United States v. Payner

Mr. Chief Justice Burger,

concurring.

I join the Court’s opinion because Payner — whose guilt is not in doubt — cannot take advantage of the Government’s violation of the constitutional rights of Wolstencroft, for he is not a party to this case. The Court’s opinion makes clear the reason for that sound rule.

Orderly government under our system of separate powers calls for internal self-restraint and discipline in each Branch; this Court has no general supervisory authority over operations of the Executive Branch, as it has with respect to the federal courts. I agree fully with the Court that the exclusionary rule is inapplicable to a case of this kind, but the Court’s holding should not be read as condoning the conduct *738of the IRS “private investigators” disclosed by this record, or as approval of their evidence-gathering methods.

Mr. Justice Marshall,

with whom Mr. Justice Brennan and Mr. Justice Blackmun join, dissenting.

The Court today holds that a federal court is unable to exercise its supervisory powers to prevent the use of evidence in a criminal prosecution in that court, even though that evidence was obtained through intentional illegal and unconstitutional conduct by agents of the United States, because the defendant does not satisfy the standing requirement of the Fourth Amendment. That holding effectively turns the standing rules created by this Court for assertions of Fourth Amendment violations into a sword to be used by the Government to permit it deliberately to invade one person’s Fourth Amendment rights in order to obtain evidence against another person. Unlike the Court, I do not believe that the federal courts are unable to protect the integrity of the judicial system from such gross Government misconduct.

I

The facts as found by the District Court need to be more fully stated in order to establish the level of purposeful misconduct to which agents of the United States have sunk in this case. Operation Trade Winds was initiated by the Internal Revenue Service (IRS) in 1965 to gather information about the financial activities of American citizens in the Bahamas. The investigation was supervised by Special Agent Richard Jaffe in the Jacksonville, Fla., office. It was not until June 1972 that the investigation focused on the Castle Bank and Trust Company of the Bahamas. In late October 1972 Jaffe asked one of his informants, Norman Casper, to obtain the names and addresses of the individuals holding accounts with the Castle Bank. Casper set to work soon thereafter. He was already an acquaintance of Michael Wol-*739stencroft, vice president and trust officer of the Castle Bank. Casper knew that Wolstencroft frequently visited the United States carrying a briefcase with documents from the Castle Bank. Casper therefore introduced Wolstencroft to Sybol Kennedy, a private detective who worked for Casper. In early January 1973, Casper learned that Wolstencroft planned a business trip to the United States on January 15, 1973, and that he would have Castle Bank records with him on that trip. Plans for the “briefcase caper,” as Casper called it, began in earnest.

As found by the District Court, Casper discussed the details of the plan with Jaffe on several occasions during the week before Wolstencroft’s trip.1 Casper told Jaffe that he could get the needed documents from Wolstencroft, but that Jaffe would have to supply photographic services. On January 11, Casper specifically informed Jaffe that he planned to enter an apartment and take Wolstencroft’s briefcase. Jaffe then stated that he would have to clear the operation with his superior, Troy Register, Jr., Chief of the IRS Intelligence Division in Jacksonville. Clearance was obtained, and Jaffe told Casper to proceed with the plan.2 Casper called Jaffe the following day and asked if the IRS could refer him to a locksmith who could be “trusted.” Jaffe gave him such a referral.3

*740The plans were finalized by the time of Wolstencroft’s arrival on January 15. Wolstencroft went directly to Sybol Kennedy’s apartment. The couple eventually went to a restaurant for dinner.4 Using a key provided by Kennedy,5 Casper entered the apartment and stole Wolstencroft’s briefcase. Casper then rendezvoused with the IRS-recommended locksmith in a parking lot five blocks from the apartment; the locksmith made a key to fit the lock on the case. Casper took the briefcase and newly made key to the home of an IRS agent. Jaffe had selected that location for the photograph*741ing because it was only eight blocks from the parking lot where Casper met the locksmith and Jaffe knew there was a need to act with haste.6 The briefcase was opened in Jaffe’s presence. Jaffe, Casper, and an IRS photography expert then photographed over 400 documents.7 Casper had arranged for Kennedy and Wolstencroft to be watched on their date, and this lookout called Casper at the IRS agent’s home when the couple finished their dinner. After all the documents had been copied, Casper relocked the briefcase and returned it to Kennedy’s apartment. The entire “caper” lasted approximately one and one-half hours.

