source: Caselaw Access Project

author:
Justice Souter
      Justice Scalia, Justice White, Justice Stevens,

license: Public Domain

text:
    UNITED STATES v. THOMPSON/CENTER ARMS CO.
    No. 91-164.
    Argued January 13, 1992
    Decided June 8, 1992

      Souter, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and O’Connor, J., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined, post, p. 619. White, J., filed a dissenting opinion, in which Blackmun, Stevens, and Kennedy, JJ., joined, post, p. 623. Stevens, J., filed a dissenting opinion, post, p. 625.

      James A. Feldman argued the cause for the United States. On.fhe briefs were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, Kent L. Jones, Gilbert S. Rothenberg, and Steven W. Parks.

      Stephen P. Halbrook argued the cause and filed a brief for respondent.

         Richard E. Gardiner filed a brief for Senator Larry E. Craig et al. as amici curiae urging affirmance.

   Justice Souter

announced the judgment of the Court and delivered an opinion, in which The Chief Justice and Justice O’Connor join.

Section 5821 of the National Firearms Act (NFA or Act), see 26 U. S. C. § 5849, levies a tax of $200 per unit upon anyone “making” a “firearm” as that term is defined in the Act. Neither pistols nor rifles with barrels 16 inches long or longer are firearms within the NFA definition, but rifles with barrels less than 16 inches long, known as short-barreled rifles, are. § 5846(a)(3). This case presents the question whether a gun manufacturer “makes” a short-barreled rifle when it packages as a unit a pistol together with a kit containing a shoulder stock and a 21-inch barrel, permitting the pistol’s conversion into an unregulated long-barreled rifle, or, if the pistol’s barrel is left on the gun, a short-barreled rifle that is regulated. We hold that the statutory language may not be construed to require payment of the tax under these facts.

I

The word “firearm” is used as a term of art in the NFA. It means, among other things, “a rifle having a barrel or barrels of less than 16 inches in length . . . .” § 5845(a)(3). “The term ‘rifle’ means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.” § 5845(c).

The consequence of being the maker of a firearm are serious. Section 5821(a) imposes a tax of $200 “for each firearm made,” which “shall be paid by the person making the firearm,” § 5821(b). Before one may make a firearm, one must obtain the approval of the Secretary of the Treasury, § 5822, and §5841 requires that the “manufacturer, importer, and maker . . . register each firearm he manufactures, imports, or makes” in a central registry maintained by the Secretary of the Treasury. A maker who fails to comply with the NFA’s provisions is subject to criminal penalties of up to 10 years’ imprisonment and a fine of up to $10,000, or both, which may be imposed without proof of willfulness or knowledge. §5871.

Respondent Thompson/Center Arms Company manufactures a single-shot pistol called the “Contender,” designed so that its handle and barrel can be removed from its “receiver,” the metal frame housing the trigger, hammer, and firing mechanism. See 27 CFR § 179.11 (1991) (definition of frame or receiver). For a short time in 1985, Thompson/Center also manufactured a carbine-conversion kit consisting of a 21-inch barrel, a rifle stock, and a wooden fore-end. If one joins the receiver with the conversion kit’s rifle stock, the 21-inch barrel, and the rifle fore-end, the product is a carbine rifle with a 21-inch barrel. If, however, the shorter, pistol-length barrel is not removed from the receiver when the rifle stock is added, one is left with a 10-inch or “short-barreled” carbine rifle. The entire conversion, from pistol to long-barreled rifle takes only a few minutes; conversion to a short-barreled rifle takes even less time.

In 1985, the Bureau of Alcohol, Tobacco and Firearms advised Thompson/Center that when its conversion kit was possessed or distributed together with the Contender pistol, the unit constituted a firearm subject to the NFA. Thdmpson/Center responded by paying the $200 tax for a single such firearm, and submitting an application for permission under 26 U. S. C. § 5822 “to make, use, and segregate as a single unit” a package consisting of a serially numbered pistol, together with an attachable shoulder stock and a 21-inch barrel. Thompson/Center then filed a refund claim. After more than six months had elapsed without action on it, the company brought this suit in the United States Claims Court under the Tucker Act, 28 U. S. C. § 1491, arguing that the unit registered was not a firearm within the meaning of the NFA because Thompson/Center had not assembled a short-barreled rifle from its components. The Claims Court entered summary judgment for the Government, concluding that the Contender pistol together with its conversion kit is a firearm within the meaning of the NFA. 19 Cl. Ct. 725 (1990).

The Court of Appeals for the Federal Circuit reversed, holding that a short-barreled rifle “actually must be assembled” in order to be “made” within the meaning of the NFA. 924 F. 2d 1041, 1043 (1991). The Court of Appeals expressly declined to follow the decision of the Court of Appeals for the Seventh Circuit in United States v. Drasen, 845 F. 2d 731, cert. denied, 488 U. S. 909 (1988), which had held that an unassembled “complete parts kit” for a short-barreled rifle was in fact a short-barreled rifle for purposes of the NFA. We granted certiorari to resolve this conflict. 502 U. S. 807 (1991).

II

The NFA provides that “[t]he term ‘make’, and the various derivatives of such word, shall include manufacturing (other than by one qualified to engage in such business under this chapter), putting together, altering, any combination of these, or otherwise producing a firearm.” 26 U. S. C. § 5845(i). But the provision does not expressly address the question whether a short-barreled rifle can be “made” by the aggregation of finished parts that can readily be assembled into one. The Government contends that assembly is not necessary; Thompson/Center argues that it is.

A

The Government urges us to view the shipment of the pistol with the kit just as we would the shipment of a bicycle that requires some home assembly. “The fact that a short-barrel rifle, or any other ‘firearm,’ is possessed or sold in a partially unassembled state does not remove it from regulation under the Act.” ■ Brief for United States 6.

The Government’s analogy of the partially assembled bicycle to the packaged pistol and conversion kit is not, of course, exact. While each example includes some unassembled parts, the crated bicycle parts can be assembled into nothing but a bicycle, whereas the contents of Thompson/Center’s package can constitute a pistol, a long-barreled rifle, or a short-barreled version. These distinctions, however, do define the issues raised by the Government’s argument, the first of which is whether the aggregation and segregation of separate parts that can be assembled only into a short-barreled rifle and are sufficient for that purpose amount to “making” that firearm, or whether the firearm is not “made” until the moment of final assembly. This is the issue on which the Federal and Seventh Circuits are divided.

We think the language of the statute provides a clear answer on this point. The definition of “make” includes not only “putting together,” but also “manufacturing ... or otherwise producing a firearm.” If as Thompson/Center submits, a firearm were only made at the time of final assembly .(the moment the firearm was “put together”), the additional language would be redundant. Congress must, then, have understood “making” to cover more than final assembly, and some disassembled aggregation of parts must be included. Since the narrowest example of a combination of parts that might be included is a set of parts that could be used to make nothing but a short-barreled rifle, the aggregation of such a set of parts, at the very least, must fall within the definition of “making” such a rifle.

This is consistent with the holdings of every Court of Appeals, except the court below, to consider a combination of parts that could only be assembled into an NFA-regulated firearm, either under the definition of rifle at issue here or under similar statutory language. See United States v. Drasen, supra; United States v. Endicott, 803 F. 2d 506, 508-509 (CA9 1986) (unassembled silencer is a silencer); United States v. Luce, 726 F. 2d 47, 48-49 (CA1 1984) (same); United States v. Lauchli, 371 F. 2d 303, 311-313 (CA7 1966) (unas-sembled machineguns are machineguns). We thus reject the broad language of the Court of Appeals for the Federal Circuit to the extent that it would mean that a disassembled complete short-barreled rifle kit must be assembled before it has been “made” into a short-barreled rifle. The fact that the statute would serve almost no purpose if this were the rule only confirms the reading we have given it.

We also think that a firearm is “made” on facts one step removed from the paradigm of the aggregated parts that can be used for nothing except assembling a firearm. Two courts to our knowledge have dealt in some way with claims that when a gun other than a firearm was placed together with a further part or parts that would have had no use in association with the gun except to convert it into a firearm, a firearm was produced. See United States v. Kokin, 365 F. 2d 595, 596 (CA3) (carbine together with all parts necessary to convert it into a machinegun is a machinegun), cert. denied, 385 U. S. 987 (1966); see also United States v. Zeidman, 444 F. 2d 1051, 1053 (CA7 1971) (pistol and attachable shoulder stock found “in different drawers of the same dresser” constitute a short-barreled rifle). Here it is true,, of course, that some of the parts could be used without ever assembling a firearm, but the likelihood of that is belied by the utter uselessness of placing the converting parts with the others except for just such a conversion. Where the evidence in a given case supports a finding of such uselessness, the case falls within the fair intendment of “otherwise producing a firearm.” See 26 U. S. C. §5845(i).

B

Here, however, we are not dealing with an aggregation of parts that can serve no useful purpose except the assembly of a firearm, or with an aggregation having no ostensible utility except to convert a gun into such a weapon. There is, to be sure, one resemblance to the latter example in the sale of the Contender with the converter kit, for packaging the two has no apparent object except to convert the pistol into something else at some point. But the resemblance ends with the fact that the unregulated Contender pistol can be converted not only into a short-barreled rifle, which is a regulated firearm, but also into a long-barreled rifle, which is not. The packaging of pistol and kit has an obvious utility for those who want both a pistol and a regular rifle, and the question is whether the mere possibility of their use to assemble a regulated firearm is enough to place their combined packaging within the scope of “making” one.

1

Neither the statute’s language nor its structure provides any definitive guidance. Thompson/Center suggests guidance may be found in some subsections of the statute governing other types of weapons by language that expressly covers combinations of parts. The definition of “machine-gun,” for example, was amended by the Gun Control Act of 1968 to read that “[t]he term shall also include ... any combination of parts from which a machinegun can be assembled if such parts are in the possession or under the control of a person.” 26 U. S. C. § 5845(b). In 1986, the definition of “silencer” was amended by the Firearms Owners’ Protection Act to “includ[e] any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer . . . .” See 26 U. S. C. § 5845(a)(7); 18 U. S. C. § 921(a)(24).

