Petitioner was convicted in a Federal District Court on two
different counts of assaulting two federal officers with a deadly
weapon in violation of 18 U.S.C. (1940 ed.) § 254 (now 18 U.S.C. §
111). He was sentenced to imprisonment for 10 years on each
conviction of assault, the sentences to run consecutively. Upon
completion of the first 10-year sentence, he moved in the District
Court under 28 U.S.C. § 2255 to correct the second, and
consecutive, sentence. He alleged that the evidence at his trial
showed that he fired but one discharge from a shotgun, which
wounded the two federal officers, and he contended that, in these
circumstances, he could be guilty of but one assault. Holding that
the wounding of two officers by a single discharge of a shotgun
would constitute a separate offense against each officer under the
statute, the District Court denied his motion, and the Court of
Appeals affirmed.
Held: the single discharge of a shotgun alleged by
petitioner in this case would constitute only a single violation of
§ 254; petitioner is entitled to an opportunity to sustain his
allegation that his conviction of two assaults rested upon evidence
that the wounding of the two officers resulted from the single
discharge of the gun, and the judgment is reversed, and the cause
remanded for further proceedings. Pp.
358 U. S.
170-179.
(a) The question of the scope of collateral attack upon criminal
sentences in the circumstances of this case is not decided, since
it does not appear that the Government raised the question in the
courts below, and it is not tendered in this Court as a question
presented for decision. Pp.
358 U. S.
172-173.
(b) It is not clear from the statute, even when read in the
light of its legislative history, that Congress intended that a
single act of assault affecting two officers should constitute two
offenses under the statute. Pp.
358 U. S.
173-177.
(c) To hold that there are as many assaults committed as there
are officers affected would produce incongruous results. P.
358 U. S.
177.
Page 358 U. S. 170
(d) The meaning of this criminal statute being ambiguous, the
policy of lenity in the construction of criminal statutes requires
that the less harsh of two possible meanings be adopted. Pp.
358 U. S.
177-178.
(e) Since the District Court did not hold a hearing on
petitioner's motion, and the proceedings at petitioner's trial were
not transcribed, it will be necessary at the hearing on the motion
to reconstruct the trial record in order to determine whether
petitioner was properly convicted of more than one offense. Pp.
358 U. S.
178-179.
230 F.2d 726 reversed and case remanded for further
proceedings.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
The petitioner was convicted in the United States District Court
for the Southern District of Mississippi of assaulting two federal
officers with a deadly weapon in violation of former 18 U.S.C. §
254. [
Footnote 1] The court
sentenced the petitioner to the maximum punishment of 10 years'
imprisonment on each conviction of assault,
Page 358 U. S. 171
the sentences to run consecutively. [
Footnote 2] Upon completion of the first 10-year sentence,
the petitioner made a motion in the District Court, under 28 U.S.C.
§ 2255, to correct the second, and consecutive, sentence. He
supported his motion by allegations that the evidence at his trial
showed that he fired a single discharge from a shotgun into the
front seat of an automobile, and that the pellets wounded the two
federal officers, who were transporting an arrested prisoner. He
contended that in this circumstance he was guilty of but one
"assault" within the meaning of former § 254, and accordingly was
subject to only one punishment. The District Court denied his
motion, and the Court of Appeals for the Fifth Circuit affirmed.
230 F.2d 726. Both courts held that the wounding of two federal
officers by the single discharge of a shotgun would constitute a
separate offense against each officer under the statute. We granted
certiorari, 352 U.S. 907, to consider the construction of § 254 in
light of principles applied to construe the federal criminal
statutes involved in
Bell v. United States, 349 U. S.
81;
United States v. Universal C.I.T. Credit
Corp., 344 U. S. 218, and
Prince v. United States, 352 U. S. 322. We
affirmed the Court of Appeals by an equally divided Court,
355 U. S. 282, but
vacated our judgment, and set the case for reargument, when a
petition for rehearing was granted. 356 U.S. 969. Reargument was
had this Term.