The illegalities of agents of the United States did not stop even at that point, however. During the following two weeks, Jaffe told Casper that the IRS needed additional information. Casper therefore sent Kennedy to visit Wol-stencroft in the Bahamas. While there, acting pursuant to Casper’s instructions, Kennedy stole a rolodex file from Wol-stencroft’s office. This file was turned over to Jaffe, who testified in the District Court that he had not cared how the rolodex file had been obtained.8

The IRS paid Casper $8,000 in cash for the services he rendered in obtaining the information about Castle Bank. Casper in turn paid approximately $1,000 of this money to Kennedy for her role in the “briefcase caper” and the theft of the rolodex file.

The “briefcase caper” revealed papers which showed a close relationship between the Castle Bank and a Florida bank. *742Subpoenas issued to that Florida bank resulted in the uncovering of the loan guarantee agreement which was the principal piece of evidence against respondent at trial. It is that loan agreement and the evidence discovered as a result of it that the District Court reluctantly9 suppressed under the Due Process Clause of the Fifth Amendment and under its supervisory powers.

The District Court made several key findings concerning the level of misconduct of agents of the United States in these activities. The District Court found that “the United States, through its agents, Richard Jaffe, and others, knowingly and willfully participated in the unlawful seizure of Michael Wol-stencroft’s briefcase, and encouraged its informant, Norman Casper, to arrange the theft of a rolodex from the offices of Castle Bank.” 434 F. Supp. 113, 120-121 (ND Ohio 1977) (footnotes omitted). The District Court concluded that “the United States was an active participant in the admittedly criminal conduct in which Casper engaged. . . .” Id., at 121. The District Court found that “the illegal conduct of the government officials involved in this case compels the conclusion that they knowingly and purposefully obtained the briefcase materials with bad faith hostility toward the strictures imposed on their activities by the Constitution.” Id., at 130 (footnote omitted) (emphasis in original). The District Court considered the actions of Jaffe and Casper “outrageous,” ibid., because they “plotted, schemed and ultimately acted in contravention of the United States Constitution and laws of Florida, knowing that their conduct was illegal.” Ibid.

The most disturbing finding by the District Court, however, related to the intentional manipulation of the standing requirements of the Fourth Amendment by agents of the United States, who are, of course, supposed to uphold and *743enforce the Constitution and laws of this country. The District Court found:

“It is evident that the Government and its agents, including Richard Jaffe, were, and are, well aware that under the standing requirement of the Fourth Amendment, evidence obtained from a party pursuant to an unconstitutional search is admissible against third parties who’s [sic] own privacy expectations are not subject to the search, even though the cause for the unconstitutional search was to obtain evidence incriminating those third parties. This Court finds that, in its desire to apprehend tax evaders, a desire the Court fully shares, the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel. Such governmental conduct compels the conclusion that Jaffe and Casper transacted the ‘briefcase caper’ with a purposeful, bad faith hostility toward the Fourth Amendment rights of Wolstencroft in order to obtain evidence against persons like Payner.” Id., at 131-133 (footnotes omitted).

The Court of Appeals did not disturb any of these findings. 590 F. 2d 206 (CA6 1979) (per curiam). Nor does the Court today purport to set them aside. See ante, at 730-731, n. 3. But cf. ante, at 733-734, n. 5. It is in the context of these findings — intentional illegal actions by Government agents taken in bad-faith hostility toward the constitutional rights of Wolstencroft for the purpose of obtaining evidence against persons such as the respondent through manipulation of the standing requirements of the Fourth Amendment — that the suppression issue must be considered.