Thompson/Center stresses the contrast between these references to “any combination of parts” and the silence about parts in the definition of rifle in arguing that no aggregation of parts can suffice to make the regulated rifle. This argument is subject to a number of answers, however. First, it sweeps so broadly as to conflict with the statutory definition of “make,” applicable to all firearms, which implies that a firearm may be “made” even where not fully “put together.” If this were all, of course, the conflict might well be resolved in Thompson/Center’s favor. We do not, however, read the machinegun and silencer definitions as contrasting with the definition of rifle in such a way as to raise a conflict with the broad concept of “making.”

The definition of “silencer” is now included in the NFA only by reference, see 26 U. S. C. § 5845(a)(7), whereas its text' appears only at 18 U. S. C. § 921(a)(24), in a statute that itself contains no definition of “make.” Prior to 1986 the definition of “firearm” in the NFA included “a muffler or a silencer for any firearm whether or not such firearm is included within this definition.” 26 U. S. C. § 5845(a)(7) (1982 ed.). Two Courts of Appeals held this language to include unassembled silencers that could be readily and easily assembled. See United States v. Endicott, 803 F. 2d, at 508-509; United States v. Luce, 726 F. 2d, at 48-49.

In 1986, Congress replaced that language with “any silencer (as defined in section 921 of title 18, United States Code).” Pub. L. 99-308, § 109(b), 100 Stat. 460. The language defining silencer that was added to 18 U. S. C. § 921 at that same time reads: “The terms ‘firearm silencer’ and ‘firearm muffler’ mean any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.” Pub. L. 99-308, §101, 100 Stat. 451.

Thompson/Center argues that if, even before the amendment, a combination of parts was already “made” into a firearm, the “any combination of parts” language would be redundant. While such a conclusion of redundancy could suggest that Congress assumed that “make” in the NFA did not cover unassembled parts, the suggestion (and the implied conflict with our reading of “make”) is proven false by evidence that Congress actually understood redundancy to result from its new silencer definition. Congress apparently assumed that the statute reached complete-parts kits even without the “combination” language and understood the net effect of the new definition as expanding the coverage of the Act beyond complete-parts kits. “The definition of silencer is amended to include any part designed or redesigned and intended to be used as a silencer for a firearm. This will help to control the sale of incomplete silencer kits that now circumvent the prohibition on selling complete kits.” H. R. Rep. No. 99-495, p. 21 (1986). Because the addition of the “combination of parts” language to the definition of silencer does not, therefore, bear the implication Thompson/Center would put on it, that definition cannot give us much guidance in answering the question before us.

We get no more help from analyzing the machinegun definition’s reference to parts. It speaks of “any combination” of them in the possession or control óf any one person. Here the definition sweeps broader than the aggregation of parts, clearly covered by “making” a rifle. The machinegun parts need not even be in any particular proximity to each other. There is thus no conflict between definitions, but neither is much light shed on the limits of “making” a short-barreled rifle. We can only say that the notion of an unassembled machinegun is probably broader than that of an unassembled rifle. But just where the line is to be drawn on short-barreled rifles is not demonstrated by textual considerations.

2

Thompson/Center also looks for the answer in the purpose and history of the NFA, arguing that the congressional purpose behind the NFA, of regulating weapons useful for criminal purposes, should caution against drawing the line in such a way as to apply the Act to the Contender pistol and carbine kit. See H. R. Rep. No. 1337, 83d Cong., 2d Sess., A395 (1954) (the adoption of the original definition of rifle was intended to preclude coverage of antique guns held by collectors, “in pursuance of the clearly indicated congressional intent to cover under the National Firearms Act only such modern and lethal weapons, except pistols and revolvers, as could be used readily and efficiently by criminals or gangsters”).

It is of course clear from the face of the Act that the NFA’s object was to regulate certain weapons likely to be used for criminal purposes, just as the regulation of short-barreled rifles, for example, addresses a concealable weapon likely to be so used. But when Thompson/Center urges us to recognize that “the Contender pistol and carbine kit is not a criminal-type weapon,” Brief for Respondent 20, it does not really address the issue of where the line should be drawn in deciding what combinations of parts are “made” into short-barreled rifles. Its argument goes to the quite different issue whether the single-shot Contender should be treated as a firearm within the meaning of the Act even when assembled with a rifle stock.

Since Thompson/Center’s observations on this extraneous issue shed no light on the limits of unassembled “making” under the Act, we will say no more about congressional purpose. Nor are we helped by the NFA’s legislative history, in which we find nothing to support a conclusion one way or the other about the narrow issue presented here.

I — I I — I h — I

After applying the ordinary rules of statutory construction, then, we are left with an ambiguous statute. The key to resolving the ambiguity lies in recognizing that although it is a tax statute that we construe npw in a civil setting, the NFA has criminal applications that carry no additional requirement of willfulness. Cf. Cheek v. United States, 498 U. S. 192, 200 (1991) (“Congress has ... softened the impact of the common-law presumption [that ignorance of the law is no defense to criminal prosecution] by making specific intent to violate the law an element of certain federal criminal tax offenses”); 26 U. S. C. §§7201, 7203 (criminalizing willful evasion of taxes and willful failure to file a return). Making a firearm without approval may be subject to criminal sanction, as is possession of an unregistered firearm and failure to pay the tax on one, 26 U. S. C. §§5861, 5871. It is proper, therefore, to apply the rule of lenity and resolve the ambiguity in Thompson/Center’s favor. See Crandon v. United States, 494 U. S. 152, 168 (1990) (applying lenity in interpreting a criminal statute invoked in a civil action); Commissioner v. Acker, 361 U. S. 87, 91 (1959). Accordingly, we conclude that the Contender pistol and carbine kit when packaged together by Thompson/Center have not been “made” into a short-barreled rifle for purposes of the NFA. The judgment of the Court of Appeals is therefore

Affirmed.

Justice Scalia,

with whom Justice Thomas joins, concurring in the judgment.

I agree with the plurality that the application of the National Firearms Act (NFA) to Thompson/Center’s pistol and conversion kit is sufficiently ambiguous to trigger the rule of lenity, leading to the conclusion that the kit is not covered. I disagree with the plurality, however, over where the ambiguity lies — a point that makes no difference to the outcome here, but will make considerable difference in future cases. The plurality thinks the ambiguity pertains to whether the making of a regulated firearm includes (i) the manufacture of parts kits that can possibly be used to assemble a regulated firearm, or rather includes only (ii) the manufacture of parts kits that serve no useful purpose except assembly of a regulated firearm. Ante, at 512-513, 517. I think the ambiguity pertains to the much more fundamental point of whether the making of a regulated firearm includes the manufacture, without assembly, of component parts where the definition of the particular firearm does not so indicate.

As Justice White points out, the choice the plurality worries about is nowhere suggested by the language of the statute: §5845 simply makes no reference to the “‘utility’” of aggregable parts. Post, at 524 (dissenting opinion). It does, however, conspicuously combine references to “combination of parts” in the definitions of regulated silencers, ma-chineguns, and destructive devices with the absence of any such reference in the definition of regulated rifles. This, rather than the utility or not of a given part in a given parts assemblage, convinces me that the provision does not encompass Thompson/Center’s pistol and conversion kit, or at least does not do so unambiguously.

The plurality reaches its textually uncharted destination by determining that the statutory definition of “make,” the derivative of which appears as an operative word in 26 U. S. C. § 5821 (“There shall be levied, collected, and paid upon the making of a firearm a tax at the rate of $200 for each firearm made”), covers the making of parts that, assembled, are firearms. Noting that the “definition of ‘make’ includes not only ‘putting together/ but also ‘manufacturing ... or otherwise producing a firearm/ ” the plurality reasons that if “a firearm were only made at the time of final assembly (the moment the firearm was ‘put together’), the additional language would be redundant.” Ante, at 51Ó.

This reasoning seems to me mistaken. I do not think that if “making” requires “putting together,” other language of the definition section (“manufacturing” and “otherwise producing”) becomes redundant. “Manufacturing” is qualified by the parenthetical phrase “(other than by one qualified to engage in such business under this chapter),” whereas “putting together” is not. Thus, one who assembles a firearm and also engages in the prior activity of producing the component parts can be immunized from being considered to be making firearms by demonstrating the relevant qualification, whereas one who merely assembles parts manufactured by others cannot. Recognition of this distinction is alone enough to explain the separate inclusion of “putting together,” even though “manufacturing” itself includes assembly. As for the phrase “otherwise producing,” that may well be redundant, but such residual provisions often are. They are often meant for insurance, to cover anything the draftsman might inadvertently have omitted in the antecedent catalog; and if the draftsman is good enough, he will have omitted nothing at all. They are a prime example of provisions in which “iteration is obviously afoot,” Moskal v. United States, 498 U. S. 103, 120 (1990) (Scalia, J., dissenting), and for which an inflexible rule of avoiding redundancy will produce disaster. In any event, the plurality’s own interpretation (whereby “manufacturing” a firearm does not require assembling it, and “putting together” is an entirely separate category of “making”) renders it not a bit easier to conceive of a nonredundant application for “otherwise producing.”

The plurality struggles to explain why its interpretation (“making” does not require assembly of component parts) does not itself render redundant the “combination of parts” language found elsewhere in 26 U. S. C. § 5845, in the definitions of machinegun and destructive device, §§ 5845(b) and (f), and in the incorporated-by-reference definition of silencer, § 5845(a)(7) (referring to 18 U. S. C. § 921). See ante, at 513-516. I do not find its explanations persuasive, particularly that with respect to silencer, which resorts to that last hope of lost interpretive causes, that St. Jude of the hagiol-ogy of statutory construction, legislative history. As I have said before, reliance on that source is particularly inappropriate in determining the meaning of a statute with criminal application. United States v. R. L. C., 503 U. S. 291, 307 (1992) (opinion concurring in part and concurring in judgment).

