d 600 (1972). Thereafter, plea negotiations ensued..

At the time of the negotiations respondent was serving his concurrent 21- and 12-year sentences on the burglary and assault convictions. On Friday, October 27, 1972, a deputy prosecutor proposed to respondent’s attorney that in exchange for a plea of guilty to the charge of accessory after a felony murder, the prosecutor would recommend a sentence of 21 years to be served concurrently with the burglary and assault sentences. On the following day, counsel communicated the offer to respondent who agreed to accept it. On the next Monday the lawyer called the prosecutor “and communicated [respondent’s] acceptance of the offer.” App. 10. The prosecutor then told counsel that a mistake had been made and withdrew the offer. He proposed instead that in exchange for a guilty plea he would recommend a sentence of 21 years to be served consecutively to respondent’s other sentences.

Respondent rejected the new offer and elected to stand trial. On the second day of trial, the judge declared a mistrial and plea negotiations resumed, ultimately resulting in respondent’s acceptance of the prosecutor’s second offer. In accordance with the plea bargain, the state trial judge imposed a 21-year sentence to be served consecutively to the previous sentences.

After exhausting his state remedies, respondent filed a petition for a writ of habeas corpus under 28 U. S. C. §2254. The District Court dismissed the petition, finding that respondent had understood the consequences of his guilty plea, that he had received the effective assistance of counsel, and that because the evidence did not establish that respondent had detrimentally relied on the prosecutor’s first proposed plea agreement, respondent had no right to enforce it. The Court of Appeals reversed, 707 F. 2d 323 (CA8 1983), over Judge John R. Gibson’s dissent. The majority concluded that “fairness” precluded the prosecution’s withdrawal of a plea proposal once accepted by respondent. Because of a conflict in the Circuits, coupled with our concern that an important constitutional question had been wrongly decided, we granted certiorari, 464 U. S. 1017 (1983). We now reverse.

Respondent can obtain federal habeas corpus relief only if his custody is in violation of the Federal Constitution. A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. Only after respondent pleaded guilty was he convicted, and it is that conviction which gave rise to the deprivation of respondent’s liberty at issue here.

It is well settled that a voluntary and intelligent plea of guilty made by an accused person, who has been advised by competent counsel, may not be collaterally attacked. It is also well settled that plea agreements are consistent with the requirements of voluntariness and intelligence — because each side may obtain advantages when a guilty plea is exchanged for sentencing concessions, the agreement is no less voluntary than any other bargained-for exchange. It is only when the consensual character of the plea is called into question that the validity of a guilty plea may be impaired. In Brady v. United States, 397 U. S. 742 (1970), we stated the applicable standard:

“‘[A] plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, prosecutor, or his own counsel, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor’s business (e. g. bribes).”’ Id., at 755 (quoting Shelton v. United States, 246 F. 2d 571, 572, n. 2 (CA5 1957) (en banc) (in turn quoting 242 F. 2d 101, 115 (Tuttle, J., dissenting to panel opinion)), rev’d on other grounds, 356 U. S. 26 (1958).

Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. Santobello v. New York, 404 U. S. 257 (1971), illustrates the point. We began by acknowledging that the conditions for a valid plea “presuppose fairness in securing agreement between an accused and a prosecutor. . . . The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.” Id., at 261-262. It follows that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand: “[W]hen a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id., at 262.

Santobello demonstrates why respondent may not successfully attack his plea of guilty. Respondent’s plea was in no sense induced by the prosecutor’s withdrawn offer; unlike Santobello, who pleaded guilty thinking he had bargained for a specific prosecutorial sentencing recommendation which was not ultimately made, at the time respondent pleaded guilty he knew the prosecution would recommend a 21-year consecutive sentence. Respondent does not challenge the District Court’s finding that he pleaded guilty with the advice of competent counsel and with full awareness of the consequences — he knew that the prosecutor would recommend and that the judge could impose the sentence now under attack. Respondent’s plea was thus in no sense the product of governmental deception; it rested on no “unfulfilled promise” and fully satisfied the test for voluntariness and intelligence.

Thus, because it did not impair the voluntariness or intelligence of his guilty plea, respondent’s inability to enforce the prosecutor’s offer is without constitutional significance. Neither is the question whether the prosecutor was negligent or otherwise culpable in first making and then withdrawing his offer relevant. The Due Process Clause is not a code of ethics for prosecutors; its concern is with the manner in which persons are deprived of their liberty. Here respondent was not deprived of his liberty in any fundamentally unfair way. Respondent was fully aware of the likely consequences when he pleaded guilty; it is not unfair to expect him to live with those consequences now.