Page 358 U. S. 172
It is suggested that the remedy under § 2255 is not available to
the petitioner in the circumstances of this case. The record does
not disclose that the Government raised this question in the
District Court or in the Court of Appeals, and the Government does
not tender it as a Question Presented for Decision in its brief in
this Court. This court has often reached the merits of a case
involving questions of statutory construction similar to that
presented in this case under former 18 U.S.C. § 254 in proceedings
by way of collateral attack upon consecutive sentences. In
In
re Snow, 120 U. S. 274, the
petitioner brought a habeas corpus proceeding after serving seven
months of three consecutive six-month sentences. He claimed that
the sentencing court had misinterpreted the applicable statute, and
that he had committed but a single offense punishable by a single
six-month sentence. This Court held that "the objection may be
taken on habeas corpus when the sentence on more than one of the
convictions is sought to be enforced."
Id. at
120 U. S. 285.
In
Bell v. United States, supra, a case on all fours with
the present case, the Court reached the question of statutory
construction over objection in the Government's brief in opposition
to the petition for certiorari that the question could not be
raised on motion under § 2255. Other cases in which the Court
reached and decided questions of statutory construction, although
the questions were raised by collateral attack on consecutive
sentences, include:
Tinder v. United States, 345 U.
S. 565 (§ 2255);
Gore v. United States,
357 U. S. 386 (§
2255);
Prince v. United States, supra (Federal Rule of
Criminal Procedure 35);
Ebeling v. Morgan, 237 U.
S. 625 (habeas corpus);
Morgan v. Devine,
237 U. S. 632
(habeas corpus). The fact that the Court has so often reached the
merits of the statutory construction issues in such proceedings
suggests that the availability of a collateral remedy is not a
jurisdictional question in the sense that, if not properly raised,
this
Page 358 U. S. 173
Court should nevertheless determine it
sua sponte.
Moreover, there was only meagre argument of the question of the
availability of the remedy in this case. The Government submitted
only a short discussion of the question in the body of its brief,
and made only a passing reference to it toward the close of the
oral argument. The question of the scope of collateral attack upon
criminal sentences is an important and complex one, judging from
the number of decisions discussing it in the District Courts and
the Courts of Appeals. We think that we should have the benefit of
a full argument before dealing with the question. We therefore
proceed to construe former 18 U.S.C. § 254 without, however,
intimating any view as to the availability of a collateral remedy
in another case where that question is properly raised, and is
adequately briefed and argued in this Court.
There is no constitutional issue presented. The question for
decision is as to the construction to be given former § 254 in the
circumstances alleged by the petitioner. Did Congress mean that the
single discharge of a shotgun would constitute one assault, and
thus only one offense, regardless of the number of officers
affected, or did Congress define a separate offense for each
federal officer affected by the doing of the act? The congressional
meaning is plainly open to question on the face of the statute,
which originated as § 2 of the Act of May 18, 1934. 48 Stat. 780.
The Government does not seriously contend otherwise, but emphasizes
that the legislative history shows that the statute was designed to
protect federal officers from personal harm, or the threat of
personal harm, in the performance of their duties, or on account of
the performance of their duties. From this premise, the Government
argues that there must be an offense for each officer who is put in
immediate apprehension of personal injury,
i.e.,
assaulted, and that each officer thus defines the unit of
prosecution. The position is summed up in
Page 358 U. S. 174
the Government's brief as follows:
"The legislation was aimed at protecting federal officers, not
only to promote the orderly functioning of the federal government
(whose efficiency would diminish in proportion to the number of
individual officers affected), but also to protect the individual
officers, as 'wards' of the federal government, from personal harm.
Both of these legislative objectives make the individual officers a
separate unit of protection."
However, we are unable to read the legislative history as
clearly illumining the statute with this meaning. The history is
scant, consisting largely of an Attorney General's letter
recommending the passage of the legislation, [
Footnote 3]
Page 358 U. S. 175
and sheds no real light on what Congress intended to be the unit
of prosecution. Although the letter mentions the need for
legislation for the protection of federal officers, it also speaks
of the need for legislation "to further the legitimate purposes of
the Federal government." From what appears, an argument at least as
plausible as the Government's may be made that the
congressional
Page 358 U. S. 176
aim was to prevent hindrance to the execution of official duty,
and thus to assure the carrying out of federal purposes and
interests, and was not to protect federal officers except as
incident to that aim. Support for this meaning may be found in the
fact that § 254 makes it unlawful not only to assault federal
officers engaged on official duty, but also forcibly to resist,
oppose, impede, intimidate, or interfere with such officers.