*744II

This Court has on several occasions exercised its supervisory powers over the federal judicial system in order to suppress evidence that the Government obtained through misconduct. See, e. g., McNabb v. United States, 318 U. S. 332 (1943); Upshaw v. United States, 335 U. S. 410 (1948); Mesarosh v. United States, 352 U. S. 1 (1956); Mallory v. United States, 354 U. S. 449 (1957); Elkins v. United States, 364 U. S. 206 (1960). Cf. Rea v. United States, 350 U. S. 214 (1956) (supervisory powers used to enjoin federal agent from testifying in state criminal prosecution concerning illegal search and from turning over to the State evidence illegally seized). The rationale for such suppression of evidence is twofold: to deter illegal conduct by Government officials, and to protect the integrity of the federal courts. McNabb v. United States, supra, at 342, 345, 347; Mesatosh v. United States, supra, at 14; Elkins v. United States, supra, at 217, 222-223. Cf. Mapp v. Ohio, 367 U. S. 643, 659-660 (1961) (Fourth and Fourteenth Amendments); Brown v. Illinois, 422 U. S. 590, 599-600 (1975) (Fourth and Fourteenth Amendments); Dunaway v. New York, 442 U. S. 200, 218 (1979) (Fourth and Fourteenth Amendments). The Court has particularly stressed the need to use supervisory powers to prevent the federal courts from becoming accomplices to such misconduct. See, e. g., McNabb v. United States, supra, at 345 (“Plainly, a conviction resting on evidence secured through such a flagrant disregard of the procedure which Congress has commanded cannot be allowed to stand without making the courts themselves accomplices in willful disobedience of law”); Mesarosh v. United States, supra, at 14 (the Court should use its supervisory powers in federal criminal cases “to see that the waters of justice are not polluted”) ; Elkins v. United States, supra, at 223 (federal courts should not be “accomplices in the willful disobedience of a Constitution they are sworn to uphold”).

*745The need to use the Court’s supervisory powers to suppress evidence obtained through governmental misconduct was perhaps best expressed by Mr. Justice Brandéis in his famous dissenting opinion in Olmstead v. United States, 277 U. S. 438, 471-485 (1928):

“Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be im-perilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means — to declare that the Government may commit crimes in order to secure the conviction of a private criminal — would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face.” Id., at 485.

Mr. Justice Brandéis noted that “a court will not redress a wrong when he who invokes its aid has unclean hands,” id., at 483, and that in keeping with that principle the court should not lend its aid in the enforcement of the criminal law when the government itself was guilty of misconduct. “Then aid is denied despite the defendant’s wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination.” Id., at 484. See also id., at 469-471 (Holmes, J., dissenting); id., at 488 (Stone, J., dissenting); Lopez v. United States, 373 U. S. 427, 453, n. 3 (1963) (Brennan, J., dissenting).10

*746The reason for this emphasis on the need to protect the integrity of the federal courts through the use of supervisory powers can be derived from the factual contexts in which supervisory powers have been exercised. In large part when supervisory powers have been invoked the Court has been faced with intentional illegal conduct. It has not been the case that “[t]he criminal is to go free because the constable has blundered,” People v. Defore, 242 N. Y. 13, 21, 150 N. E. 585, 587 (1926). In these cases there has been no “blunder” by the Government agent at all; rather, the agent has intentionally violated the law for the explicit purpose of obtaining the evidence in question. Cf. Lopez v. United States, supra, at 440 (supervisory powers should be exercised only if there has been “manifestly improper conduct by federal officials”). If the federal court permits such evidence, the intended product of deliberately illegal Government action, to be used to obtain a conviction, it places its imprimatur upon such lawlessness and thereby taints its own integrity.

The present case falls within that category. The District Court found, and the record establishes, a deliberate decision by Government agents to violate the constitutional rights of Wolstencroft for the explicit purpose of obtaining evidence against persons such as Payner. The actions of the Government agents — stealing the briefcase, opening it, and photographing all the documents inside — were both patently in violation of the Fourth Amendment rights of Wolstencroft11 and plainly in violation of the criminal law.12 The Govern*747ment knew exactly what information it wanted, and it was that information which was stolen from Wolstencroft. Similarly, the Government knew that it wanted to prosecute persons such as Payner, and it made a conscious decision to forgo any opportunity to prosecute Wolstencroft in order to obtain illegally the evidence against Payner and others.13