The judgment of the Court of Appeals is

Reversed.

       The petition was referred to a Magistrate who conducted an evidentiary-hearing and made recommended findings of fact and conclusions of law, which the District Court subsequently adopted.

       Compare Virgin Islands v. Scotland, 614 F. 2d 360 (CA3 1980), and United States v. Greenman, 700 F. 2d 1377 (CA11), cert. denied, 464 U. S. 992 (1983), with Cooper v. United States, 594 F. 2d 12 (CA4 1979).

       This ease is not moot despite the fact that respondent has been paroled. Respondent remains in the “custody” of the State, see Jones v. Cunningham, 371 U. S. 236 (1963); see generally Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 300-302 (1984); Hensley v. Municipal Court, 411 U. S. 345 (1973); and whether respondent must serve the sentence now under attack consecutively to his prior sentences will affect the date at which his parole will expire under state law, see Ark. Stat. Ann. § 43-2807(c) (Supp. 1983). Respondent’s challenge to the duration of his custody therefore remains live.

         E. g., Townsend v. Sain, 372 U. S. 293, 312 (1963). In pertinent part, the habeas statute provides:
      “The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U. S. C. § 2254(a).

       Under Arkansas law, there is no entitlement to have the trial court impose a recommended sentence since a negotiated sentence recommendation does not bind the court, see Varnedare v. State, 264 Ark. 596, 599, 573 S. W. 2d 57, 60 (1978); Marshall v. State, 262 Ark. 726, 561 S. W. 2d 76 (1978); Ark. Rule Crim. Proc. 25.3(c); there is a critical difference between an entitlement and a mere hope or expectation that the trial court will follow the prosecutor’s recommendation, see Olim v. Wakinekona, 461 U. S. 238, 248-251 (1983); Jago v. Van Curen, 454 U. S. 14, 19-21 (1981) (per curiam); Connecticut Board of Pardons v. Dumschat, 452 U. S. 458, 465-467 (1981); Meachum v. Fano, 427 U. S. 215, 226-227 (1976).

       See Boykin v. Alabama, 395 U. S. 238 (1969); Kercheval v. United States, 274 U. S. 220, 223 (1927).

       See Tollett v. Henderson, 411 U. S. 258, 266-267 (1973); North Carolina v. Alford, 400 U. S. 25, 31 (1970); Parker v. North Carolina, 397 U. S. 790, 797-798 (1970); McMann v. Richardson, 397 U. S. 759, 772 (1970); Brady v. United States, 397 U. S. 742, 747-748 (1970). See also Henderson v. Morgan, 426 U. S. 637 (1976); Menna v. New York, 423 U. S. 61 (1975) (per curiam).

       See Corbitt v. New Jersey, 439 U. S. 212, 219-220, 222-223 (1978); Bordenkircher v. Hayes, 434 U. S. 357, 363 (1978); Blackledge v. Allison, 431 U. S. 63, 71 (1977); Santobello v. New York, 404 U. S. 257, 260-261 (1971). For example, in Brady v. United States we wrote:
      “For a defendant who sees slight possibility of acquittal, the advantages of pleading guilty and limiting the probable penalty are obvious — his exposure is reduced, the correctional processes can begin immediately, and the practical burdens of a trial are eliminated. For the State there are also advantages — the more promptly imposed punishment after an admission of guilt may more effectively attain the objectives of punishment; and with the avoidance of trial, scarce judicial and prosecutorial resources are conserved for those cases in which there is a substantial issue of the defendant’s guilt or in which there is substantial doubt that the State can sustain its burden of proof. It is this mutuality of advantage that perhaps explains the fact that at present well over three-fourths of the criminal convictions in this country rest on pleas of guilty, a great many of them no doubt motivated at least in part by the hope or assurance of a lesser penalty than might be imposed if there were a guilty verdict after a trial to judge or jury.” 397 U. S., at 752 (footnotes omitted).

       See also 404 U. S., at 266 (Douglas, J., concurring); id., at 269 (Marshall, J., concurring in part and dissenting in part).