Clearly one may resist, oppose, or impede the officers or interfere
with the performance of their duties without placing them in
personal danger. Such a congressional aim would, of course, be
served by considering the act of hindrance as the unit of
prosecution without regard to the number of federal officers
affected by the act. For example, the locking of the door of a
building to prevent the entry of officers intending to arrest a
person within would be an act of hindrance denounced by the
statute. We cannot find clearly from the statute, even when read in
the light of its legislative history, that the Congress intended
that the person locking the door might commit as many crimes as
there are officers denied entry. And if we cannot find this meaning
in the supposed case, we cannot find that Congress intended that a
single act of assault affecting two officers constitutes two
offenses under the statute. The Government frankly conceded on the
oral argument that assault can be treated no differently from the
other outlawed activities, [
Footnote 4] and that if a single act of hindrance
Page 358 U. S. 177
which has an impact on two officers is only one offense when the
act is not an assault, an act of assault can be only one offense
even though it has an impact on two officers.
Moreover, an interpretation that there are as many assaults
committed as there are officers affected would produce incongruous
results. Punishments totally disproportionate to the act of assault
could be imposed, because it will often be the case that the number
of officers affected will have little bearing upon the seriousness
of the criminal act. For an assault is ordinarily held to be
committed merely by putting another in apprehension of harm,
whether or not the actor actually intends to inflict or is capable
of inflicting that harm. [
Footnote
5] Thus, under the meaning for which the Government contends,
one who shoots and seriously wounds an officer would commit one
offense punishable by 10 years' imprisonment, but if he points a
gun at five officers, putting all of them in apprehension of harm,
he would commit five offenses punishable by 50 years' imprisonment,
even though he does not fire the gun, and no officer actually
suffers injury. It is difficult, without a clear indication than
the materials before us provide, to find that Congress intended
this result.
It is therefore apparent that § 254 may as reasonably be read to
mean that the single discharge of the shotgun would constitute an
"assault" without regard to the number of federal officers
affected, as it may be read to mean that as many "assaults" would
be committed as there were officers affected. Neither the wording
of the statute nor its legislative history points clearly to either
meaning. In that circumstance, the Court applies a policy of
lenity, and adopts the less harsh meaning.
"[W]hen choice has to be made between two readings of what
conduct Congress has made a crime, it is appropriate, before we
choose
Page 358 U. S. 178
the harsher alternative, to require that Congress should have
spoken in language that is clear and definite. We should not derive
criminal outlawry from some ambiguous implication."
United States v. Universal C.I.T. Credit Corp.,
344 U. S. 218,
344 U. S.
221-222. And in
Bell v. United States,
349 U. S. 81,
349 U. S. 83,
the Court expressed this policy as follows:
"When Congress leaves to the Judiciary the task of imputing to
Congress an undeclared will, the ambiguity should be resolved in
favor of lenity."
See also Prince v. United States, supra; Gore v. United
States, 357 U. S. 386,
357 U. S. 391.
This policy of lenity means that the Court will not interpret a
federal criminal statute so as to increase the penalty that it
places on an individual when such an interpretation can be based on
no more than a guess as to what Congress intended. If Congress
desires to create multiple offenses from a single act affecting
more than one federal officer, Congress can make that meaning
clear. We thus hold that the single discharge of a shotgun alleged
by the petitioner in this case would constitute only a single
violation of § 254.
It follows that the petitioner is entitled to an opportunity to
sustain his allegation that his conviction of two assaults rested
upon evidence that the wounding of the two officers resulted from a
single discharge of the gun. [
Footnote 6] The District Court did not hold a hearing on
his motion, because of its view that the single discharge admitted
by him resulted in two assaults. But the Court of Appeals, in
affirming on the same ground, correctly acknowledged that, if this
were an erroneous view of the law,
"there is a necessity for the determination of such a factual
question
Page 358 U. S. 179
[and] there must be a hearing [at which] the [petitioner] is
entitled to be present."
230 F.2d at 726, 728.
See United States v. Hayman,
342 U. S. 205,
342 U. S.
219-220;
Walker v. Johnston, 312 U.
S. 275. Because the proceedings at the petitioner's
trial were not transcribed, [
Footnote 7] it will be necessary at the hearing on the
motion to reconstruct the trial record. We decide only the issue
tendered by the parties, and intimate no view as to whether the
petitioner may be entitled to correction of the consecutive
sentence under any different fact situation which the reconstructed
trial record may disclose.
