UNITED STATES v. YERMIAN
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued March 27, 1984
Decided June 27, 1984
Title 18 U.S.C. 1001 provides that "[w]hoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully . . . makes any false, fictitious or fraudulent statements . . . shall be fined . . . ." Respondent was convicted in Federal District Court of violating 1001 on the basis of false statements he furnished his defense contractor employer in connection with a Department of Defense security questionnaire. At trial, respondent admitted having actual knowledge of the falsity of the statements, but requested a jury instruction requiring the Government to prove not only that he had actual knowledge of the falsity but also that he had actual knowledge that the statements were made in a matter within the jurisdiction of a federal agency. The District Court rejected this request and instead, over respondent's objection, instructed the jury that the Government must prove that respondent "knew or should have known" that the information was to be submitted to a federal agency. The Court of Appeals reversed, holding that the District Court erred in failing to give respondent's requested instruction.
Both the plain language and legislative history of 1001 establish that proof of actual knowledge of federal agency jurisdiction is not required to obtain a conviction under the statute. Pp. 68-75.
POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, MARSHALL, and BLACKMUN, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which BRENNAN, STEVENS, and O'CONNOR, JJ., joined, post, p. 75.
Carolyn F. Corwin argued the cause for the United States. With her on the briefs were Solicitor General Lee, Assistant Attorney General Trott, and Deputy Solicitor General Frey.
Stephen J. Hillman, by appointment of the Court, 464 U.S. 1036 , argued the cause for respondent. With him on the brief was James R. Dunn.
JUSTICE POWELL delivered the opinion of the Court.
It is a federal crime under 18 U.S.C. 1001 to make any false or fraudulent statement in any matter within the jurisdiction of a federal agency. 1 To establish a violation of 1001, the Government must prove beyond a reasonable doubt that the statement was made with knowledge of its falsity. This case presents the question whether the Government [468 U.S. 63, 65] also must prove that the false statement was made with actual knowledge of federal agency jurisdiction.
Respondent Esmail Yermian was convicted in the District Court of Central California on three counts of making false statements in a matter within the jurisdiction of a federal agency, in violation of 1001. The convictions were based on false statements respondent supplied his employer in connection with a Department of Defense security questionnaire. Respondent was hired in 1979 by Gulton Industries, a defense contractor. Because respondent was to have access to classified material in the course of his employment, he was required to obtain a Department of Defense Security Clearance. To this end, Gulton's security officer asked respondent to fill out a "Worksheet For Preparation of Personnel Security Questionnaire."
In response to a question on the worksheet asking whether he had ever been charged with any violation of law, respondent failed to disclose that in 1978 he had been convicted of mail fraud, in violation of 18 U.S.C. 1341. In describing his employment history, respondent falsely stated that he had been employed by two companies that had in fact never employed him. The Gulton security officer typed these false representations onto a form entitled "Department of Defense Personnel Security Questionnaire." Respondent reviewed the typed document for errors and signed a certification stating that his answers were "true, complete, and correct to the best of [his] knowledge" and that he understood "that any misrepresentation or false statement . . . may subject [him] to prosecution under section 1001 of the United States Criminal Code." App. 33.
After witnessing respondent's signature, Gulton's security officer mailed the typed form to the Defense Industrial Security Clearance Office for processing. Government investigators subsequently discovered that respondent had submitted [468 U.S. 63, 66] false statements on the security questionnaire. Confronted with this discovery, respondent acknowledged that he had responded falsely to questions regarding his criminal record and employment history. On the basis of these false statements, respondent was charged with three counts in violation of 1001.
At trial, respondent admitted to having actual knowledge of the falsity of the statements he had submitted in response to the Department of Defense security questionnaire. He explained that he had made the false statements so that information on the security questionnaire would be consistent with similar fabrications he had submitted to Gulton in his employment application. Respondent's sole defense at trial was that he had no actual knowledge that his false statements would be transmitted to a federal agency. 2
Consistent with this defense, respondent requested a jury instruction requiring the Government to prove not only that he had actual knowledge that his statements were false at the time they were made, but also that he had actual knowledge that those statements were made in a matter within the jurisdiction of a federal agency. 3 The District Court rejected that request and instead instructed the jury that the Government must prove that respondent "knew or should have known [468 U.S. 63, 67] that the information was to be submitted to a government agency." 4 Respondent's objection to this instruction was overruled, and the jury returned convictions on all three counts charged in the indictment.