There is another reason why the plurality’s interpretation is incorrect: It determines what constitutes a regulated “firearm” via an operative provision of the NFA (here § 5821, the making tax) rather than by way of § 5845, which defines firearms covered by the chapter. With respect to the definitions of machineguns, destructive devices, and silencers, for instance, the reference to “combination of parts” causes parts aggregations to be firearms whenever those nouns are used, and not just when they are used in conjunction with the verb “make” and its derivatives. Thus, the restrictions of § 5844, which regulate the importation of “firearm[s]” (a term defined to include “machinegun[s],” see § 5845(a)(6)), apply to a “combination of parts from which a machinegun can be assembled” (because that is part of the definition of machinegun) even though the word “make” and its derivatives do not appear in § 5844. This demonstrates, I say, the error of the plurality’s interpretation, because it makes no sense to have the firearms regulated by the NFA bear one identity (which includes components of rifles and shotguns) when they are the object of the verb “make,” and a different identity (excluding such components) when they are not. Section 5842(a), for example, requires. anyone “making” a firearm to identify it with a serial number that may not be readily removed; § 5842(b) requires any person who “possesses” a firearm lacking the requisite serial number to identify it with one assigned by the Secretary of the Treasury. Under the plurality’s interpretation, all the firearms covered by (a) are not covered by (b), since a person who “possesses” the components for a rifle or shotgun does not possess a firearm, even though a person who “makes” the components for a rifle or shotgun makes a firearm. For similar reasons, the tax imposed on “the making of a firearm” by §5821 would apply to the making of components for rifles and shotguns, but the tax imposed on “firearms transferred” by §5811 would not apply to the transfer of such components. This cannot possibly be right.

Finally, even if it were the case that unassembled parts could constitute a rifle, I do not think it was established in this case that respondent manufactured (assembled or not) a rifle “having a barrel or barrels of less than 16 inches in length,” which is what the definition of “firearm” requires, § 5845(a)(3). For the definition of “rifle” requires that it be “intended to be fired from the shoulder,” § 5845(c), and the only combination of parts so intended, as far as respondent is concerned (and the record contains no indication of anyone else’s intent), is the combination that forms a rifle with a 21-inch barrel. The kit’s instructions emphasized that legal sanctions attached to the unauthorized making of a short-barreled rifle, and there was even carved into the shoulder stock itself the following: “WARNING. FEDERAL LAW PROHIBITS USE WITH BARREL LESS THAN 16 INCHES.”

Since I agree (for a different reason) that the rule of lenity prevents these kits from being considered firearms within the meaning of the NFA, I concur in the judgment of the Court.

Justice White,

with whom Justice Blackmun, Justice Stevens, and Justice Kennedy join, dissenting.

The Court of Appeals for the Federal Circuit concluded that, to meet the definition of “firearm” under the National Firearms Act (NFA), 26 U.S.C. § 5845(a)(3), “a short-barreled rifle actually must be assembled.” 924 F. 2d 1041, 1043 (1991) (footnote omitted). I agree with the plurality that this pinched interpretation of the statute would fail to accord the term “make” its full meaning as that term is defined, § 5845(i), and used in the definition of the term “rifle,” § 5845(c). Because one “makes” a firearm not only in the actual “putting together” of the parts, but also by “manufacturing ... or otherwise producing a firearm,” Congress clearly intended that the “making” include a “disassembled aggregation of parts,” ante, at 510, where the assemblage of such parts results in a firearm. In short, when the components necessary to assemble a rifle are produced and held in conjunction with one another, a “rifle” is, not surprisingly, the result.

This was the difficult issue presented by this case, and its resolution, for me, is dispositive, as respondent Thompson/ Center concedes that it manufactures and distributes together a collection of parts that may be readily assembled into a short-barreled rifle. Indeed, Thompson/Center’s argument concerning statutory construction, as well as its appeal to the rule of lenity, does not suggest, nor does any case brought to our attention, that one may escape the tax and registration requirements the NFA imposes on those who “make” regulated rifles simply by distributing as part of the package other interchangeable pieces of sufficient design to avoid the regulated definition. The plurality nevertheless draws an artificial line between, on the one hand, those parts that “can serve no useful purpose except the assembly of a firearm” or that have “no ostensible utility except to convert a gun into such a weapon,” and, on the other hand, those parts that have “an obvious utility for those who want both a pistol and a regular rifle.” Ante, at 512-513.

I cannot agree. Certainly the statute makes no distinction based on the “utility” of the extra parts. While the plurality prefers to view this silence as creating ambiguity, I find it only to signal that such distinctions are irrelevant. To conclude otherwise is to resort to “‘ingenuity to create ambiguity’” that simply does not exist in this statute. United States v. James, 478 U. S. 597, 604 (1986), quoting Rothschild v. United States, 179 U. S. 463, 465 (1900). As noted by the Government, when a weapon comes within the scope of the “firearm” definition, the fact that it may also have a nonregulated form provides no basis for failing to comply with the requirements of the NFA. Brief for United States 13-14.

The Court today thus closes one loophole — one cannot circumvent the NFA simply by offering an unassembled collection of parts — only to open another of equal dimension — one can circumvent the NFA by offering a collection of parts that can be made either into a “firearm” or an unregulated rifle. I respectfully dissent.

Justice Stevens,

dissenting.

If this were a criminal case in which the defendant did not have adequate notice of the Government’s interpretation of an ambiguous statute, then it would be entirely appropriate to apply the rule of lenity. I am persuaded, however, that the Court has misapplied that rule to this quite different case.

I agree with Justice White, see ante, at 523-524, and also with the plurality, see ante, at 511, that respondent has made a firearm even though it has not assembled its constituent parts. I also agree with Justice White that that should be the end of the case, see ante, at 524, and therefore, I join his opinion. I add this comment, however, because I am persuaded that the Government should prevail even if the statute were ambiguous.

The main function of the rule of lenity is to protect citizens from the unfair application of ambiguous punitive statutes. Obviously, citizens should not be subject to punishment without fair notice that their conduct is prohibited by law. The risk that this respondent would be the victim of such unfairness, is, however, extremely remote. In 1985, the Government properly advised respondent of its reading of the statute and gave it ample opportunity to challenge that reading in litigation in which nothing more than tax liability of $200 was at stake. See 924 P. 2d 1041, 1042-1043 (CA Fed. 1991). Moreover, a proper construction of the statute in this case would entirely remove the risk of criminal liability in the future.

The plurality, after acknowledging that this case involves “a tax statute” and its construction “in a civil setting,” ante, at 517, nevertheless proceeds to treat the case as though it were a criminal prosecution. In my view, the Court should approach this case like any other civil case testing the Government’s interpretation of an important regulatory statute. This statute serves the critical objective of regulating the manufacture and distribution of concealable firearms — dangerous weapons that are a. leading cause of countless crimes that occur every day throughout the Nation. This is a field that has long been subject to pervasive governmental regulation because of the dangerous nature of the product and. the public interest in having that danger controlled. The public interest in carrying out the purposes that motivated the enactment of this statute is, in' my judgment and on this record, far more compelling than a mechanical application of the rule of lenity.

Accordingly, for this reason, as well as for the reasons stated by Justice White, I respectfully dissent.

       Unregulated, that is, under the NFA.

       The phrase “other than by one qualified to engage in such business under this chapter” apparently refers to those manufacturers who have sought and obtained qualification as a firearms manufacturer under 26 U. S. C. § 5801(a)(1), which requires payment of a $1,000 occupational tax. Rather than seek such qualification, Thompson/Center applied for permission to make a firearm as a nonqualified manufacturer under § 6822, which requires payment of the $200 per firearm “making tax” under § 5821(a).

       In Drasen, a complete-parts kit was sold with a flash suppressor, which, if affixed to the rifle barrel, would have extended it beyond the regulated length. See Drasen, 846 F. 2d, at 737. Because the Drasen court concluded that such a flash suppressor was not a part of the rifle’s barrel, see ibid., its holding is consistent with ours.

       We do not accept the Government’s suggestion, however, that complete-parts kits must be taxable because otherwise manufacturers will be able to “avoid the tax.” Brief for United States 11. Rather, we conclude that such kits are within the definition of the taxable item. Failure to pay the tax on such a kit thus would amount to evasion, not avoidance. In our system, avoidance of a tax by remaining outside the ambit of the law that imposes it is every person’s right. “Over and over again courts have said that there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible. Everybody does so, rich of poor; and all do right, for nobody owes any public duty to pay more than the law demands: taxes are enforced exactions, not voluntary contributions. To demand more in the name of morals is mere cant.” Commissioner v. Newman, 169 F. 2d 848, 860-851 (CA2) (L. Hand, J., dissenting), cert. denied, 331 U. S. 869 (1947).

       Contrary to Justice Scalia’s suggestion, see post, at 522, our understanding of these aggregations of parts, shared by a majority of the Court (those who join this opinion and the four Members of the Court in dissent, see post, p. 523 (White, J., joined by Blackmun, Stevens, and Kennedy, JJ., dissenting) (any aggregation of parts necessary to assemble a firearm is a firearm)), applies to all the provisions of the Act, whether they regulate the “making” of a firearm, e. g., 26 U. S. C. § 5821(a), or not, see, e. g., § 5842(b) (possession of a firearm that has no serial number); § 5844 (importation of a firearm); § 5811 (transfer of a firearm). Since, as we conclude, such a combination of parts, or of a complete gun and an additional part or parts, is “made” into a firearm, it follows, in the absence of some reason to the contrary, that all portions of the Act that apply to “firearms” apply to such a combination. Justice Scalia does not explain how we would be free to construe “firearm” in a different way for purposes of those provisions that do not contain the verb “to make.” Our normal canons of construction caution us to read the statute as a whole, and, unless there is a good reason, to adopt a consistent interpretation of a term used in more than one place within a statute.

       Thompson/Center suggests that further enquiry could be avoided when it contends that the Contender and carbine kit do not amount to a “rifle” of any kind because, until assembled into a rifle, they are not “ ‘made’ and ‘intended to be fired from the shoulder.’ ” Brief for Respondent 8. From what we have said thus far, however, it is apparent that, though disassembled, the parts included when the Contender and its carbine kit are packaged together have been “made” into a rifle. The inclusion of the rifle stock in the package brings the Contender and carbine kit within the “intended to be fired from the shoulder” language contained in the definition of rifle in the statute. See 26 U. S. C. § 5845(c). The only question is whether this combination of parts constitutes a short-barreled rifle. Surely Justice Scalia’s argument would take us over the line between lenity and credulity when he suggests that one who makes what would otherwise be a short-barreled rifle could escape liability by carving a warning into the shoulder stock. See post, at 523 (ScaliA, J., concurring in judgment).

       At the same time, the definition of “destructive device” was amended to include “any combination of parts either designed or intended for use in converting any device into a destructive device . . . and from which a destructive device may readily be assembled.” 26 U. S. C. § 5845(f). This appears to envision by its terms only combinations of parts for converting something into a destructive device.