The judgment of the Court of Appeals is reversed and the case is
remanded to the District Court for further proceedings consistent
with this opinion.
It is so ordered.
[
Footnote 1]
That statute provides:
"Whoever shall forcibly resist, oppose, impede, intimidate, or
interfere with any person . . . [if he is a federal officer
designated in § 253] while engaged in the performance of his
official duties, or shall assault him on account of the performance
of his official duties, shall be . . . imprisoned not more than
three years . . . ; and whoever, in the commission of any of the
acts described in this section, shall use a deadly or dangerous
weapon shall be . . . imprisoned not more than ten years. . .
."
18 U.S.C. (1940 ed.) § 254.
[
Footnote 2]
Ladner was convicted by a jury on three separate counts -- one
for conspiring to assault the officers, a second for assaulting one
of the officers, and a third for assaulting the other officer. He
was sentenced for two years on the conspiracy count, which sentence
was to run concurrently with a 10-year sentence for assaulting one
of the officers. A 10-year sentence imposed for the assault on the
second officer was to run from and after the expiration of the
first two sentences. Thus, Ladner was sentenced to a total jail
term of 20 years. The proceedings instituted by Ladner's
co-conspirator, one Cameron, for post-conviction relief are
reported in
United States v. Cameron, 84 F. Supp.
289.
[
Footnote 3]
The letter, of January 3, 1934, to Senator Ashurst, Chairman of
the Senate Committee on the Judiciary, is as follows:
"My dear Senator:"
"I wish again to renew the recommendation of this Department
that legislation be enacted making it a Federal offense forcibly to
resist, impede, or interfere with, or to assault or kill, any
official or employee of the United States while engaged in, or on
account of, the performance of his official duties. Congress has
already made it a Federal offense to assault, resist, etc.,
officers or employees of the Bureau of Animal Industry of the
Department of Agriculture while engaged in or on account of the
execution of their duties (sec. 62, C.C., sec. 118, title 18,
U.S.C.); to assault, resist, etc., officers and others of the
Customs and Internal Revenue, while engaged in the execution of
their duties (sec. 65, C.C., sec. 121, title 18, U.S.C.); to
assault, resist, beat, wound, etc., any officer of the United
States, or other person duly authorized while serving or attempting
to serve the process of any court of the United States (sec. 140,
C.C., sec. 245, title 18, U.S.C.); and to assault, resist, etc.,
immigration officials or employees while engaged in the performance
of their duties (sec. 16, Immigration Act of Feb. 5, 1917, c. 29,
39 Stat. 885, sec. 152, title 8, U.S.C.). Three of the statutes
just cited impose an increased penalty when a deadly or dangerous
weapon is used in resisting the officer or employee."
"The need for general legislation of the same character, for the
protection of Federal officers and employees other than those
specifically embraced in the statutes above cited, becomes
increasingly apparent every day. The Federal Government should not
be compelled to rely upon the courts of the States, however
respectable and well disposed, for the protection of its
investigative and law enforcement personnel; and Congress has
recognized this fact at least to the extent indicated by the
special acts above cited. This Department has found need for
similar legislation for the adequate protection of the special
agents of its division of investigation, several of whom have been
assaulted in the course of a year while in the performance of their
official duties."
"In these cases, resort must usually be had to the local police
court, which affords but little relief to us, under the
circumstances, in our effort to further the legitimate purposes of
the Federal Government. It would seem to be preferable, however,
instead of further extending the piecemeal legislation now on the
statute books, to enact a broad general statute to embrace all
proper cases, both within and outside the scope of existing
legislation. Other cases in point are assaults on letter carriers,
to cover which the Post Office Department has for several years
past sought legislation, and the serious wounding, a couple of
years ago, of the warden of the Federal Penitentiary at Leavenworth
by escaped convicts outside the Federal jurisdiction. In the latter
case, it was possible to punish the escaped convicts under Federal
law for their escape, but they could not be punished under any
Federal law for the shooting of the warden."
"I have the honor, therefore, to enclose herewith a copy of S.
3184, which was introduced at the request of this Department in the
Seventy-second Congress, and to urge its reintroduction in the
present Congress, and to express the hope that it may receive the
prompt and serious consideration of your committee."