The Court of Appeals for the Ninth Circuit reversed, holding that the District Court had erred in failing to give respondent's requested instruction. 708 F.2d 365 (1983). The Court of Appeals read the statutory terms "knowingly and willfully" to modify both the conduct of making false statements and the circumstance that they be made "in any matter within the jurisdiction of [a federal agency]." The court therefore concluded that "as an essential element of a section 1001 violation, the government must prove beyond a reasonable doubt that the defendant knew at the time he made the false statement that it was made in a matter within the jurisdiction of a federal agency." Id., at 371 (footnotes omitted). The Court of Appeals rejected the Government's argument that the "reasonably foreseeable" standard provided by the District Court's jury instructions satisfied any element of intent possibly associated with the requirement that false statements be made within federal agency jurisdiction. Id., at 371-372.
The decision of the Court of Appeals for the Ninth Circuit conflicts with decisions by the three other Courts of Appeals [468 U.S. 63, 68] that have considered the issue. United States v. Baker, 626 F.2d 512 (CA5 1980); United States v. Lewis, 587 F.2d 854 (CA6 1978) (per curiam); United States v. Stanford, 589 F.2d 285 (CA7 1978), cert. denied, 440 U.S. 983 (1979). We granted certiorari to resolve the conflict, 464 U.S. 991 (1983), and now reverse.
The only issue presented in this case is whether Congress intended the terms "knowingly and willfully" in 1001 to modify the statute's jurisdictional language, thereby requiring the Government to prove that false statements were made with actual knowledge of federal agency jurisdiction. 5 The issue thus presented is one of statutory interpretation. Accordingly, we turn first to the language of the statute.
The relevant language of 1001 provides:
The first federal criminal statute prohibiting the making of a false statement in matters within the jurisdiction of any federal agency was the Act of October 23, 1918 (1918 Act), ch. 194, 40 Stat. 1015. 8 That Act provided in pertinent part:
Concerned that the 1918 Act, as thus narrowly construed, was insufficient to protect the authorized functions of federal agencies from a variety of deceptive practices, Congress undertook to amend the federal false-statements statute in 1934. 9 The 1934 provision finally enacted, however, rejected the language suggested in Cohn, and evidenced a conscious choice not to limit the prohibition to false statements made with specific intent to deceive the Federal Government.
The first attempt to amend the false-statements statute was unsuccessful. After debates in both Houses, Congress passed H. R. 8046. That bill provided in pertinent part:
To remedy the President's concerns, Congress quickly passed a second bill that broadened the scope of the federal false-statements statute by omitting the specific-intent language of the prior bill. The 1934 provision finally enacted into law provided in pertinent part:
Finally, there is no support in the legislative history for respondent's argument that the terms "knowingly and willfully" modify the phrase "in any matter within the jurisdiction of [a federal agency]." The terms "knowingly and willfully" appeared in the 1918 Act, but the phrase "in any matter within the jurisdiction of [a federal agency]" did not. It is clear, therefore, that in the 1918 Act the terms "knowingly [468 U.S. 63, 74] and willfully" did not require proof of actual knowledge of federal involvement. Nor does the legislative history suggest that by adding the jurisdictional prerequisite to the current provision Congress intended to extend the scope of those two terms. The jurisdictional language was added to the current provision solely to limit the reach of the false-statements statute to matters of federal interest.
By requiring proof of specific intent to defraud the United States, Congress limited the 1918 prohibition to matters pertaining to federal concern. There was no reason, therefore, to include the phrase "in any matter within the jurisdiction of [a federal agency]." Once the specific-intent language of the 1918 Act was eliminated, however, the current jurisdictional phrase was necessary to ensure that application of the federal prohibition remained limited to issues of federal concern. There is no indication that the addition of this phrase was intended also to change the meaning of the terms "knowingly and willfully" to require proof of actual knowledge of federal involvement. As this Court observed in United States v. Bramblett, 348 U.S. 503 (1955), the 1934 enactment "deleted all words as to purpose," and inserted the phrase "in any matter within the jurisdiction" of a federal agency "simply to compensate for the deleted language as to purpose - to indicate that not all falsifications but only those made to government organs were reached." Id., at 506, 507-508.