       Respondent suggests that the prosecutor’s withdrawal of the initial offer undermined his confidence in defense counsel, in violation of his Sixth Amendment right to counsel. This argument is simply at odds with reason. Prosecutors often come to view an offense more seriously during the course of pretrial investigation for reasons entirely unrelated to what defense counsel has done or is likely to do. See United States v. Goodwin, 457 U. S. 368, 381 (1982). We fail to see how an accused could reasonably attribute the prosecutor’s change of heart to his counsel any more than he could have blamed counsel had the trial judge chosen to reject the agreed-upon recommendation, or, for that matter, had he gone to trial and been convicted. The District Court and the Court of Appeals concluded that counsel effectively advised respondent; that is all the Constitution requires. See United States v. Cronic, 466 U. S. 648, 656-657, n. 19 (1984); Tollett v. Henderson, 411 U. S., at 266-268; Parker v. North Carolina, 397 U. S., at 797-798; McMann v. Richardson, 397 U. S., at 770-771.

       Indeed, even if respondent’s plea were invalid, Santobello expressly declined to hold that the Constitution compels specific performance of a broken prosecutorial promise as the remedy for such a plea; the Court made it clear that permitting Santobello to replead was within the range of constitutionally appropriate remedies. See 404 U. S., at 262-263; see also
        id., at 268-269 (Marshall, J., concurring in part and dissenting in part). It follows that respondent’s constitutional rights could not have been violated. Because he pleaded after the prosecution had breached its “promise” to him, he was in no worse position than Santobello would have been had he been permitted to replead.

         Santobello itself rejected the relevance of prosecutorial culpability: “It is now conceded that the promise to abstain from a recommendation was made, and at this stage the prosecution is not in a good position to argue that its inadvertent breach of agreement is immaterial. The staff lawyers in a prosecutor’s office have the burden of ‘letting the left hand know what the right hand is doing’ or has done. That the breach of agreement was inadvertent does not lessen its impact.” Id., at 262. Cf. United States v. Agurs, 427 U. S. 97, 110 (1976).


text:
    FRANCHISE TAX BOARD OF CALIFORNIA v. UNITED STATES POSTAL SERVICE
    No. 83-372.
    Argued April 17, 1984
    Decided June 11, 1984

      Patti S. Kitching, Deputy Attorney General of California, argued the cause for appellant. With her on the briefs were John K. Van De Kamp, Attorney General, and Edmond B. Mamer, Deputy Attorney General.

      David A. Strauss argued the cause for appellee. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Getter, and Joan M. Bernott.

      A brief of amici curiae urging reversal was filed for the State of Delaware et al. by Stephen H. Sachs, Attorney General of Maryland, and Diane G. Motz, Assistant Attorney General, Charles M. Oberly III, Attorney General of Delaware, and John Fidele, Deputy Attorney General, Hubert H. Humphrey III, Attorney General of Minnesota, and Kent G. Harbison, Chief Deputy Attorney General, Dave Frohnmayer, Attorney General of Oregon, and William F. Gary, Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General of Pennsylvania, and Jay A. Molluso, Chief Deputy Attorney General.

   Justice Stevens

delivered the opinion of the Court.

Appellant, the Franchise Tax Board of California, determined that four employees of appellee United States Postal Service were delinquent in the payment of their state income taxes. The Board served process on the Postal Service directing it to withhold the amounts of the delinquencies from the employees’ wages, pursuant to § 18817 of the California Revenue and Taxation Code, which authorizes the Board to require any employer to withhold delinquent taxes from an employee’s salary and transfer those funds to the Board. The question presented is whether the Postal Service was obligated to honor these “orders to withhold.”

I — I

When the Postal Service refused to comply with the four orders to withhold, the Board filed this action in the United States District Court for the Central District of California asserting that the Service was liable under the Revenue and Taxation Code for failing to honor the orders, and invoking federal jurisdiction pursuant to 39 U. S. C. § 409(a) and 28 U. S. C. § 1339. The District Court entered summary judgment for the Postal Service. It held that 5 U. S. C. §5517, which authorized the agreement that California and the United States had made regarding the withholding of state income taxes from the pay of federal employees, applies only to withholding of anticipated tax liabilities and not to delinquent liabilities. The Court of Appeals affirmed, agreeing that 5 U. S. C. § 5517 excused the Service from complying with the orders. Employment Development Department v. United States Postal Service, 698 F. 2d 1029 (CA9.1983). The Court of Appeals rejected the Board’s argument that § 5517 did not prohibit issuance of the orders, and also rejected the argument that the provision in 39 U. S. C. § 401(1) declaring that the Postal Service may “sue and be sued in its official name” had waived any sovereign immunity that the Service might possess. This appeal followed.