"Respectfully,"
"Homer Cummings,"
"
Attorney General"
See, for the legislative history, S.Rep. No. 535, 73d
Cong., 2d Sess.; H.R.Rep. No. 1455, 73d Cong., 2d Sess.; 78
Cong.Rec. 8126-8127.
[
Footnote 4]
This concession by the Government seems necessary in view of the
lack of any indication that assault was to be treated differently,
and in light of 18 U.S.C. § 111, the present recodification of §
254, which lumps assault in with the rest of the offensive actions.
The statute now provides that "Whoever forcibly assaults, resists,
opposes, impedes, intimidates, or interferes with" any designated
federal officer "while engaged in or on account of the performance
of his official duties" is committing a crime. The Reviser's Note
indicates that this change in wording was not intended to be a
substantive one.
[
Footnote 5]
See Burdick, Law of Crime (1946), § 342; Clark and
Marshall, Law of Crimes (1958), § 10.16; Miller on Criminal Law
(1934) § 99.
[
Footnote 6]
In view of the trial judge's recollection that "more than one
shot was fired into the car in which the officers were riding . . .
," we cannot say that it is impossible that petitioner was properly
convicted of more than one offense, even under the principles which
govern here.
[
Footnote 7]
Although 58 Stat. 5, now 28 U.S.C. § 753, which provides for the
recording of all proceedings in criminal cases, was enacted on
January 20, 1944, Congress had not appropriated funds for the
payment of court reporters at the time of the trial in June, 1944.
See Richard v. United States, 148 F.2d 895;
Vickers v.
United States, 157 F.2d 285.
MR. JUSTICE CLARK (dissenting).
By what to me is a dubious route, permitting a collateral attack
to be made on this old judgment under § 2255 [
Footnote 2/1] proceedings, the Court reaches the merits
only to agree fully with Ladner's contentions. As I see it, this
enlargement of jurisdiction under § 2255 will subject the trial
court dockets to a rash of applications by prisoners and completely
overturn the purpose of the Congress in adopting the § 2255
procedure in lieu of habeas corpus. Moreover, it appears that, by
adopting Ladner's view on the merits, the Court clearly informs the
criminal, if I might be permitted to borrow a phrase, that assaults
on
Page 358 U. S. 180
the lives of federal officers come just "as cheap by the
dozen."
Nearly fourteen years ago, two federal officers were ambushed
and seriously wounded by Ladner when he shot them point-blank with
a shotgun as they sat in the front seat of a vehicle transporting
some prisoners arrested in a raid on an illicit distillery. He was
convicted of an assault on each of the officers. Ladner contends
that he fired only a single charge from the shotgun, and is
therefore guilty of only one offense, regardless of the number of
officers assaulted.
The principal issue, as I see the case, is the procedural one
under § 2255, namely whether the Court should allow this collateral
attack on Ladner's sentence. This important question, both argued
and briefed by the Government, is, I think, wrongly decided by the
Court. These proceedings are by motion under § 2255 to correct the
consecutive sentences of ten years imposed on each of Counts 2 and
3 of the indictment. Count 2 charges an assault on Officer James
Buford Reed, while Count 3 charges one on Officer W. W. Frost. The
record is unclear, as the Court points out, as to how many
discharges of the shotgun Ladner fired into the vehicle. Hence, a
determination of that issue must be made by the trial court on
remand of the case.
Clearly this is an error that should have been raised by appeal.
It did not undermine the jurisdiction of the original trial court,
for, under the allegations of the indictment, these counts clearly
state separate offenses. It raises no constitutional issue. The
history of § 2255 clearly reveals that such an attack was not
authorized. Reference to
United States v. Hayman,
342 U. S. 205
(1952), gives us a complete picture. The Judicial Conference of the
United States proposed § 2255 to remedy the "practical problems
that had arisen in the administration of the federal
Page 358 U. S. 181
courts' habeas corpus jurisdiction." The Conference in
submitting the measure to the Congress noted that
"The motion remedy broadly covers all situations where the
sentence is 'open to collateral attack.' As a remedy, it is
intended to be as broad as habeas corpus."
Hayman, supra, at
342 U. S. 217.
It is clear that, in enacting § 2255, Congress did not intend to
enlarge the available grounds for collateral attack, but rather
sought only to correct serious administrative problems that had
developed in the exercise over the years of habeas corpus
jurisdiction.