Respondent argues that absent proof of actual knowledge of federal agency jurisdiction, 1001 becomes a "trap for the unwary," imposing criminal sanctions on "wholly innocent conduct." Whether or not respondent fairly may characterize the intentional and deliberate lies prohibited by the statute (and manifest in this case) as "wholly innocent conduct," this argument is not sufficient to overcome the express statutory language of 1001. Respondent does not argue that Congress lacks the power to impose criminal sanctions for [468 U.S. 63, 75] deliberately false statements submitted to a federal agency, regardless of whether the person who made such statements actually knew that they were being submitted to the Federal Government. Cf. Feola, 420 U.S., at 676 , n. 9. That is precisely what Congress has done here. In the unlikely event that 1001 could be the basis for imposing an unduly harsh result on those who intentionally make false statements to the Federal Government, it is for Congress and not this Court to amend the criminal statute. 14
Both the plain language and the legislative history establish that proof of actual knowledge of federal agency jurisdiction is not required under 1001. Accordingly, we reverse the decision of the Court of Appeals to the contrary.
[ Footnote 2 ] Respondent maintained this defense despite the fact that both the worksheet and the questionnaire made reference to the Department of Defense, and the security questionnaire signed by respondent was captioned "Defense Department." The latter document also contained a reference to the "Defense Industrial Security Clearance Office," stated that respondent's work would require access to "secret" material, and informed respondent that his signature would grant "permission to the Department of Defense to obtain and review copies of [his] medical and institutional records." App. 29, 32. Nevertheless, respondent testified that he had not read the form carefully before signing it and thus had not noticed either the words "Department of Defense" on the first page or the certification printed above the signature block.
[ Footnote 3 ] Respondent's proposed instruction would have informed the jury:
[ Footnote 4 ] The jury instructions concerning the essential elements of a 1001 violation read in full:
[ Footnote 5 ] The Government never objected to the District Court's instruction requiring proof that respondent reasonably should have known that his false statements were made within the jurisdiction of a federal agency. Thus, in this case the Government was required to prove that federal agency jurisdiction was reasonably foreseeable. See n. 14, infra.
[ Footnote 6 ] The structure of the statutory language found in the 1934 predecessor to 1001 made the issue equally clear. The jurisdictional language of that provision appeared as a separate phrase at the end of the description of the prohibited conduct and provided in pertinent part:
[ Footnote 7 ] Because the statutory language unambiguously dispenses with an actual knowledge requirement, we have no occasion to apply the principle of lenity urged by the dissent. See McElroy v. United States, 455 U.S. 642, 658 (1982); United States v. Bramblett, 348 U.S. 503, 509 -510 (1955) (although "criminal statutes are to be construed strictly . . ., this does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature").
[ Footnote 8 ] The earliest predecessor of the 1918 Act limited its criminal sanctions to false claims made by military personnel and presented to "any person or officer in the civil or military service of the United States." Act of Mar. 2, 1863, 12 Stat. 696. The Act was extended in 1873 to cover "every person" - not merely military personnel - who presented a false claim to an officer or agent of the United States. Act of Dec. 1, 1873, approved June 22, 1874. In 1908 and 1909, the penalties of the Act were changed, and the statutory provision was redesignated as 35. Act of May 30, 1908, 35 Stat. 555; Act of Mar. 4, 1909, 35 Stat. 1088. The 1918 Act revised 35 and added the false-statements provision relevant here. 40 Stat. 1015.
[ Footnote 9 ] See H. R. Rep. No. 829, 73d Cong., 2d Sess., 1-2 (1934); 78 Cong. Rec. 3724 (1934).
[ Footnote 10 ] The Senate initially had proposed a similar bill (S. 2686), but that bill omitted the essential element of specific intent to defraud the United States. The Senate bill provided in relevant part:
[ Footnote 11 ] The President's veto message read in part as follows:
[ Footnote 12 ] See United States v. Godwin, 566 F.2d 975, 976 (CA5 1978) ("Intent to deceive and intent to defraud are not synonymous. Deceive is to cause to believe the false or to mislead. Defraud is to deprive of some right, interest or property by deceit"). Accord, United States v. Lichenstein, 610 F.2d 1272 (CA5), cert. denied, 447 U.S. 907 (1980).