       Justice Scalia upbraids us for reliance on legislative history, his “St. Jude of the hagiology of statutory construction.” Post, at 521. The shrine, however, is well peopled (though it has room for one more) and its congregation has included such noted elders as Justice Frankfurter: “A statute, like other living organisms, derives significance and sustenance from its environment, from which it cannot be severed without being mutilated. Especially is this true where the statute, like the one before us, is part of a legislative process having a history and a purpose. The meaning of such a statute cannot be gained by confining inquiry within its four corners. Only the historic process of which such legislation is an incomplete fragment — that to which it gave rise as well as that which gave rise to it — can yield its true meaning.” United States v. Monia, 317 U. S. 424, 432 (1943) (dissenting opinion).

       The Government has urged us to defer to an agency interpretation contained in two longstanding Revenue Rulings. Even if they were entitled to deference, neither of the rulings, Rev. Rul. 61-45, 1961-1 Cum. Bull. 663, and Rev. Rul. 61-203,1961-2 Cum. Bull. 224 (same), goes to the narrow question presented here, addressing rather the question whether pistols with short barrels and attachable shoulder stocks are short-barreled rifles. We do not read the Government to be relying upon Rev. Rul. 54-606, 1954-2 Cum. Bull. 33, which was repealed as obsolete in 1972, Rev. Rul. 72-178, 1972-1 Cum. Bull. 423, and which contained broader language that “possession or control of sufficient parts to assemble an operative firearm ... constitutes the possession of a firearm.” Reply Brief for United States 10.

       Justice Stevens contends that lenity should not be ápplied because this is a “ ‘tax statute,’ ” post, at 626, rather than a “criminal statute,” see post, at 625, n. 1, quoting Crandon v. United States, 494 U. S. 162, 168 (1990). But this tax statute has criminal applications, and we know of no other basis for determining when the essential nature of a statute is “criminal.” Surely, Justice Stevens cannot mean to suggest that in order for the rule of lenity to apply, the statute must be contained in the Criminal Code. See, e. g., United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221-222 (1952) (construing the criminal provisions of the Fair Labor Standards Act, 29 U. S. C. §§215, 216(a)). Justice Stevens further suggests that lenity is inappropriate because we construe, the statute today ‘“in a civil setting,’” rather than a “criminal prosecution.” Post, at 526. The rule of lenity, however, is a rule of statutory construction whose purpose is to help give authoritative meaning to statutory language. It is not a rule of administration calling for courts to refrain in criminal cases from applying statutory language that would have been held to apply if challenged in civil litigation.

       The plurality, as I read its opinion, relies on the derivative of “make” that appears in § 5821, not that appearing (in a quite different context) in the definition of “rifle.” See 26 U. S. C. § 5845(c) (“The term ‘rifle’ means a weapon designed or redesigned, made or remade ...”). I think it would not be possible to rely upon the use of “made” in § 5845(c), where the context is obviously suggestive of assembled rather than unassembled rifles. But even if the plurality means to apply its interpretation of “make” to § 5845(c), it still does not entirely avoid the problem I have identified. The definition of “any other weapon,” another in § 5845’s arsenal of defined firearms, does not contain relevant uses of the verb “make” or any derivative thereof. See 26 U. S. C. § 5845(e). It necessarily follows that “any other weapon” will mean one thing when a making tax is at hand but something else when a transfer tax is.

       See, e. g., Crandon v. United States, 494 U. S. 152, 168 (1990) (“Finally, as we have already observed, we are construing a criminal statute and are therefore bound to consider application of the rule of lenity. To the extent that any ambiguity over the temporal scope of [18 U. S. C.] § 209(a) remains, it should be resolved in petitioners’ favor unless and until Congress plainly states that we have misconstrued its intent”); Commissioner v. Acker, 361 U. S. 87, 91 (1959) (“The law is settled that ‘penal statutes are to be construed strictly,’ . . . and that one ‘is not to be subjected to a penalty unless the words of the statute plainly impose it’”) (citations omitted).

       Ambiguity in a criminal statute is resolved in favor of the defendant because “ ‘a fair warning should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed’ ” and because “of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, [and therefore] legislatures and not courts should define criminal activity.” United States v. Bass, 404 U. S. 336, 348 (1971).

       See, e. g., Gun Control Act of 1968, 18 U. S. C. § 921 et seq.; Arms Export Control Act, as amended Pub. L. 94-329, 90 Stat. 744, 22 U. S. C. § 2778; United States v. Biswell, 406 U. S. 311, 316 (1972) (acknowledging that the sale of firearms is a “pervasively regulated business”).


author: Justice Souter Justice O’Connor, Chief Justice Rehnquist, Justice Stevens, Justice Scalia,

text:
    SOCHOR v. FLORIDA
    No. 91-5843.
    Argued March 2, 1992
    Decided June 8, 1992

      Souter, J., delivered the opinion of the Court, Part I of which was unanimous, Part II of which was joined by Rehnquist, C. J., and White, O’Connor, Scalia, Kennedy, and Thomas, JJ., Part III-A of which was joined by Rehnquist, C. J., and White, O’Connor, Kennedy, and Thomas, JJ., Part III-B-1 of which was joined by Rehnquist, C. J., and White, Blackmun, Stevens, O’Connor, Kennedy, and Thomas, JJ., and Parts III-B-2 and IV of which were joined by Blackmun, Stevens, O’Connor, and Kennedy, JJ. O’Connor, J., filed a concurring opinion, post, p. 541. Rehnquist, C. J., filed an opinion concurring in part and dissenting in part, in which White and Thomas, JJ., joined, post, p. 541. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Blackmun, J., joined, post, p. 545. Scalia, J., filed an opinion concurring in part and dissenting in part, post, p. 553.

      Gary Caldwell argued the cause for petitioner. With him on the briefs were Richard L. Jorandby and Eric Cumfer.

      Carolyn M. Snurkowski, Assistant Attorney General of Florida, argued the cause for respondent. With her on the brief were Robert A. Butterworth, Attorney General, and Celia A. Terenzio, Assistant Attorney General.

        Steven M. Goldstein filed a brief for the Volunteer Lawyers Resource Center of Florida, Inc., as amicus curiae urging reversal.

        Michael Mello filed a brief for the Capital Collateral Representative of the State of Florida as amicus curiae.

   Justice Souter

delivered the opinion of the Court.

Under Florida law, after a defendant is found guilty of capital murder, a separate jury proceeding is held as the first of two steps in deciding whether his sentence should be life imprisonment or death. Fla. Stat. §921.141(1) (1991). At the close of such aggravating and mitigating evidence as the prosecution and the defense may introduce, the trial judge charges the jurors to weigh whatever aggravating and mitigating circumstances or factors they may find, and to reach an advisory verdict by majority vote. §921.141(2). The jury does not report specific findings of aggravating and mitigating circumstances, but if, at the second sentencing step, the judge decides upon death, he must issue a written statement of the circumstances he finds. §921.141(3). A death sentence is then subject to automatic review by the Supreme Court of Florida. §921.141(4).

A Florida trial court sentenced petitioner to death after a jury so recommended, and the Supreme Court of Florida affirmed. We must determine whether, as petitioner claims, the sentencer in his case weighed either of two aggravating factors that he claims were invalid, and if so, whether the State Supreme Court cured the error by holding it harmless. We answer yes to the first question and no to the second, and therefore vacate the judgment of the Supreme Court of Florida and remand.

I

On New Year’s Eve 1981, petitioner Dennis Sochor met a woman in a bar in Broward County, Florida. Sochor tried to rape her after they had left together, and her resistance angered him to the point of choking her to death. He was indicted for first-degree murder and kidnaping and, after a jury trial, was found guilty of each offense.

At the penalty hearing, aggravating and mitigating evidence was offered, and the jury was instructed on the possibility of finding four aggravating circumstances, two of which were that

“the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel, and [that] the crime for which the defendant is to be sentenced was committed in a cold, calculated and premeditated manner, without any pretense of moral or legal justification.” App. 326-327.

The judge then explained to the jury that it could find certain statutory and any nonstatutory mitigating circumstances, which were to be weighed against any aggravating ones. By a vote of 10 to 2, the jury recommended the death penalty for the murder. The trial court adopted the jury’s recommendation, finding all four aggravating circumstances as defined in the jury instructions and no circumstances in mitigation.

The Supreme Court of Florida affirmed. 580 So. 2d 595 (1991). It declined to reverse for unconstitutional vagueness in the trial judge’s instruction that the jury could find as an aggravating factor that “the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel” (hereinafter, for brevity, the heinousness factor, after the statute’s words “heinous, atrocious, or cruel,” Fla. Stat. § 921.141(5)(h) (1991)). The court held the issue waived for failure to object and the claim lacking merit in any event. 580 So. 2d, at 602-603, and n. 10. The court also rejected Sochor’s claim of insufficient evidence to support the trial judge’s finding of the heinousness factor, citing evidence of the victim’s extreme anxiety and fear before she died. The State Supreme Court did agree with Sochor, however, that the evidence failed to support the trial judge’s finding that “the crime . . . was committed in a cold, calculated, and premeditated manner without any pretense of moral or legal justification” (hereinafter the coldness factor), holding this factor to require a “heightened” degree of premeditation not shown in this case. Id., at 603. The State Supreme Court affirmed the death sentence notwithstanding the error, saying that:

“[1] We... disagree with Sochor’s claim that his death sentence is disproportionate. [2] The trial court carefully weighed the aggravating factors against the lack of any mitigating factors and concluded that death was warranted. [3] Even after removing the aggravating factor of cold, calculated, and premeditated there still remain three aggravating factors to be weighed against no mitigating circumstances. [4] Striking one aggravating factor when there are no mitigating circumstances does not necessarily require resentencing. Robinson v. State, 574 So. 2d 108 (Fla. 1991); Holton v. State, 573 So. 2d 284 (Fla. 1990); James v. State, 453 So. 2d 786 (Fla.), cert. denied, 469 U. S. 1098 ... (1984); Francois v. State, 407 So. 2d 885 (Fla. 1981), cert. denied, 458 U. S. 1122 ... (1982). [5] Under the circumstances of this case, and in comparison with other death cases, we find Sochor’s sentence of death proportionate to his crime. E. g., Hitchcock v. State, 578 So. 2d 685 (Fla. 1990); Tompkins[ v. State, 502 So. 2d 415 (Fla. 1986), cert. denied, 483 U. S. 1033 (1987)]; Doyle[ v. State, 460 So. 2d 353 (Fla. 1984)].” Id., at 604.