The Court today holds that the trial court may have committed an
error of law which will require the reconstruction of the evidence
as to the number of shots fired by Ladner. As I have indicated,
this may require a retrial of this fourteen-year-old case. Here,
the indictment and judgment are admittedly regular on their faces.
The dispute is entirely with the facts of the incident. The issue,
therefore, is squarely governed by the principles of
Sunal v.
Large, 332 U. S. 174
(1947). That was a habeas corpus proceeding attacking a conviction
admittedly obtained as a result of error of the trial court. As
here, neither the jurisdiction of the trial court nor claimed
constitutional violations were at issue. The Court, speaking
through MR. JUSTICE DOUGLAS, said:
"Congress . . . has provided a regular, orderly method for
correction of all such errors by granting an appeal to the Circuit
Courts of Appeals and by vesting us with certiorari jurisdiction. .
. . Every error is potentially reversible error, and many rulings
of the trial court spell the difference between conviction and
acquittal. If defendants who accept the judgment of conviction and
do not appeal can later renew their attack on the judgment by
habeas corpus,
Page 358 U. S. 182
litigation in these criminal cases will be interminable. Wise
judicial administration of the federal courts counsels against such
course, at least where the error does not trench on any
constitutional rights of defendants nor involve the jurisdiction of
the trial court."
332 U.S. at
332 U. S.
181-182.
The history and language of § 2255 show that the same
limitations are present in such proceedings, and that they are
equally jurisdictional. What was enacted by Congress to solve the
practical problems created by the "great increases" in habeas
corpus applications today becomes the tool by which prisoners can
pry open their convictions on even broader grounds than were ever
permitted theretofore. It appears entirely probable that a much
greater administrative problem will result than confronted the
courts before the enactment of § 2255.
The Court cites seven cases in which we decided "questions of
statutory construction" although the questions were raised by
"collateral attack upon consecutive sentences. . . ." But those
cases only point up my position the more,
i.e., that a
collateral attack can be made only where the error in the sentence
is apparent from the facts alleged in the four corners of the
indictment or admitted by the parties. In five of the cases,
i.e., In re Snow, 120 U. S. 274
(1887);
Tinder v. United States, 345 U.
S. 565 (1953);
Gore v. United States,
357 U. S. 386
(1958);
Prince v. United States, 352 U.
S. 322 (1957), and
Ebeling v. Morgan,
237 U. S. 625
(1915), the error in sentencing is apparent from the face of the
indictment. In the remaining two cases,
Bell v. United
States, 349 U. S. 81
(1955); [
Footnote 2/2] and
Morgan v. Devine, 237 U. S. 632
(1915), the facts were admitted. The importance of this
Page 358 U. S. 183
distinction is indicated by the Court in
Prince, where
it goes out of its way to point out that it was admitted by
respondent that the robbery charged in Count 1 was performed
immediately after the entry into the bank, charged in Count 2. The
majority cannot point to a single case in this Court where
collateral attack on consecutive sentences has been permitted under
§ 2255 when the facts were in dispute. There is none. The law has
long been settled, formerly under habeas corpus and now under §
2255, to the contrary.
However, even more surprising to me, as it runs counter to my
understanding of efficient judicial administration, is the Court's
statement that its holding today should not be considered as
"intimating any view as to the availability of a collateral
remedy in another case where that question is properly raised, and
is adequately briefed and argued in this Court."
I find no counterpart for such a handling in our precedents.
Implicit therein is the suggestion that, come another case where
the point is "properly raised [and] adequately briefed and argued
in this Court," [
Footnote 2/3] then
the conclusion will be different. Meanwhile, the Court says,
Ladner is no precedent on the question of "the
availability of a collateral remedy." Despite this, the Court
permits its use here. This
ad hoc disposition is not in
keeping with good business conduct so necessary in court
administration.
I do not reach the merits. The Congress, however, may correct
that error of the Court. But the
ad hoc manner in which it
has today disposed of the case we shall have with us always -- a
precedent for others to follow.
[
Footnote 2/1]
28 U.S.C. § 2255 (1952).
[
Footnote 2/2]
Though the § 2255 issue was mentioned in the Government's reply
to the petition for certiorari in
Bell, the question was
not briefed nor argued on the merits.
[
Footnote 2/3]
The point was raised in this Court. The Government devoted four
and one-half pages of its 29-page brief to it, discussing 18
separate cases. My research of the question indicates there would
be little to add to the Government's discussion.