[ Footnote 13 ] The dissent suggests that when Congress eliminated the phrase "with intent to defraud the United States," it really meant only to eliminate the word "defraud," but to retain the element of intent with respect to the United States. See post, at 81-82. If that had been the intention of Congress, it simply would have replaced the word "defraud" with the word "deceive" and retained the express-intent requirement. Congress did not do so, and this Court should not rewrite the statute in a way that Congress did not intend.
[ Footnote 14 ] In the context of this case, respondent's argument that 1001 is a "trap for the unwary" is particularly misplaced. It is worth noting that the jury was instructed, without objection from the prosecution, that the Government must prove that respondent "knew or should have known" that his false statements were made within the jurisdiction of a federal agency.
As the Government did not object to the reasonable-foreseeability instruction, it is unnecessary for us to decide whether that instruction erroneously read a culpability requirement into the jurisdictional phrase. Moreover, the only question presented in this case is whether the Government must prove that the false statement was made with actual knowledge of federal agency jurisdiction. The jury's finding that federal agency jurisdiction was reasonably foreseeable by the defendant, combined with the requirement that the defendant had actual knowledge of the falsity of those statements, precludes the possibility that criminal penalties were imposed on the basis of innocent conduct.
JUSTICE REHNQUIST, with whom JUSTICE BRENNAN, JUSTICE STEVENS, and JUSTICE O'CONNOR join, dissenting.
It is common ground that in a prosecution for the making of false statements the Government must prove that the defendant actually knew that the statements were false at the [468 U.S. 63, 76] time he made them. See Bryson v. United States, 396 U.S. 64, 68 -70 (1969). The question presented here is whether the Government must also prove that the defendant actually knew that his statements were made in a matter within "the jurisdiction of any department or agency of the United States." The Court concludes that the plain language and the legislative history of 18 U.S.C. 1001 conclusively establish that the statute is intended to reach false statements made without actual knowledge of federal involvement in the subject matter of the false statements. I cannot agree.
The Court nonetheless proceeds on the assumption that some lesser culpability standard is required in 1001 prosecutions, but declines to decide what that lesser standard is. Even if I agreed with the Court that actual knowledge of federal involvement is not required here, I could not agree with the Court's disposition of this case because it reverses the Court of Appeals without determining for itself, or remanding for the lower court to determine, whether the jury instructions in respondent's case were proper. I think that our certiorari jurisdiction is best exercised to resolve conflicts in statutory construction, and not simply to decide whether a jury in a particular case was correctly charged as to the elements of the offense. But here the Court, in a remarkable display of left-footedness, accomplishes neither result: reading its opinion from beginning to end, one neither knows what the congressionally intended element of intent is, nor whether the jury was properly instructed in this case.
I think that in this case, "[a]fter `seiz[ing] every thing from which aid can be derived,' United States v. Fisher, 2 Cranch 358, 386 (1805) (Marshall, C. J.), we are left with an ambiguous statute." United States v. Bass, 404 U.S. 336, 347 (1971). Notwithstanding the majority's repeated, but sparsely supported, assertions that the evidence of Congress' intent not to require actual knowledge is "convincing," and "unambiguou[s]," ante, at 69, and n. 7, 73, I believe that the [468 U.S. 63, 77] language and legislative history of 1001 can provide "no more than a guess as to what Congress intended." Ladner v. United States, 358 U.S. 169, 178 (1958). I therefore think that the canon of statutory construction which requires that "ambiguity concerning the ambit of criminal statutes . . . be resolved in favor of lenity," Rewis v. United States, 401 U.S. 808, 812 (1971), is applicable here. Accordingly, I would affirm the Court of Appeals' conclusion that actual knowledge of federal involvement is a necessary element for conviction under 1001.