Sochor petitioned for a writ of certiorari, raising four questions. We granted review limited to the following two: (1) “Did the application of Florida’s [heinousness factor] violate the Eighth and Fourteenth Amendments?” and (2) “Did the Florida Supreme Court’s review of petitioner’s death sentence violate the Eighth and Fourteenth Amendments where that court upheld the sentence even though the trial court had instructed the jury on, and had applied, an improper aggravating circumstance, [in that] the Florida Supreme Court did not reweigh the evidence or conduct a harmless error analysis as to the effect of improper use of the circumstance on the jury’s penalty verdict?” Pet. for Cert. ii; see 502 U. S. 967 (1991).

II

In a weighing State like Florida, there is Eighth Amendment error when the sentencer weighs an “invalid” aggravating circumstance in reaching the ultimate decision to impose a death sentence. See Clemons v. Mississippi, 494 U. S. 738, 752 (1990). Employing an invalid aggravating factor in the weighing process “creates the possibility ... of randomness,” Stringer v. Black, 503 U. S. 222, 236 (1992), by placing a “thumb [on] death’s side of the scale,” id., at 232, thus “creating] the risk [of] treating] the defendant as more deserving of the death penalty,” id., at 235. Even when other valid aggravating factors exist, merely affirming a sentence reached by weighing an invalid aggravating factor deprives a defendant of “the individualized treatment that would result from actual reweighing of the mix of mitigating factors and aggravating circumstances.” Clemons, supra, at 752 (citing Lockett v. Ohio, 438 U. S. 586 (1978), and Eddings v. Oklahoma, 455 U. S. 104 (1982)); see Parker v. Dugger, 498 U. S. 308, 321 (1991). While federal law does not require the state appellate court to remand for resentencing, it must, short of remand, either itself reweigh without the invalid aggravating factor or determine that weighing the invalid factor was harmless error. Id., at 320.

A

Florida’s capital sentencing statute allows application of the heinousness factor if “[t]he capital felony was especially heinous, atrocious, or cruel.” Fla. Stat. §921.141(5)(h) (1991). Sochor first argues that the. jury instruction on the heinousness factor was invalid in that the statutory definition is unconstitutionally vague, see Maynard v. Cartwright, 486 U. S. 356 (1988); Godfrey v. Georgia, 446 U. S. 420 (1980), and the instruction failed to narrow the meaning enough to cure the defect. This error goes to the ultimate sentence, Sochor claims, because a Florida jury is “the sentencer” for Clemons purposes, or at the least one of “the sentencer’s” constituent elements. This is so because the trial judge does not render wholly independent judgment, but must accord deference to the jury’s recommendation. See Tedder v. State, 322 So. 2d 908, 910 (Fla. 1975) (life verdict); Grossman v. State, 525 So. 2d 833, 839, n. 1 (Fla. 1988) (death verdict), cert. denied, 489 U. S. 1071 (1989). Hence, the argument runs, error at the jury stage taints a death sentence, even if the trial judge’s decision is otherwise error free. Cf. Baldwin v. Alabama, 472 U. S. 372, 382 (1985). While Sochor concedes that the general advisory jury verdict does not reveal whether the jury did find and weigh the heinousness factor, he seems to argue that the possibility that the jury weighed an invalid factor is enough to require cure.

This argument faces a hurdle, however, in the rule that this Court lacks jurisdiction to review a state court’s resolution of an issue of federal law if the state court’s decision rests on an adequate and independent state ground, see Herb v. Pitcairn, 324 U. S. 117, 125-126 (1945), as it will if the state court’s opinion “indicates clearly and expressly” that the state ground is an alternative holding, see Michigan v. Long, 463 U. S. 1032, 1041 (1983); see also Harris v. Reed, 489 U. S. 255, 264, n. 10 (1989); Fox Film Corp. v. Muller, 296 U. S. 207, 210 (1935).

The Supreme Court of Florida said this about petitioner’s claim that the trial judge’s instruction on the heinousness factor was unconstitutional:

“Sochor’s next claim, regarding alleged errors in the penalty jury instructions, likewise must fail. None of the complained-of jury instructions were objected to at trial, and, thus, they are not preserved for appeal. Vaught v. State, 410 So. 2d 147 (Fla. 1982). In any event, Sochor’s claims here have no merit.

580 So. 2d, at 602-603, and n. 10.

The quoted passage indicates with requisite clarity that the rejection of Sochor’s claim was based on the alternative state ground that the claim was “not preserved for appeal,” and Sochor has said nothing in this Court to persuade us that this state ground is either not adequate or not independent. Hence, we hold ourselves to be without authority to address Sochor’s claim based on the jury instruction about the heinousness factor.

B

Sochor maintains that the same Eighth Amendment violation occurred again when the trial judge, who both parties agree is at least a constituent part of “the sentencer,” weighed the heinousness factor himself. To be sure, Sochor acknowledges the rule in Walton v. Arizona, 497 U. S. 639 (1990), where we held it was no error for a trial judge to weigh an aggravating factor defined by statute with impermissible vagueness, when the State Supreme Court had construed the statutory language narrowly in a prior case. Id., at 653. We presumed that the trial judge had been familiar with the authoritative construction, which gave significant guidance. Ibid. Sochor nonetheless argues that Walton is no help to the State, because Florida’s heinousness factor has not been subjected to the limitation of a narrow construction from the State Supreme Court.

In State v. Dixon, 283 So. 2d 1 (1973), cert. denied, 416 U. S. 943 (1974), the Supreme Court of Florida construed the statutory definition of the heinousness factor:

“It is our interpretation that heinous means extremely wicked or shockingly evil; that atrocious means outrageously wicked and vile; and, that cruel means designed to inflict a high degree of pain with utter indifference to, or even enjoyment of, the suffering of others. What is intended to be included are those capital crimes where the actual commission of the capital felony was accompanied by such additional acts as to set the crime apart from the norm of capital felonies — the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” 283 So. 2d, at 9.

Understanding the factor, as defined in Dixon, to apply only to a “conscienceless or pitiless crime which is unnecessarily torturous to the victim,” we held in Proffitt v. Florida, 428 U. S. 242 (1976), that the sentencer had adequate guidance. See id., at 255-256 (opinion of Stewart, Powell, and Stevens, JJ.).

Sochor contends, however, that the State Supreme Court’s post-Proffitt cases have not adhered to Dixon’s limitation as stated in Proffitt, but instead evince inconsistent and over-broad constructions that leave a trial court without sufficient guidance. And we may well agree with him that the Supreme Court of Florida has not confined its discussions on the matter to the Dixon language we approved in Proffitt, but has on occasion continued to invoke the entire Dixon statement quoted above, perhaps thinking that Proffitt approved it all. See, e. g., Porter v. State, 564 So. 2d 1060 (1990), cert. denied, 498 U. S. 1110 (1991); Cherry v. State, 544 So. 2d 184, 187 (1989), cert. denied, 494 U. S. 1090 (1990); Lucas v. State, 376 So. 2d 1149, 1153 (1979).

But however much that may be troubling in the abstract, it need not trouble us here, for our review of Florida law indicates that the State Supreme Court has consistently held that heinousness is properly found if the defendant strangled a conscious victim. See Hitchcock v. State, 578 So. 2d 685, 692-693 (1990), cert. denied, 502 U. S. 912 (1991); Holton v. State, 573 So. 2d 284, 292 (1990); Tompkins v. State, 502 So. 2d 415, 421 (1986); Johnson v. State, 465 So. 2d 499, 507, cert. denied, 474 U. S. 865 (1985); Adams v. State, 412 So. 2d 850, cert. denied, 459 U. S. 882 (1982). Cf. Rhodes v. State, 547 So. 2d 1201, 1208 (1989) (strangulation of semiconscious victim not heinous); Herzog v. State, 439 So. 2d 1372 (1983) (same). We must presume the trial judge to have been familiar with this body of case law, see Walton, 497 U. S., at 653, which, at a minimum, gave the trial judge “[some] guidance,” id., at 654. Since the Eighth Amendment requires no more, we infer no error merely from the fact that the trial judge weighed the heinousness factor. While Sochor responds that the State Supreme Court’s interpretation of the heinousness factor has left Florida trial judges without sufficient guidance in other factual situations, we fail to see how that supports the conclusion that the trial judge was without sufficient guidance in the case at hand. See generally Maynard v. Cartwright, 486 U. S., at 361-364.

III

Sochor also claims that when “the sentenced weighed the coldness factor there was Eighth Amendment error that went uncorrected in the State Supreme Court.

A

First, Sochor complains of consideration of the coldness factor by the jury, the first step in his argument being that the coldness factor was “invalid” in that it was unsupported by the evidence; the second step, that the jury in the instant case “weighed” the coldness factor; and the third and last step, that in Florida the jury is at least a constituent part of “the sentencer” for Clemons purposes. The argument fails, however, for the second step is fatally flawed. Because the jury in Florida does not reveal the aggravating factors on which it relies, we cannot know whether this jury actually relied on the coldness factor. If it did not, there was no Eighth Amendment violation. Thus, Sochor implicitly suggests that, if the jury was allowed to rely on any of two or more independent grounds, one of which is infirm, we should presume that the resulting general verdict rested on the infirm ground and must be set aside. See Mills v. Maryland, 486 U. S. 367, 376-377 (1988); cf. Stromberg v. California, 283 U. S. 359, 368 (1931). Just this Term, however, we held it was no violation of due process that a trial court instructed a jury on two different legal theories, one supported by the evidence, the other not. See Griffin v. United States, 502 U. S. 46 (1991). We reasoned that although a jury is unlikely to disregard a theory flawed in law, it is indeed likely to disregard an option simply unsupported by evidence. Id., at 59-60. We see no occasion for different reasoning here, and accordingly decline to presume jury error.

B

Sochor next complains that Eighth Amendment error in the trial judge’s weighing of the coldness factor was left uncured by the State Supreme Court.

1

We can start from some points of agreement. The parties agree that, in Florida, the trial judge is at least a constituent part of “the sentencer” for Clemons purposes, and there is, of course, no doubt that the trial judge “weighed” the coldness factor, as he said in his sentencing order. Nor is there any question that the coldness factor was “invalid” for Clemons purposes, since Parker applied the Clemons rule where a trial judge had weighed two aggravating circumstances that were invalid in the sense that the Supreme Court of Florida had found them to be unsupported by the evidence. See 498 U. S., at 311. It follows that Eighth Amendment error did occur when the trial judge weighed the coldness factor in the instant case. What is in issue is the adequacy of the State Supreme Court’s effort to cure the error under the rule announced in Clemons, that a sentence so tainted requires appellate reweighing or review for harmlessness.