In this Court, the Postal Service does not argue that 5 U. S. C. § 5517 and the agreement pursuant thereto between the United States and California prohibit the issuance of an order to withhold against the Postal Service with respect to delinquent tax liabilities of its employees. To the contrary, the Postal Service expressly concedes that it is amenable to judicial process and could be required to honor a garnishment order requiring it to withhold the salary of a federal employee in order to satisfy a delinquent tax liability if issued by a state court. Instead, the Postal Service contends that although it must obey a judicial order, it retains sovereign immunity with respect to state administrative tax levies. It argues that while the provision that the Postal Service can “sue and be sued in its official name” waives immunity from suit, it does not apply to administrative proceedings.

The Board does not dispute the proposition that, unless waived, sovereign immunity prevents the creditor of a federal employee from collecting a debt through a judicial order requiring the United States to garnishee the employee’s salary. See Buchanan v. Alexander, 4 How. 20 (1845). Rather, it places its primary reliance on 39 U. S. C. § 401(1), which indicates that the Postal Service may “sue and be sued.” Thus the question in this case is whether this statutory waiver of sovereign immunity extends to the Board’s orders to withhold.

This Court construed a statute providing that an agency created by Congress — the Federal Housing Authority — was empowered “to sue and be sued,” in FHA v. Burr, 309 U. S. 242 (1940). In Burr the question presented was whether the agency had to honor a garnishment order issued by a state court. The Court began by observing: “Since consent to ‘sue and be sued’ has been given by Congress, the problem here merely involves a determination of whether or not garnishment comes within the scope of that authorization.” Id., at 244. It continued:

“[W]e start from the premise that such waivers by Congress of governmental immunity in case of such federal instrumentalities should be liberally construed. This policy is in line with the current disfavor of the doctrine of governmental immunity from suit, as evidenced by the increasing tendency of Congress to waive the immunity where federal governmental corporations are concerned. . . . Hence, when Congress establishes such an agency, authorizes it to engage in commercial and business transactions with the public, and permits it to ‘sue and be sued,’ it cannot be lightly assumed that restrictions on that authority are to be implied. Rather if the general, authority to ‘sue and be sued’ is to be delimited by implied exceptions, it must be clearly shown that certain types of suits are not consistent with the statutory or constitutional scheme, that an implied restriction of the general authority is necessary to avoid grave interference with the performance of a governmental function, or that for other reasons it was plainly the purpose of Congress to use the ‘sue and be sued’ clause in a narrow sense. In the absence of such showing, it must be presumed that when Congress launched a governmental agency into the commercial world and endowed it with authority to ‘sue or be sued,’ that agency is not less amenable to judicial process than a private enterprise under like circumstances would be.” Id., at 245 (footnote omitted).

The Court then explained why garnishment orders fell within the scope of the statutory waiver of sovereign immunity:

“Clearly the words ‘sue and be sued’ in their normal connotation embrace all civil process incident to the commencement or continuance of legal proceedings. Garnishment and attachment commonly are part and parcel of the process, provided by statute, for the collection of debt. . . . [Hjowever it may be denominated, whether legal or equitable, and whenever it may be available, whether prior to or after final judgment, garnishment is a well-known remedy available to suitors. To say that Congress did not intend to include such civil process in the words 'sue and be sued’ would in general deprive suits of some of their efficacy.” Id., at 245-246 (footnotes and citation omitted).

If anything, the waiver of sovereign immunity is broader here than it was in Burr. In passing the Postal Reorganization Act of 1970, 84 Stat. 719, Congress not only indicated that the Postal Service could “sue and be sued,” 39 U. S. C. §401(1), but also that it had the power “to settle and compromise claims by or against it,” §401(8), and that “[t]he provisions of chapter 171 and all other provisions of title 28 relating to tort claims shall apply to tort claims arising out of activities of the Postal Service.” § 409(c). Neither of these provisions would have been necessary had Congress intended to preserve sovereign immunity with respect to the Postal Service. Congress also indicated that it wished the Postal Service to be run more like a business than had its predecessor, the Post Office Department.

Here, the Board has employed the same “well-known” remedy that was held to be within the scope of a sue-and-be-sued clause in Burr. Moreover, as was true of the agency involved in Burr, Congress has “launched [the Postal Service] into the commercial world”; hence under Burr not only must we liberally construe the sue-and-be-sued clause, but also we must presume that the Service’s liability is the same as that of any other business. No showing has been made to overcome that presumption. Since an order to withhold cannot issue unless the Postal Service owes the employee wages, the Service is nothing but a stakeholder; the order to withhold has precisely the same effect on its ability to operate efficiently as it does on that of any other employer subject to the California statute. It creates no greater inconvenience than did the garnishment order that this Court held could issue against a federal agency in Burr. Indeed, the Board’s order to withhold contains the same direction as did the writ of garnishment served on the FHA in Burr.