Since the supervisory powers are exercised to protect the integrity of the court, rather than to vindicate the constitutional rights of the defendant, it is hard to see why the Court today bases its analysis entirely on Fourth Amendment standing rules. The point is that the federal judiciary should not be made accomplices to the crimes of Casper, Jaffe, and others. The only way the IRS can benefit from the evidence it chose to obtain illegally is if the evidence is admitted at trial against persons such as Payner; that was the very point of the criminal exercise in the first place. If the IRS is permitted to obtain a conviction in federal court based almost entirely on that illegally obtained evidence and its fruits, *748then the judiciary has given full effect to the deliberate wrongdoings of the Government. The federal court does indeed become the accomplice of the Government lawbreaker, an accessory after the fact, for without judicial use of the evidence the “caper” would have been for nought. Such a pollution of the federal courts should not be permitted.14

It is particularly disturbing that the Court today chooses to allow the IRS deliberately to manipulate the standing rules of the Fourth Amendment to achieve its ends. As previously noted, the District Court found that “the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel.” 434 F. Supp., at 132-133 (emphasis supplied). Whatever role those standing limitations may play, it is clear that they were never intended to be a sword to be used by the Government in its deliberate choice to sacrifice the constitutional rights of one person in order to prosecute another.

The Court’s decision to engraft the standing limitations of the Fourth Amendment onto the exercise of supervisory powers is puzzling not only because it runs contrary to the major purpose behind the exercise of the supervisory powers— to protect the integrity of the court — but also because it appears to render the supervisory powers superfluous. In order to establish that suppression of evidence under the supervisory powers would be proper, the Court would also require *749Payner to establish a violation of his Fourth or Fifth Amendment rights,15 in which case suppression would flow directly from the Constitution. This approach is totally unfaithful to our prior supervisory powers cases, which, contrary to the Court’s suggestion, are not constitutional cases in disguise.

I also do not understand the basis for the Court’s assertion that this is not a case in which the District Court was supervising the administration of justice “among the parties before the bar,” ante, at 735, n. 7, and therefore supervisory powers are inapplicable. Clearly the Government is before the bar. Equally clearly, the Government embarked on this deliberate pattern of lawless behavior for the express purpose of gaining evidence against persons such as Payner, so there can be *750no legitimate claim that the illegal actions are only tangentially related to the present prosecution. Instead, the Government misconduct is at the very heart of this case; without the evidence produced by the illegal conduct, there would have been no case at all, and Payner would never have been brought before the bar. This is simply not a case in which a federal court has attempted to exercise “general supervisory authority over operations of the Executive Branch,” ante, at 737 (Burgee, C. J., concurring). Rather, this is a case where the District Court refused to be made an accomplice to illegal conduct by the IRS by permitting the agency to use the proceeds of its crimes for the very purpose for which they were committed — to convict persons such as Payner.

Contrary to the Courtis characterization, this is also not a case in which there has been “indiscriminate” or “unbending” application of the exclusionary rule. The District Court noted that “exclusion on the basis of supervisory power is only done as a last resort,” 434 F. Supp., at 134, n. 74. That court concluded that suppression was proper only where there had been “purposefully illegal” conduct by the Government to obtain the evidence or where the Government’s conduct was “motivated by an intentional bad faith hostility to a constitutional right.” Id., at 134-135 (footnotes omitted). In this case, both those threshold requirements were met, and the District Court in addition concluded that absent suppression there was no deterrent to continued lawless conduct undertaken by the IRS to facilitate these types of prosecutions.16 This is not “a 'chancellor’s foot’ veto '[by the District *751Court] over law enforcement practices of which it did not approve,” United States v. Russell, 411 U. S. 423, 435 (1973); Hampton v. United States, 425 U. S. 484, 490 (1976) (plurality opinion). As my Brother Powell noted on a prior occasion: “The fact that there is sometimes no sharply defined standard against which to make these judgments '[of fundamental fairness] is not itself a sufficient reason to deny the federal judiciary’s power to make them when warranted by the circumstances. . . . Nor do I despair of our ability in an appropriate case to identify appropriate standards for police practices without relying on the ‘chancellor’s’ ‘fastidious squeamishness or private sentimentalism.’ ” Hampton v. United States, supra, at 495, n. 6 (concurring in judgment). That appropriate case has arrived, and the Court should prevent the Government from profiting by use in the federal courts of evidence deliberately obtained by illegal actions taken in bad-faith hostility to constitutional rights.