2

We noted in Parker that the Supreme Court of Florida will generally not reweigh evidence independently, 498 U. S., at 319 (citing Hudson v. State, 538 So. 2d 829, 831 (per curiam), cert. denied, 493 U. S. 875 (1989); Brown v. Wainwright, 392 So. 2d 1327, 1331-1332 (1981) (per curiam)), and the parties agree that, to this extent at least, our perception of Florida law was correct. The State argues, nonetheless, that, in this case, the State Supreme Court did support the death verdict adequately by performing harmless-error analysis. It relies on the excerpt from the state court’s opinion quoted above, and particularly on the second through fourth sentences, as “declaring] a belief that” the trial judge’s weighing of the coldness factor “was harmless beyond a reasonable doubt” in that it “did not contribute to the [sentence] obtained.” Chapman v. California, 386 U. S. 18, 24 (1967). This, however, is far from apparent. Not only does the State Supreme Court’s opinion fail so much as to mention “harmless error,’’ see Yates v. Evatt, 500 U. S. 391, 406 (1991), but the quoted sentences numbered one and five expressly refer to the quite different enquiry whether Sochor’s sentence was proportional.

The State tries to counter this deficiency by arguing that the four cases cited following the fourth sentence of the quoted passage were harmless-error cases, citation to which was a shorthand signal that the court had reviewed this record for harmless error as well. But the citations come up short. Only one of the four cases contains language giving an explicit indication that the State Supreme Court had performed harmless-error analysis. See Holton v. State, 573 So. 2d 284, 293 (1990) (“We find the error was harmless beyond a reasonable doubt”). The other three simply do not, and the result is ambiguity.

Although we do not mean here to require a particular formulaic indication by state courts before their review for harmless federal error will pass federal scrutiny, a plain statement that the judgment survives on such an enquiry is clearly preferable to allusions by citation. In any event, when the citations stop as far short of clarity as these do, they cannot even arguably substitute for explicit language signifying that the State Supreme Court reviewed for harmless error.

IV

In sum, Eighth Amendment error occurred when the trial judge weighed the coldness factor. Since the Supreme Court of Florida did not explain or even “declare a belief that” this error “was harmless beyond a reasonable doubt” in that “it did not contribute to the [sentence] obtained,” Chapman, supra, at 24, the error cannot be taken as cured by the State Supreme Court’s consideration of the case. It follows that Sochor’s sentence cannot stand on the existing record of appellate review. We vacate the judgment of the Supreme Court of Florida and remand the case for proceedings not inconsistent with this opinion.

It is so ordered.

Justice O’Connor,

concurring.

I join the Court’s opinion but write separately to set forth my understanding that the Court does not hold that an appellate court can fulfill its obligations of meaningful review by simply reciting the formula for harmless error. In Chapman v. California, 386 U. S. 18 (1967), we held that before a federal constitutional error can be held harmless, the reviewing court must find “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id., at 24. This is a justifiably high standard, and while it can be met without uttering the magic words “harmless error,” see ante, at 540, the reverse is not true. An appellate court’s bald assertion that an error of constitutional dimensions was “harmless” cannot substitute for a principled explanation of how the court reached that conclusion. In Clemons v. Mississippi, 494 U. S. 738 (1990), for example, we did not hesitate to remand a case for “a detailed explanation based on the record” when the lower court failed to undertake an explicit analysis supporting its “cryptic,” one-sentence conclusion of harmless error. Id., at 753. I agree with the Court that the Florida Supreme Court’s discussion of the proportionality of petitioner’s sentence is not an acceptable substitute for harmless error analysis, see ante, at 539-540, and I do not understand the Court to say that the mere addition of the words “harmless error” would have sufficed to satisfy the dictates of Clemons.

Chief Justice Rehnquist,

with whom Justice White and Justice Thomas join, concurring in part and dissenting in part.

I join in all that the Court has to say in rejecting Sochor’s claim that the application of Florida’s “heinousness” factor in this case violated his constitutional rights. I also agree with the majority that Eighth Amendment error occurred when the trial judge weighed the invalid “coldness” factor in imposing Sochor’s death sentence. Accordingly, I join Parts I, II, III-A, and III-B-1 of the Court’s opinion. I dissent from Parts III-B-2 and IV of the opinion, however, for I believe that the Supreme Court of Florida cured this sentencing error by finding it harmless. I would thus affirm the judgment below and uphold the sentence.

When a reviewing court invalidates one or more of the aggravating factors upon which the sentencer relied in imposing a death sentence, the court may uphold the sentence by reweighing the remaining evidence or by conducting harmless-error analysis. Clemons v. Mississippi, 494 U. S. 738 (1990); As the majority observes, the Supreme Court of Florida does not in practice independently reweigh aggravating and mitigating evidence, and it did not do so in this case. Ante, at 539-540. In order to sustain Sochor’s sentence, the court thus had to find any error harmless. In other words, it had to find beyond a reasonable doubt that the trial judge would still have imposed the death sentence if he had not considered the “coldness” factor when performing the weighing function required by Florida law. Clemons v. Mississippi, supra, at 753; Chapman v. California, 386 U. S. 18, 24 (1967). It seems clear to me that the court reached this conclusion, and that the conclusion is certainly justified by the facts of this case.

After finding that the trial judge erred in relying on the “coldness” factor in determining Sochor’s sentence, the Supreme Court of Florida stated:

“The trial court carefully weighed the aggravating factors against the lack of any mitigating factors and concluded that death was warranted. Even after removing the aggravating factor of cold, calculated, and premeditated there still remain three aggravating factors to be weighed against no mitigating circumstances. Striking one aggravating factor when there are no mitigating circumstances does not necessarily require resentencing. Robinson v. State, 574 So. 2d 108 (Fla. 1991); Holton v. State, 573 So. 2d 284 (Fla. 1990); James v. State, 453 So. 2d 786 (Fla.), cert. denied, 469 U. S. 1098 ... (1984); Francois v. State, 407 So. 2d 885 (Fla. 1981), cert. denied, 458 U. S. 1122 ... (1982).” 580 So. 2d 595, 604 (1991).

The Court now holds that this passage fails to indicate that the error in this case was viewed as harmless. It is true that the passage does not mention the words “harmless error.” But we have never held that a court must necessarily recite those words in determining whether an error had an effect on a certain result. In deciding whether the Supreme Court of Florida conducted adequate harmless-error analysis in this case, our focus should not be solely on the particular words and phrases it used to convey its thoughts. Whatever words it used, if they show that it concluded beyond a reasonable doubt that elimination of the “coldness” aggravating factor would have made no difference to Sochor’s sentence, then it conducted adequate harmless-error analysis. See Parker v. Dugger, 498 U. S. 308, 319 (1991).

I am convinced by the passage quoted above that the Supreme Court of Florida believed, beyond a reasonable doubt, that the elimination of the “coldness” factor would have made no difference at all in this case. A review of the aggravating and mitigating evidence presented in this case demonstrates why. In making his sentencing determination, the trial judge found four aggravating circumstances, including the “coldness” aggravator. He found absolutely no mitigating evidence. After weighing the four aggravating circumstances against zero mitigating circumstances, the trial judge imposed the death penalty. The Supreme Court of Florida later found the “coldness” aggravating circumstance invalid. It observed, however, that three valid ag-gravators were left to be balanced against the complete lack of mitigating evidence. On that basis, the court concluded that resentencing was unnecessary. After reaching that conclusion, the court cited four cases in which it had invalidated aggravating factors but had upheld the death sentences, having found that the inclusion of those aggravators made no difference to the weighing process. One of the cases cited in fact made explicit mention of harmless-error analysis. Holton v. State, 573 So. 2d 284, 293 (1990) (“Under the circumstances of this case, we cannot say there is any reasonable likelihood the trial court would have concluded that the three valid aggravating circumstances were outweighed by the mitigating factors. We find the error was harmless beyond a reasonable doubt”) (citation omitted). See supra, at 542-543.

In my mind, it is no stretch to conclude that the court saw this case for what it is — a paradigmatic example of the situation where the invalidation of an aggravator makes absolutely no difference in the sentencing calculus. We have previously observed that the invalidation of an aggravating circumstance results in the removal of a “thumb . . . from death’s side of the scale.” Stringer v. Black, 503 U. S. 222, 232 (1992). Precisely for this reason, we require appellate courts to either reweigh the evidence or perform harmless-error analysis if they seek to affirm a death sentence after invalidating an aggravator. In a case such as this, however, where there is not so much as a thumbnail on the scale in favor of mitigation, I would not require appellate courts to adhere to any particular form of words to demonstrate that which is evident. If the trial judge in this case had eliminated the “coldness” aggravator from the weighing process, and had balanced the three valid aggravators against the complete absence of mitigating evidence, the absent mitigating evidence would still have failed to outweigh the aggravating evidence, and the sentence would still have been death. Although it did so cursorily, I am convinced that the Supreme Court of Florida found the inclusion of the invalid “coldness” factor harmless beyond a reasonable doubt.

It seems that the omission of the words “harmless error” from the opinion below is the root of this Court’s dissatisfaction with it. In all likelihood, the Supreme Court of Florida will reimpose Sochor’s death sentence on remand, perhaps by appending a sentence using the talismanic phrase “harmless error.” Form will then correspond to substance, but this marginal benefit does not justify our effort to supervise the opinion writing of state courts. I would therefore affirm the judgment below.

Justice Stevens,

with whom Justice Blackmun joins, concurring in part and dissenting in part.

We granted certiorari to consider two questions. The Court answers the first question in Parts III-B and IV of its opinion, see ante, at 538-540, which I join. I do not, however, agree with the Court’s treatment of the plain error that occurred when the trial judge instructed the jury at the penalty phase of the trial. See ante, at 532-534. Florida argues that this error was harmless because the death sentence was imposed by the judge rather than the jury. The Court today does not address this argument because it concludes that petitioner waived the error by failing to object to the instruction. I disagree with this Court in its effort to avoid the issue and with the Florida Supreme Court in its appraisal of the error.