The Postal Service attempts to distinguish Burr by observing that the waiver of sovereign immunity in § 401(1) is limited to cases in which it has been “sued,” and then arguing that because the process that has issued here is that of an administrative agency rather than a court, the Service has not been “sued” within the meaning of §401(1). This crabbed construction of the statute overlooks our admonition that waiver of sovereign immunity is accomplished not by “a ritualistic formula”; rather intent to waive immunity and the scope of such a waiver can only be ascertained by reference to underlying congressional policy. Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381, 389 (1939). In this case, at the level of policy and practicality it is illogical to conclude that Congress would have differentiated between process issued by the Board and that of a court, for even if a court issued the orders to withhold, neither the Postal Service nor its employees would be in a materially different position.

The operation of California’s tax collection process makes it clear that there is no meaningful difference between an order to withhold issued by the Board and a garnishment order issued by a court. Under state law an assessment that has been validly made against a taxpayer operates to impose an absolute liability for the tax that may not be contested except in an action seeking refund of amounts already paid. Indeed state law is unequivocal in requiring employers to honor orders to withhold — no defense is permitted. Thus, a California tax assessment, like a federal tax assessment, operates in a way that is functionally indistinguishable from the judgment of a court of law; it creates an absolute legal obligation to make payment by a date certain:

“Once the tax is assessed the taxpayer will owe the sovereign the amount when the date fixed by law for payment arrives. Default in meeting the obligations calls for some procedure whereby payment can be enforced. The statute might remit the Government to an action at law wherein the taxpayer could offer such defense as he had. A judgment against him might be collected by the levy of an execution. But taxes are the life-blood of government, and their prompt and certain availability an imperious need. Time out of mind, therefore, the sovereign has resorted to more drastic means of collection. The assessment is given the force of a judgment, and if the amount assessed is not paid when due, administrative officials may seize the debtor’s property to satisfy the debt.” Bull v. United States, 295 U. S. 247, 259-260 (1935).

Thus, in operation and effect the Board’s orders to withhold are identical to the judgment of a court. They give rise to a binding legal obligation to pay the assessed amounts; the taxpayer may no more dispute this liability than the liability under any other judgment. Neither the Postal Service nor its employees would obtain any additional protections from a requirement that such orders be issued by a court, since the liability cannot be contested until after the tax has been paid and a refund action brought. At the same time, construing the statute to require the issuance of judicial process before the Postal Service need honor an order to withhold would create unwarranted disruption of the State’s machinery for collection of delinquent taxes, while simultaneously depriving the orders of “some of their efficacy” — a result inconsistent with Burr.

There is thus no reason to believe that Congress intended to impose a meaningless procedural requirement that an order to withhold be issued by a court. To distinguish between administrative and judicial process would be to take an approach to sovereign immunity that this Court rejected more than 40 years ago — “to impute to Congess a desire for incoherence in a body of affiliated enactments and for drastic legal differentiation where policy justifies none.” Keifer & Keifer, 306 U. S., at 394. In cases of this kind, we believe Congress intended the Postal Service to be treated similarly to other self-sustaining commercial ventures. Accordingly, we hold that when administrative process of the type employed by the Board issues against the Postal Service, it has been “sued” within the meaning of § 401(1), and must respond to that process.

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

It is so ordered.

       The statute provides in pertinent part:
      “The Franchise Tax Board may by notice, served personally or by first-class mail, require any employer . . . having in [its] possession, or under [its] control, any credits or other personal property or other things of value, belonging to a taxpayer ... to withhold, from such credits or other personal property or other things of value, the amount of any tax, interest, or penalties due from the taxpayer . . . and to transmit the amount withheld to the Franchise Tax Board at such times as it may designate. . . .” Cal. Rev. & Tax. Code Ann. § 18817 (West 1983).

       See Cal. Rev. & Tax. Code Ann. § 18818 (West 1983) (“Any employer or person failing to withhold the amount due from any taxpayer and to transmit the same to the Franchise Tax Board after service of a notice pursuant to Section 18817 is liable for such amounts”).

       Section 1339 vests in district courts jurisdiction over any action arising under an Act of Congress relating to the Postal Service. Section 409(a) provides:
      “Except as provided in section 3628 of this title, the United States district courts shall have original but not exclusive jurisdiction over all actions brought by or against the Postal Service. Any action brought in a State court to which the Postal Service is a party may be removed to the appropriate United States district court. . . .”

       In the alternative, the District Court held that the state statute obligating employers to honor orders to withhold did not apply to the Postal Service.