The federal false-statements statute, 18 U.S.C. 1001, provides that
In drawing that conclusion, the Court does no more than point out that the "in any matter" language is placed at the beginning of the sentence in a phrase separate from the later phrase specifying the prohibited conduct. The Court then concludes that under any "natural reading" of the statute, it is clear that "knowingly and willfully" modify only the phrase specifying the prohibited conduct. Ante, at 69-70. Although "there is no errorless test for identifying or recognizing `plain' or `unambiguous' language" in a statute, United States v. Turkette, supra, at 580, the Court's reasoning here amounts to little more than simply pointing to the ambiguous phrases and proclaiming them clear. In my view, it is quite impossible to tell which phrases the terms "knowingly and willfully" modify, and the magic wand of ipse dixit does [468 U.S. 63, 78] nothing to resolve that ambiguity. I agree with the Court of Appeals that
The legislative history is similarly unclear, but in my view, slightly more supportive of respondent's position than of the Court's position. It is in any event certainly not the kind of clear expression of legislative intent which is sufficient to explain an otherwise ambiguous statute and to overcome the application of the rule of lenity.
As the Court points out, the 1918 Act was the first federal prohibition on the making of false statements, and that Act included language requiring that the prohibited false statements be made "for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States, or any department thereof." Act of Oct. 23, 1918, ch. 194, 40 Stat. 1015. All agree that that quoted language directly supports the Court of Appeals' holding here, Brief for United States 10, and the Court rests its entire holding on the absence of that language in the current statute. Ante, at 71-74.
Examination of the evolution of the statute, however, reveals only meager support for the Court's conclusion that Congress made "a conscious choice," ante, at 71, to eliminate the requirement of actual knowledge of federal involvement when it deleted the quoted language. To me, the change in the statutory language is as readily explained by Congress' desire to eliminate, not the intent requirement, but rather the "cheating and swindling or defrauding" language - language which this Court in United States v. Cohn, 270 U.S. 339, 346 -347 (1926), had relied on in construing the 1918 Act narrowly to apply only to "the fraudulent causing of pecuniary or property loss" to the Federal Government.
In Cohn the Court expressly rejected the Government's argument that Congress intended the 1918 Act to go beyond [468 U.S. 63, 80] merely protecting the Government from being cheated out of its own money or property, and in addition intended it to protect the Government from the interference with and obstruction of any of its lawful functions by deceitful or fraudulent means. Ibid. The Court specifically focused on the use of the word "defraud" in the statute and concluded that even when used in connection with the words "cheating and swindling," the word "defraud" is only to be given its ordinary meaning of "fraudulent[ly] causing . . . pecuniary or property loss." Ibid.
The restricted scope of the 1918 Act resulting from the Cohn decision became a serious problem with the advent of the New Deal programs in the 1930's. Early in 1934 Secretary of the Interior Ickes contacted the Chairmen of the House and Senate Judiciary Committees and proposed a false-statements bill, intended to be broader than the 1918 Act, that would fill a gap he perceived in the present Criminal Code. See H. R. Rep. No. 829, 73d Cong., 2d Sess., 1-2 (1934); 78 Cong. Rec. 2858-2859 (1934). In particular the Secretary was concerned that there were at present no statutes outlawing, for example, the presentation of false documents and statements to the Department of the Interior in connection with the shipment of "hot oil," or to the Public Works Administration in connection with the transaction of business with that agency. See S. Rep. No. 1202, 73d Cong., 2d Sess., 1 (1934).
To address the Secretary's concerns, both the House and the Senate tried their hands at drafting a bill penalizing the making of false statements in connection with areas of federal agency concern. The House version, H. R. 8046, which was the version finally passed, provided:
In spite of the noble goals and colorful metaphors that H. R. 8046 carried with it, President Roosevelt vetoed the bill for what seems now to be a rather obvious reason. In his veto message President Roosevelt pointed out that the statute as drafted was superfluous - it prohibited the very same conduct that was already prohibited by the 1918 Act and it even specified lesser penalties for that conduct. Id., at 6778-6779. Indeed in comparing the bill with the 1918 Act, it is all too obvious that when Congress made the prohibition depend on an intent to defraud, it subjected the new statute to the same narrowing construction that the Court had given to the 1918 Act in Cohn - the very construction that had created the need for the new Act. Thus, to eliminate the President's problems with the bill, Congress simply enhanced the penalties provision and omitted the limiting language. That language, of course, was the "intent to defraud the United States" language. Another bill, H. R. [468 U.S. 63, 82] 8912, was then passed by both Houses, 78 Cong. Rec. 12452 (1934), and, for purposes of this case, the statute assumed its present form, except for the phraseology changes made in the 1948 revision previously discussed.