I

There is no dispute that the instruction prescribing the so-called heinous, atrocious, or cruel aggravating circumstance (or heinousness factor, according to the Court’s nomenclature) was unconstitutionally vague under our decision in Maynard v. Cartwright, 486 U. S. 356 (1988). In Cartwright, the Court explained that “[t]o say that something is ‘especially heinous’ merely suggests that the individual jurors should determine that the murder is more than just ‘heinous,’ whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is ‘especially heinous.’ ” Id., at 364 (citation omitted). Although a state court may adopt a limiting construction of a vague capital sentencing aggravating circumstance to give meaningful guidance to the sentencer, see id., at 360, 365; Walton v. Arizona, 497 U. S. 639, 653 (1990); Lewis v. Jeffers, 497 U. S. 764, 778-779 (1990); Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (plurality opinion), or a state appellate court might apply a limiting definition of the aggravating circumstance to the facts presented, see Cartwright, 486 U. S., at 364; Walton, 497 U. S., at 653; Jeffers, 497 U. S., at 778-779; Godfrey, 446 U. S., at 429, the Florida Supreme Court has failed to do so here. In Proffitt v. Florida, 428 U. S. 242, 255-256 (1976), this Court approved the limiting construction adopted by the Florida Supreme Court for the heinousness factor; however, the guidance given in State v. Dixon, 283 So. 2d 1 (Fla. 1973), was certainly not provided in the bare bones of the instruction given by the trial court in this case. See n. 2, supra.

HH 1 — I

Petitioner s failure to object to the instruction at trial did not deprive the Florida Supreme Court or this Court of the power to correct the obvious constitutional error. First, petitioner did object to the vagueness of this aggravating circumstance in a Motion To Declare Section 921.141, Florida Statutes Unconstitutional Re: Aggravating and Mitigating Circumstances at the start of trial, see App. 8, 10; however, that motion was denied. See 1 Tr. 9. Second, the Florida Supreme Court, though noting that petitioner had failed to make a contemporaneous objection to the instruction at the time of trial, nevertheless went on to reach the merits of petitioner’s claim. See 580 So. 2d 595, 603 (1991). Thus, the Florida Supreme Court, far from providing us with a plain statement that petitioner’s claim was procedurally barred, see Michigan v. Long, 463 U. S. 1032, 1042 (1983), has merely said that the claim was “not preserved for appeal,” 580 So. 2d, at 602, and has given even further indication that petitioner’s claim was not procedurally barred by proceeding to the merits, albeit in the alternative. Third, and most important, the state court may review a fundamental error despite a party’s failure to make a contemporaneous objection in the trial court, and it unquestionably has the power to review this error even though the error may not have been properly preserved for appeal. As the Florida Supreme Court explained, “[fundamental error has been defined as ‘error which goes to the foundation of the case or goes to the merits of the cause of action,’ ” and although it is to be applied “ ‘very guardedly,’ ” it nevertheless is to be applied in those “rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Ray v. State, 408 So. 2d 956, 960 (1981) (citations omitted). Presumably because the state court reviews for fundamental error, but did not find such error here, the State did not oppose the petition for certiorari by arguing procedural default. See Brief in Opposition 11 (State argued heinousness factor was not unconstitutionally vague). Under these circumstances, the State has waived any possible procedural objection to our consideration of the erroneous jury instruction, and this Court, contrary to its protestation, is not “without authority” to address petitioner’s claim. Ante, at 534.

HH HH HH

We should reject unequivocally Florida’s submission that erroneous jury instructions at the penalty phase of a capital case are harmless because the trial judge is the actual sen-tencer and the jury’s role-is purely advisory. That submission is unsound as a matter of law, see, e. g., Riley v. Wainwright, 517 So. 2d 656, 659 (Fla. 1987); Hall v. State, 541 So. 2d 1125, 1129 (Fla. 1989), and as a matter of fact.

As a matter of law, the jury plays an essential role in the Florida sentencing scheme. Under Tedder v. State, 322 So. 2d 908 (Fla. 1975), and its progeny, a jury’s recommendation must be given “great weight.” Id., at 910. The Florida Supreme Court explained that a jury recommendation of a life sentence can be overturned only if “the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ.” Ibid.

Similarly, a jury’s recommendation of a death sentence must also be given great weight. For example, in Stone v. State, 378 So. 2d 765, cert. denied, 449 U. S. 986 (1980), the Florida Supreme Court discussed a challenge to a death sentence imposed after a jury had recommended a sentence of death. The petitioner had based his challenge on a similar case, Swan v. State, 322 So. 2d 485 (Fla. 1975), in which the court had reversed the death sentence. In affirming Stone’s sentence, however, the court pointed out that the critical difference between Stone’s case and Swan’s case was that “Swan’s jury recommended mercy while Stone’s recommended death and the jury recommendation is entitled to great weight. Tedder v. State, 322 So. 2d 908 (Fla. 1975).” 378 So. 2d, at 772.

As a matter of fact, the jury sentence is the sentence that is usually imposed by the Florida Supreme Court. The State has attached an appendix to its brief, see App. to Brief for Respondent A1-A70, setting forth data concerning 469 capital cases that were reviewed by the Florida Supreme Court between 1980 and 1991. In 341 of those cases (73%), the jury recommended the death penalty; in none of those cases did the trial judge impose a lesser sentence. In 91 cases (19%), the jury recommended a life sentence; in all but one of those cases, the trial judge overrode the jury’s recommended life sentence and imposed a death sentence. In 69 of those overrides (77%), however, the Florida Supreme Court vacated the trial judge’s sentence and either imposed a life sentence itself or remanded for a new sentencing hearing.

Two conclusions are evident. First, when the jury recommends a death sentence, the trial judge will almost certainly impose that sentence. Second, when the jury recommends a life sentence, although overrides have been sustained occasionally, the Florida Supreme Court will normally uphold the jury rather than the judge. It is therefore clear that in practice, erroneous instructions to the jury at the sentencing phase of the trial may make the difference between life or death.

When a jury has been mistakenly instructed on the heinous, atrocious, or cruel aggravating circumstance, the Florida Supreme Court, acknowledging the important role that the jury plays in the sentencing scheme, has held that the error was reversible. For example, in Jones v. State, 569 So. 2d 1234 (1990), in which the jury was instructed on the heinousness factor, but the body had been sexually abused after death, and the death had occurred quickly as the result of a gunshot wound, the Florida Supreme Court concluded that the heinousness factor was inapplicable and that its inclusion in the instructions constituted reversible error. Similarly, in Omelus v. State, 584 So. 2d 563 (1991), when the trial court had instructed the jury on the heinousness factor even though the defendant had contracted with a third party to perform the killing, and had no knowledge of how the murder was accomplished, the Florida Supreme Court remanded the case for resentencing. Thus, the Florida Supreme Court recognized that when the jury’s deliberative process is infected by consideration of an inapplicable aggravating factor, the sentence must be vacated unless the error is harmless beyond a reasonable doubt. Similarly, the court has recognized that when the jury is given an instruction that is unconstitutionally vague, the jury’s deliberative process is also tainted, and a remand is appropriate so that the jury can reach a sentence that is not influenced by the unconstitutional factor unless the error is harmless beyond a reasonable doubt.

The harmless-error inquiry to be conducted by the Florida Supreme Court on remand should, therefore, encompass the erroneous jury instruction on the heinousness factor and the error in submitting an instruction on the cold, calculated, and premeditated aggravating circumstance to the jury when the evidence did not support such an instruction, as well as the error committed by the trial judge in relying on that factor.

For the reasons given above, I concur in Parts I, III-B, and IV, and respectfully disagree with Parts II-A, II-B, and III-A.

Justice Scalia,

concurring in part and dissenting in part.

I join the Court’s opinion insofar as it rejects petitioner’s challenge to the heinous, atrocious, and cruel aggravating factor. I dissent, however, from its holding that the death sentence in this case is unconstitutional because the Florida Supreme Court failed to find “harmless error” after having invalidated the trial judge’s “coldness” finding.

Even without that finding, three unquestionably valid aggravating factors remained, so that the death sentence complied with the so-called “narrowing” requirement imposed by the line of cases commencing with Furman v. Georgia, 408 U. S. 238 (1972). The constitutional “error” whose harmlessness is at issue, then, concerns only the inclusion of the “coldness” factor in the weighing of the aggravating factors against the mitigating evidence petitioner offered. It has been my view that the Eighth Amendment does not require any consideration of mitigating evidence, see Walton v. Arizona, 497 U. S. 639, 656 (1990) (opinion concurring in part and concurring in judgment) — a view I am increasingly confirmed in, as the byzantine complexity of the death penalty jurisprudence we are annually accreting becomes more and more apparent. Since the weighing here was in my view not constitutionally required, any error in the doing of it raised no federal question. For that reason, I would affirm the death sentence.

      “10. .... We reject without discussion Sochor’s ... claims ... that the instructions as to the aggravating factors of heinous, atrocious, or cruel and cold, calculated, and premeditated were improper ....”