       However, the Court of Appeals disagreed with the District Court’s construction of the state statute, concluding that it did authorize issuance of the orders to withhold to the Postal Service.

       Judge Sehroeder dissented, arguing that § 401(1) constituted a waiver of the Postal Service’s immunity from process, including the type of process embodied in the orders to withhold.

       While the Court of Appeals did not say in so many words that §§ 18817 and 18818 could not constitutionally be applied to the Postal Service, it did expressly hold that the state statute required the Postal Service to honor the orders to withhold. Therefore, a necessary predicate to the Court of Appeals’ holding is that enforcement of the state statute would be inconsistent with federal law and hence invalid under the Supremacy Clause of the Constitution. See California v. Grace Brethren Church, 457 U. S. 393, 405-407 (1982); United States v. Clark, 445 U. S. 23, 26, n. 2 (1980). Accordingly, we have jurisdiction over this appeal under 28 U. S. C. § 1254(2). See City of Detroit v. Murray Corp., 355 U. S. 489 (1958).

       As the text of §5517 makes clear, it simply authorizes withholding agreements that otherwise the United States might be without statutory authority to enter, and limits the waiver of sovereign immunity with respect to these agreements. It does not concern the scope of the Postal Service’s amenability to process under 39 U. S. C. § 401(1):

        “(a) When a State statute—
      “(1) provides for the collection of a tax either by imposing on employers generally the duty of withholding sums from the pay of employees and making returns of the sums to the State, or by granting to employers generally the authority to withhold sums from the pay of employees if any employee voluntarily elects to have such sums withheld; and
      “(2) imposes the duty or grants the authority to withhold generally with respect to the pay of employees who are residents of the State;
      the Secretary of the Treasury, under regulations prescribed by the President, shall enter into an agreement with the State within 120 days of a request for agreement from the proper State official. The agreement shall provide that the head of each agency of the United States shall comply with the requirements of the State withholding statute in the case of employees of the agency who are subject to the tax and whose regular place of Federal employment is within the State with which the agreement is made. . . .
      “(b) This section does not give the consent of the United States to the application of a statute which imposes more burdensome requirements on the United States than on other employers, or which subjects the United States or its employees to a penalty or liability because of this section. An agency of the United States may not accept pay from a State for services performed in withholding State income taxes from the pay of the employees of the agency.”

       See Brief for Appellee 13-15. In fact, the Postal Service’s regulations provide for withholding of employees’ wages when garnished by court order, United States Postal Service, Financial Management Manual § 431.1(g) (1978); see 39 CFR § 211.2(a)(2) (1983).

       Accord, Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U. S. 81, 84-85 (1941); United States v. Shaw, 309 U. S. 495, 501 (1940). See also Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 280-281 (1959); Brady v. Roosevelt S.S. Co., 317 U. S. 575, 580 (1943). See generally National City Bank of New York v. Republic of China, 348 U. S. 356, 359 (1955) (“[E]ven the immunity enjoyed by the United States as territorial sovereign is a legal doctrine which has not been favored by the test of time. It has increasingly been found to be in conflict with the growing subjection of governmental action to the moral judgment”). Justice Frankfurter, writing for a unanimous Court in the Term prior to Burr, foreshadowed Burr’s approach to waivers of sovereign immunity:
      “Congress has provided for not less than forty of such corporations discharging governmental functions, and without exception the authority to sue-and-be-sued was included. Such a firm practice is partly an indication of the present climate of opinion which has brought governmental immunity from suit into disfavor, partly it reveals a definite attitude on the part of Congress which should be given hospitable scope.” Keifer & Keifer v. Reconstruction Finance Corp., 306 U. S. 381, 390-391 (1939) (footnotes omitted).

       Chapter 171 of Title 28 governs procedure under the Federal Tort Claims Act, 28 U. S. C. §§2671-2680.