Of course the Court is correct that Congress could have made its intent clearer by rewriting the limiting language so as to require an "intent to deceive" rather than an "intent to defraud" the Federal Government. See ante, at 73, and n. 13. But the fact still remains that nowhere in the admittedly sparse legislative history is there any indication that Congress intended the postveto changes to alter the culpability requirement that had been a part of the Act since 1918. Indeed in United States v. Gilliland, 312 U.S. 86, 94 (1941), we pointed out that the purpose of the amendment simply was to "omi[t] the limiting words which had been deemed to make the former provision applicable only to cases where pecuniary or property loss to the government had been caused" (footnote omitted). It seems to me highly unlikely that, without so much as a hint of explanation, Congress would have changed the statute from one intended to deter the perpetration of deliberate deceit on the Federal Government, to one intended to criminalize the making of even the most casual false statements so long as they turned out, unbeknownst to their maker, to be material to some federal agency function. The latter interpretation would substantially extend the scope of the statute even to reach, for example, false statements privately made to a neighbor if the neighbor then uses those statements in connection with his work for a federal agency.
Of course "[i]t is not unprecedented for Congress to enact [such] stringent legislation," United States v. Feola, 420 U.S. 671, 709 (1975) (Stewart, J., dissenting). But I cannot subscribe to the Court's interpretation of this statute in such a way as to "make a surprisingly broad range of unremarkable conduct a violation of federal law," Williams v. United States, 458 U.S. 279, 286 (1982), when the legislative history [468 U.S. 63, 83] simply "fails to evidence congressional awareness of the statute's claimed scope." Id., at 290. Thus, I would hold that the rule of lenity is applicable in this case and that it requires the Government to prove that a defendant in a 1001 prosecution had actual knowledge that his false statements were made in a matter within federal agency jurisdiction.
Seemingly aware of the broad range of conduct that 1001 could sweep within its scope under today's interpretation, the Court apparently does not hold that the words "in any matter within the jurisdiction of any department or agency of the United States" are jurisdictional words only and that no state of mind is required with respect to federal agency involvement. Ante, at 68-69, and n. 5. Instead, the Court suggests that some lesser state of mind may well be required in 1001 prosecutions in order to prevent the statute from becoming a "trap for the unwary." Ante, at 75, n. 14. Accordingly, it expressly declines to decide whether the trial judge erred in its jury instructions in this case. Ibid.
In my view, the Court has simply disregarded the clearest, albeit not conclusive, evidence of legislative intent and then has invited lower courts to improvise a new state-of-mind requirement, almost out of thin air, in order to avoid the unfairness of the Court's decision today. I think that the Court's opinion will engender more confusion than it will resolve with respect to the culpability requirement in 1001 cases not before the Court. And, unfortunately, it tells us absolutely nothing about whether respondent Yermian received a proper jury instruction in the case that is before the Court.
If the proper standard is something other than "actual knowledge" or "reasonable foreseeability," then respondent is entitled to a new trial and a proper instruction under that standard. The Court seems to believe that the question of the proper culpability requirement is not before it, ante, at 68, n. 5, 75, n. 14, because it apparently concludes that that [468 U.S. 63, 84] question is not embraced in the Governments' petition for certiorari asking for review of the Court of Appeals' holding with respect to the actual knowledge standard. See Pet. for Cert. I. Apparently the Court believes that respondent should have filed a cross-petition for certiorari if he wished to raise the issue of the proper standard and the propriety of the jury instructions in his case. But it is an elementary proposition that a "cross-petition is not necessary to enable a party to advance any ground, even one rejected or not raised below, in support of the judgment in his favor." R. Stern & E. Gressman, Supreme Court Practice 478 (5th ed. 1978); see Dayton Board of Education v. Brinkman, 433 U.S. 406, 419 (1977). Here, respondent's alternative argument for a "recklessness" standard, if accepted, mandates affirmance of the Court of Appeals' judgment below that he is entitled to a new trial. If the Court is unwilling to decide the issue itself, I believe that at a minimum it must remand for a decision on the issue, see Dandridge v. Williams, 397 U.S. 471, 475 -476, n. 6 (1970) (dictum), rather than simply leaving the propriety of respondent's conviction in a state of limbo.
I respectfully dissent. [468 U.S. 63, 85]