       Justice Stevens’s dissenting conclusion that we do have jurisdiction, post, at 547-549, is mistaken. First, the suggestion'that Soehor’s pretrial motion objecting to the vagueness of Florida’s heinousness factor preserved his objection to the heinousness instruction to the jury, post, at 547, ignores the settled rule of Florida procedure that, in order to preserve an objection, a party must object after the trial judge has instructed the jury. See, e. g., Harris v. State, 438 So. 2d 787, 795 (Fla. 1983), cert. denied, 466 U. S. 963 (1984); Vazquez v. State, 518 So. 2d 1348, 1350 (Fla. App. 1987); Walker v. State, 473 So. 2d 694, 697-698 (Fla. App. 1985). While the rule is subject to a limited exception for an advance request for a specific jury instruction that is explicitly denied, see, e. g., State v. Heathcoat, 442 So. 2d 955, 957 (Fla. 1983); Buford v. Wainwright, 428 So. 2d 1389, 1390 (Fla.), cert. denied, 464 U. S. 956 (1983); De Parias v. State, 562 So. 2d 434, 435 (Fla. App. 1990), Sochor gets no benefit from this exception, because he never asked for a specific instruction.
      Second, Justice Stevens states that “the Florida Supreme Court, far from providing us with a plain statement that petitioner’s claim was procedurally barred, has merely said that the claim was not preserved for appeal, and has given even further indication that petitioner’s claim was not procedurally barred by proceeding to the merits, albeit in the alternative.” Post, at 547-548 (citations and internal quotation marks omitted). It is difficult to comprehend why the State Supreme Court’s statement that “the claim was not preserved for appeal” would not amount to “a plain statement that petitioner’s claim was procedurally barred,” especially since there is no reason to believe that error of the kind Sochor alleged cannot be waived under Florida law, see this note, infra. It is even more difficult to comprehend why the fact that the State Supreme Court rested upon this state ground merely in the alternative would somehow save our jurisdiction. See supra, at 533.
      Third, Justice Stevens suggests that, in holding Sochor’s claim waived, the Supreme Court of Florida implied that the claim did not implicate “fundamental error,” and that this in turn implied a rejection of So-chor’s claim of “error,” presumably because all federal constitutional error (or at least the kind claimed by Sochor) would automatically be “fundamental.” Post, at 548-549. To say that this is “the most reasonable explanation,” Michigan v. Long, 463 U. S. 1032, 1041 (1983), of the court’s summary statement that Sochor’s claim was “not preserved for appeal,” see 580 So. 2d, at 602-603, is an Olympic stretch, see Harris v. Reed, 489 U. S. 255, 274-276 (1989) (Kennedy, J., dissenting). In any event, we know of no Florida authority supporting Justice Stevens’s suggestion that all federal constitutional error (or even the kind claimed by Sochor) would be automatically “fundamental.” Indeed, where, as here, valid aggravating factors would remain, instructional error involving another factor is not “fundamental.” See Occhicone v. State, 570 So. 2d 902, 906 (Fla. 1990), cert. denied, 500 U. S. 938 (1991).
      Finally, Justice Stevens’s suggestion that the State waived its independent-state-ground defense, post, at 548-549, forgets that this defense goes to our jurisdiction and therefore cannot be waived. See supra, at 533.

       Petitioner included four questions in his petition for writ of certiorari; however, the Court limited its grant to a consideration of questions two and four, which petitioner framed as follows:
      “2. Did the Florida Supreme Court’s review of petitioner’s death sentence violate the Eighth and Fourteenth Amendments where that court upheld the sentence even though the trial court had instructed the jury on, and had applied, an improper aggravating circumstance, where the Florida Supreme Court did not reweigh the evidence or conduct a harmless error analysis as to the effect of improper use of the circumstance on the jury’s penalty verdict?”
      “4. Did the application of Florida’s ‘especially heinous, atrocious, or cruel’ aggravating circumstance at bar violate the Eighth and Fourteenth Amendments?” Pet. for Cert. ii.

       The trial judge gave the following instruction with respect to the heinous, atrocious, or cruel aggravating circumstance: “The aggravating circumstances that you may consider are limited to any of the following that are established by the evidence. ... [N]umber three, the crime for which the defendant is to be sentenced was especially wicked, evil, atrocious or cruel.” App. 326-327.

       See Walton v. Arizona, 497 U. S. 639, 653 (1990) (“It is not enough to instruct the jury in the bare terms of an aggravating circumstance that is unconstitutionally vague on its face”); Godfrey v. Georgia, 446 U. S. 420, 428 (1980) (“There is nothing in these few words, [‘outrageously or wantonly vile, horrible and inhuman,’] standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence”).

       In State v. Dixon, 283 So. 2d 1 (Fla. 1973), cert. denied, 416 U. S. 943 (1974), the Florida courts had construed the heinousness factor to apply only to “the conscienceless or pitiless crime which is unnecessarily torturous to the victim.” 283 So. 2d, at 9.

       In particular, petitioner alleged:
      “Almost any capital felony would appear especially cruel, heinous and atrocious to the layman, particularly any felony murder. Examination of the widespread application of this circumstance indicates that reasonable and consistent application is impossible. This standard is vague and over-broad and provides no basis for distinguishing one factual situation from another. Godfrey v. Georgia, 446 U. S. 420 (1980).” App. 10.

       See, e. g., Ray v. State, 403 So. 2d 956, 960 (Fla. 1981) (“This Court has indicated that for error to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process”); Castor v. State, 365 So. 2d 701, 704, n. 7 (Fla. 1978) (same); State v. Smith, 240 So. 2d 807, 810 (Fla. 1970) (same).

       The Florida Supreme Court’s statement that none of the alleged errors in the jury instructions had been “preserved for appeal,” 580 So. 2d 595, 602 (1991), merely raised the question whether they should nevertheless be reviewed under the “fundamental error” exception. That question was answered by the court’s statement that petitioner’s claims “have no merit.” Id., at 603.

       The Court clearly misconstrues my point about fundamental error if it understands me to be saying that all errors concerning an improper instruction on the heinous, atrocious, or cruel aggravating circumstance “would automatically be ‘fundamental.’ ” Ante, at 535, n. Quite simply, my point is not that such error necessarily constitutes fundamental error, but rather, that such error can be the subject of fundamental error review. In other words, the Florida Supreme Court is not without power, even when the defendant has failed to raise an objection at trial, to consider whether such error constitutes fundamental error. Although the Florida Supreme Court may not necessarily find fundamental error in the particular instance, it is, nevertheless, willing and able to consider whether fundamental error has occurred. See, e. g., Walton v. State, 547 So. 2d 622, 625-626 (Fla. 1989) (“Absent fundamental error, failure to object to the jury instructions at trial precludes appellate review.... We find no fundamental error in the instructions”), cert. denied, 493 U. S. 1036 (1990); Smalley v. State, 546 So. 2d 720, 722 (Fla. 1989).

       See Oklahoma City v. Tuttle, 471 U. S. 808, 816 (1986) (“Our decision to grant certiorari represents a commitment of scarce judicial resources with a view to deciding the merits of one or more of the questions presented in the petition. Nonjurisdictional defects of this sort should be brought to our attention no later than in respondent’s brief in opposition to the petition for certiorari; if not, we consider it within our discretion to deem the defect waived”).
      Contrary to the Court’s suggestion that I have forgotten that the “defense” is jurisdictional, see ante, at 635, n., I believe the Court has forgotten that we have ample power to review a state court’s disposition of a federal question on its merits. If the Florida Supreme Court has jurisdiction to consider petitioner’s claim, as I believe it does when it engages in fundamental error review and reaches the merits of the claim, then this Court also has jurisdiction to reach the merits.

       See, e. g., Thompson v. State, 328 So. 2d 1 (Fla. 1976).

       As the Eleventh Circuit observed about the Florida Supreme Court: “That the court meant what it said in Tedder is amply demonstrated by the dozens of cases in which it has applied the Tedder standard to reverse a trial judge’s attempt to override a jury recommendation of life. See, e. g., Wasko v. State, 505 So. 2d 1314, 1318 (Fla. 1987); Brookings v. State, 495 So. 2d 135, 142-43 (Fla. 1986); McCampbell v. State, 421 So. 2d 1072, 1075-76 (Fla. 1982); Goodwin v. State, 405 So. 2d 170, 172 (Fla. 1981); Odom v. State, 403 So. 2d 936, 942-43 (Fla. 1981), cert. denied, 456 U. S. 925 ... (1982); Neary v. State, 384 So. 2d 881, 885-88 (Fla. 1980); Malloy v. State, 382 So. 2d 1190, 1193 (Fla. 1979); Shue v. State, 366 So. 2d 387, 390-91 (Fla. 1978); McCaskill v. State, 344 So. 2d 1276, 1280 (Fla. 1977); Thompson v. State, 328 So. 2d 1, 5 (Fla. 1976).” Mann v. Dugger, 844 F. 2d 1446, 1451 (1988) (en banc), cert. denied, 489 U. S. 1071 (1989).

         Smith v. State, 515 So. 2d 182, 185 (Fla. 1987) (“[W]e approve the death sentence on the basis that a jury recommendation of death is entitled to great weight”), cert. denied, 485 U. S. 971 (1988); see also LeDuc v. State, 365 So. 2d 149, 151 (Fla. 1978) (“The primary standard for our review of death sentences is that the recommended sentence of a jury should not be disturbed if all relevant data w[ere] considered, unless there appear strong reasons to believe that reasonable persons could not agree with the recommendation”), cert. denied, 444 U. S. 885 (1979); Ross v. State, 386 So. 2d 1191, 1197 (Fla. 1980) (same); Middleton v. State, 426 So. 2d 548, 552-553 (Fla. 1982) (approving trial court’s imposition of death sentence and reiterating that jury had recommended death), cert. denied, 463 U. S. 1230 (1983); Francois v. State, 407 So. 2d 885, 891 (Fla. 1981) (same), cert. denied, 458 U. S. 1122 (1982); cf. Grossman v. State, 525 So. 2d, at 839, n. 1 (“We have . .. held that a jury recommendation of death should be given great weight”).

       The Florida courts have long recognized the integral role that the jury plays in their capital sentencing scheme. See, e. g., Messer v. State, 330 So. 2d 137, 142 (Fla. 1976) (“[T]he legislative intent that can be gleaned from Section 921.141 . . . [indicates that the legislature] sought to devise a scheme of checks and balances in which the input of the jury serves as an integral part”); see also Riley v. Wainwright, 517 So. 2d 656, 657 (Fla. 1988) (“This Court has long held that a Florida capital sentencing jury’s recommendation is an integral part of the death sentencing process”); Lamadline v. State, 303 So. 2d 17, 20 (Fla. 1974) (right to sentencing jury is “an essential right of the defendant under our death penalty legislation”).

       In 37 out of the 469 cases, there was no jury recommendation either because the defendant had waived the right to -a jury trial or had offered a plea, or because the jury selection or trial had to be redone.

       As the Eleventh Circuit observed:
      “[T]he Florida Supreme Court will vacate the [death] sentence and order resentencing before a new jury if it concludes that the proceedings before the original jury were tainted by error. ... In those cases, the supreme court frequently focuses on how the error may have affected the jury’s recommendation. . . . Such a focus would be illogical unless the supreme court began with the premise that the jury’s recommendation must be given significant weight by the trial judge. Once that premise is established, a focus on how the error may have affected the jury’s recommendation makes sense: if the jury’s recommendation is tainted, then the trial court’s sentencing decision, which took into account that recommendation, is also tainted.” Mann v. Dugger, 844 F. 2d, at 1452-1453 (footnote omitted).

       As the court explained in Riley v. Wainwright, 617 So. 2d, at 669: “If the jury’s recommendation, upon which the judge must rely, results from an unconstitutional procedure, then the entire sentencing process necessarily is tainted by that procedure.”