       The nearly universal conclusion of the lower federal courts has been that the Postal Reorganization Act constitutes a waiver of sovereign immunity. See Insurance Co. of North America v. United, States Postal Service, 675 F. 2d 756, 758 (CA5 1982); Portmann v. United States, 674 F. 2d 1155, 1168 (CA7 1982); Associates Financial Services of America, Inc. v. Robinson, 582 F. 2d 1 (CA5 1978) (per curiam); Beneficial Finance Co. of New York, Inc. v. Dallas, 571 F. 2d 125 (CA2 1978); General Electric Credit Corp. v. Smith, 565 F. 2d 291 (CA4 1977) (per curiam); Goodman’s Furniture Co. v. United States Postal Service, 561 F. 2d 462 (CA3 1977); May Department Stores Co. v. Williamson, 549 F. 2d 1147 (CA8 1977); Standard Oil Division v. Starks, 528 F. 2d 201 (CA7 1975) (per curiam); Kennedy Electric Co. v. United States Postal Service, 508 F. 2d 954, 957 (CA10 1974); Butz Engineering Corp. v. United States, 204 Ct. Cl. 561, 566-567, 499 F. 2d 619, 621-622 (1974); Milner v. Bolger, 546 F. Supp. 375 (ED Cal. 1982); Lutz v. United States Postal Service, 538 F. Supp. 1129, 1132 (EDNY 1982); Lincoln National Bank & Trust Co. v. Marotta, 442 F. Supp. 49 (NDNY 1977); Bank of Virginia v. Tompkins, 434 F. Supp. 787 (ED Va. 1977); United Virginia Bank/National v. Eaves, 416 F. Supp. 518 (ED Va. 1976); Iowa-Des Moines National Bank v. United States, 414 F. Supp. 1393 (SD Iowa 1976); Colonial Bank v. Broussard, 403 F. Supp. 686 (ED La. 1975). But see Nolan v. Woodruff, 68 F. R. D. 660 (DC 1975); Drs. Macht, Podare & Associates, Inc. v. Girton, 392 F. Supp. 66 (SD Ohio 1975); Lawhorn v. Lawhorn, 351 F. Supp. 1399 (SD W. Va. 1972); Detroit Window Cleaners Local 139 Insurance Fund v. Griffin, 345 F. Supp. 1343 (ED Mich. 1972).

       See H. R. Rep. No. 91-1104, pp. 5,11-12 (1970); 116 Cong. Rec. 19846 (1970) (remarks of Rep. Corbett); id., at 20226 (remarks of Rep. Udall). Perhaps the clearest practical expression of this intent was Congress’ decision to create a new postal rate structure designed to make the Postal Service self-supporting. See 39 U. S. C. § 3621; H. R. Rep. No. 91-1104, pp. 16-17 (1970). See also National Assn, of Greeting Card Publishers v. United States Postal Service, 462 U. S. 810, 813-814 (1983).

       In Burr, the Court rejected the argument that the burden of responding to garnishment actions would interfere with its ability to perform its functions. See 309 U. S., at 249. Moreover, the burden upon the Postal Service of responding to the Board’s orders to withhold is no greater than the burden it would face if it had to comply with a similar order issued by a state court, which the Postal Service concedes would not be barred by sovereign immunity. It should be noted that the Postal Service cannot be held liable for honoring the orders to withhold, see Cal. Tax. & Rev. Code Ann. § 18819 (West 1983).

       Accord, Reconstruction Finance Corp. v. J. G. Menihan Corp., 312 U. S., at 84. See also Federal Land Bank v. Priddy, 295 U. S. 229 (1935) (in order to interpret waiver of sovereign in a practical manner, sue-and-be-sued clause construed to extend to permit prejudgment attachment). In Keifer & Keifer, the Court wrote:
      “Therefore, the government does not become the conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. For more than a hundred years corporations have been used as agencies for doing work of government. Congress may create them ‘as appropriate means of executing the powers of government, as, for instance, ... a railroad corporation for the purpose of promoting commerce among the States.’ But this would not confer on such corporations legal immunity even if the conventional to-sue-and-be-sued clause were omitted. In the context of modern thought and practice regarding the use of corporate facilities, such a clause is not a ritualistic formula which alone can engender liability like unto indispensable words of early common law, such as ‘warrantizio’ or ‘to A and his heirs,’ for which there were no substitutes and without which desired legal consequences could not be wrought.
      “Congress may, of course, endow a governmental corporation with the government’s immunity. But always the question is: has it done so? This is our present problem. Has Congress endowed Regional with immunity in the circumstances which enveloped its creation? It is not a textual problem; for Congress has not expressed its will in words. Congress may not even have had any consciousness of intention. The Congressional will must be divined, and by a process of interpretation which, in effect, is the ascertainment of policy immanent not merely in the single statute from which flow the rights and responsibilities of Regional, but in a series of statutes utilizing corporations for governmental purposes and drawing significance from dominant contemporaneous opinion regarding the immunity of government agencies from suit.” 306 U. S., at 388-389 (citations omitted) (quoting Luxton v. North River Bridge Co., 153 U. S. 525, 529 (1894)).