I would affirm the judgment of the Court of Appeals and suppress the fruits of the Government’s illegal action under the Court’s supervisory powers.17 Accordingly, I dissent.

The Court rather blandly states that “Agent Jaffe approved the basic outline of the plan,” ante, at 730. Such a characterization is misleading in light of the findings of the District Court. As is noted in the text infra, Jaffe knew explicit details of the operation in advance and helped to make the arrangements by recommending a locksmith who could be “trusted,” by providing a safe and convenient location for the photographing of the documents, and by providing a photographer from the IES.

Jaffe testified in the District Court that “[w]hatever I knew, he [Eegister] knew.” See 434 F. Supp. 113, 121, n. 40; Tr. 513.

It was clear why Casper needed a locksmith who could be “trusted.” Casper testified as follows in the District Court:

“Q. Isn’t it a fact, Mr. Casper, you knew you were committing an illegal *740act, and you wanted somebody who could be trusted to keep his mouth shut about it?
“A. There is that possibility, yes.
“Q. Isn’t that the fact?
“A. Yes.” 434 F. Supp., at 119, n. 20; Tr. 452-453.

It is interesting to note that even the locksmith who could be “trusted” refused to enter Kennedy’s apartment with Casper. Id., at 451.

The Government contends that when Agent Jaffe made the referral he did not know what use Casper intended to make of such a locksmith. Brief for United States 6, n. 4. The District Court found, however, that Jaffe already knew at the time of the referral that Casper intended to enter Kennedy’s apartment and to take and open Wolstencroft’s briefcase. There were, then, only two logical alternatives why Casper would want such a locksmith: to make a key to enter the briefcase, or to make a key to enter the apartment. Either way, Jaffe must have known that Casper’s conduct was improper, and yet Jaffe made the referral anyway.

It was not established at trial what occurred in Kennedy’s apartment prior to the couple’s departure for dinner. Since it was peculiarly within the power of the United States to produce Kennedy as a witness and since the Government did not explain her absence from the trial, the District Court inferred that Kennedy’s testimony “would be unfavorable to the Government by further delineating the improprieties” of the “briefcase caper.” 434 F. Supp., at 119, n. 22.

The District Court, after hearing the testimony of both Casper and Jaffe, disbelieved Jaffe’s assertion that Casper had informed him beforehand that Kennedy had given Casper a key with which to enter the apartment. See id., at 119, n. 15, 121, n. 40. See also n. 3, supra.

434 F. Supp., at 120, n. 25; Tr. 494-496.

As noted previously, Casper had told Jaffe to provide the photographic equipment. Jaffe testified that one of the cameras used was a “micro-filmer” which was “much quicker” than a regular camera. This camera had been brought by the IRS because “Casper had to get the documents and the briefcase back to the apartment prior to the return of the owner.” Id., at 493-495. This testimony again shows that Jaffe was fully aware in advance that the activities of the evening were improper.

See 434 F. Supp., at 120, and n. 34; Tr. 501.

See 434 F. Supp., at 124, 129, 134, n. 74.

The Court’s opinion inexplicably ignores this basic thrust of our prior supervisory powers cases, and instead implies that the only value served *746by suppression is deterrence of future misconduct. See ante, at 736. Deterrence is one purpose behind the suppression of evidence in such situations, but it is by no means the only one.

The Government conceded below that Wolstencroft’s Fourth Amendment rights had been violated. 434 F. Supp., at 126. See Tr. 502. See also Brief for United States in No. 78-5278 (CA6), p. 20. Cf. Tr. of Oral Arg. 14; Brief for United States 39. The Court agrees that the conduct was unconstitutional. Ante, at 733.