       California law requires that a taxpayer receive notice and opportunity for hearing prior to the assessment of a deficiency, both before the Board and then before the State Board of Equalization through an administrative appeal. See Cal. Rev. & Tax. Code Ann. §§ 18581-18602 (West 1983). No question is raised as to the constitutional sufficiency of the notice and opportunity for hearing that the four Postal Service employees received. See generally Commissioner v. Shapiro, 424 U. S. 614, 629-632, and m 12 (1976).

       Cal. Rev. & Tax. Code Ann. § 18819 (West 1983) (“Any employer or person required to withhold and transmit any amount pursuant to this article shall comply with the requirement without resort to any legal or equita ble action in a court of law or equity”); see Kanarek v. Davidson, 85 Cal. App. 3d 341, 346, 148 Cal. Rptr. 86, 89 (1978). California courts will not entertain a suit contesting the assessment of a tax until after the taxpayer has exhausted his administrative refund remedy. See Aronoff v. Franchise Tax Board, 60 Cal. 2d 177, 180-181, 383 P. 2d 409, 411 (1963). Moreover, California law prohibits the issuance of an injunction restraining the assessment or collection of any tax, Cal. Const., Art. XIII, § 32; Cal. Rev. & Tax. Code § 19081 (West 1983); see California v. Grace Brethren Church, 457 U. S., at 400-401, n. 10, 415.

       See G. M. Leasing Corp. v. United States, 429 U. S. 338, 352, n. 18 (1977); Palmer v. McMahon, 133 U. S. 660, 669 (1890); Hager v. Reclamation District No. 108, 111 U. S. 701, 710 (1884). See also Randall v. Franchise Tax Board, 453 F. 2d 381 (CA9 1971); Greene v. Franchise Tax Board, 27 Cal. App. 3d 38, 44, 103 Cal. Rptr. 483, 486-487 (1972).

       The Postal Service argues that there is a significant disftinction between administrative and judicial garnishment because it can remove the latter proceeding, unlike the former, to federal court under 39 U. S. C. § 409(a). However, as an initial matter it is far from clear that the Postal Service may remove a garnishment action when it is merely a stakeholder and the real party in interest is the employee. See Jones Store Co. v. Hammons, 424 F. Supp. 494 (WD Mo. 1977); Armstrong Cover Co. v. Whitfield, 418 F. Supp. 972 (ND Ga. 1976). See also Murray v. Murray, 621 F. 2d 103 (CA5 1980). Even assuming that such a case is removable, the facts of this case demonstrate the fallacy in the Postal Service’s argument. If the Service feels it has a meritorious defense to the order to withhold, though it is hard to see how it could, see supra, at 522-523, it remains free to refuse to honor the order to withhold and force the Board to file suit against it, as it did here, or else it can initiate its own lawsuit against the Board under § 409(a).

       See generally California v. Grace Brethren Church, 457 U. S., at 410-411; Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100 (1981); Rosewell v. LaSalle National Bank, 450 U. S. 503, 522 (1981); Great Lakes Co. v. Huffman, 319 U. S. 293, 298 (1943).

       In Keifer & Keifer, the Court held that a Regional Agricultural Credit Corporation, a Government corporation, was not protected by sovereign immunity even though its authorizing legislation contained no sue-and-be-sued clause; since its parent corporation and a wide variety of similarly situated entities did not have immunity, the Court concluded that Congress could not have intended a different result with respect to the regional corporation. See 306 U. S., at 392-394. See also Federal Land Bank v. Priddy, 295 U. S., at 235-236.

       The Postal Service argues that Congress must have intended the Board to employ the “piggyback” provisions for collecting delinquent state tax liabilities found in 26 U. S. C. §§6361-6365, since they were passed to address this problem. However, nothing in that statute, which permits States to use the summary collection procedures of the Internal Revenue Service, limits the power of States to use any other available procedure. The Postal Service also argues that when Congress enacted 5 U. S. C. § 5520 in 1974, providing for the United States to enter withholding agreements for city and county income taxes, it must have assumed that the Service retained its sovereign immunity. Section 5520 is, however, no more relevant to this case than § 5517; both provide the Secretary of the Treasury with explicit authority to enter into withholding agreements which he might not otherwise be able to make; neither addresses the scope of the Service’s sovereign immunity. See n. 8, supra. Moreover, the Postal Service’s position that Congress intended use of only §§ 5517, 5520, and the piggyback provisions of the Internal Revenue Code to collect state taxes is inconsistent with the Service’s position that it has no immunity from a judicial garnishment order. In light of our disposition, we need not reach the Board’s contention that the Buck Act, 4 U. S. C. §§ 105-110, requires the Postal Service to honor the orders to withhold.