The Court characterizes the actions of Jaffe and Casper in the brief*747case incident as “possibly criminal behavior,” ibid. The District Court concluded that the actions of the IRS appeared to constitute a prima facie case of criminal larceny under Florida law, and possibly violated other criminal laws of that State as well. 434 F. Sunn., at 130. n 66. Casper admitted in the District Court that he knew he was committing an illegal act. Tr. 452-453. The stealing of the rolodex file from Wolstencroft’s office was also both unconstitutional and criminal. That theft, however, produced no additional evidence against Payner. See 434 F. Supp., at 123, n. 56.

See id., at 129, n. 65, 131-133, and n. 69. See also Tr. 505.

Wolstencroft in fact was indicted for aiding and abetting Payner. Brief for United States 3, n. 2. However, Wolstencroft is a Bahamian resident, and did not return to the United States to answer the indictment. Ibid. The mere fact that the Government went through the steps of indicting Wolstencroft does not in any way undermine the District Court’s finding, based on substantial evidence in the record, that Wolstencroft was never the target of the IRS investigation. In light of the Government’s concession that Wolstencroft’s Fourth Amendment rights were violated, it is hard to see how the banker could be successfully prosecuted on the aiding and abetting charge.

It is simply not a sufficient cure for the Court to denounce the actions of the IRS, ante, at 734, while at the same time rewarding the Government for this conduct by permitting the IRS to use the evidence in the very maimer which was the purpose of the illegal and unconstitutional activities.

The Court appears to suggest that there can be no suppression of evidence based on a violation of the Due Process Clause in this case because it was not Payner who was the immediate victim of the Government’s outrageous conduct. Ante, at 737, n. 9. Although the District Court concluded that the evidence should be suppressed under the Due Process Clause as well as under its supervisory powers, the Court of Appeals specifically did not reach that issue, 590 F. 2d 206 (CA6 1979) (per curiam), and the Government purposely did not raise the issue in this Court. See Pet. for Cert. 21, n. 13. The Court therefore should not reach out to address the issue in a footnote.

In addition, the only authority cited by the Court for its suggestion is Hampton v. United States, 425 U. S. 484, 490 (1976) (plurality opinion). Hampton was only a plurality opinion, and the issue for which the Court purports to cite it was not raised by the facts of that case. Similarly, in the Court of Appeals below the United States was able to cite only Sims v. Georgia, 389 U. S. 404, 407 (1967), a case plainly not on point, and the sentence from the Hampton plurality opinion quoted by the Court, ante, at 737, n. 9, for the proposition that Payner lacked standing to raise a due process argument. See Brief for United States in No. 78-5278 (CA6), pp. 21-22; Reply Brief for United States in No. 78-5278, p. 6. The issue whether the standing limitations this Court has imposed for challenging Fourth Amendment violations also apply for violations of the Due Process Clause based on outrageous Government conduct has not yet been settled by this Court. Cf. 434 F. Supp., at 129, n. 65, and authorities discussed therein. The due process issue should be left for consideration in the first instance by the Court of Appeals on remand.

There is no suggestion by the Government that any action has been taken against Casper, Jaffe, or others for the conduct exposed in this case. The Court admits that the corrective measures taken by the IRS “appear on their face to be less positive than one might expect from an agency charged with upholding the law,” ante, at 733, n. 5. The District Court specifically found that the Government agents knew they were violating the Constitution at the time, 434 F. Supp., at 135, n. 79, and that continued manipulation of the standing limitations of the Fourth Amendment *751by the IRS could be deterred only by suppression of the evidence, id.¡ at 133.

The Government argues that Rule 402 of the Federal Rules of Evidence stripped the federal judiciary of its supervisory powers to exclude evidence obtained through gross misconduct by agents of the United States. In the Court of Appeals this argument was relegated to one footnote, see Brief for United States in No. 78-5278 (CA6), p. 41, n. 27. The Court does not address the issue. I would merely note that the Government’s discussion of the legislative history behind Rule 402 fails to convince me that it was Congress’, intent to attempt such a radical curtailment of the long-established supervisory powers of the federal judiciary. See United States v. Jacobs, 547 F. 2d 772, 777 (CA2 1976), cert. dism’d as improvidently granted, 436 U. S. 31 (1978).