text:
See 64 S.Ct. 27. [322 U.S. 607, 608] Messrs. Ellis F. Davis, of Kissimmee, Fla., and George Palmer Garrett, of Orlando, Fla., for petitioners.
This is a suit brought by employees of Holly Hill Fruit Products, Inc. for wage payments under the Fair Labor Standards Act, 52 Stat. 1060, 29 U. S.C. 201 et seq., 29 U.S.C.A. 201 et seq. A judgment for the employees, the petitioners here, was reversed by the Circuit Court of Appeals, which held that Holly Hill's employees were by virtue of 13(a)(10) of the Act, 29 U.S.C.A. 210(a)(10), exempted from its scope, in that they were 'within the area of production (as defined by the Administrator), engaged in ... canning of agricultural ... commodities for market ....' The court below reached this con- [322 U.S. 607, 609] clusion by holding that a portion of the definition of 'area of production' made by the Administrator of the Wage and Hour Division was invalid and that the remaining portion afforded exemption. 136 F.2d 323. We brought the case here, 320 U.S. 725 , 64 S.Ct. 59, to settle a much litigated question of importance in the administration of the Fair Labor Standards Act.
Holly Hill, a citrus fruit cannery employing some two hundred workers, is located in Davenport, Florida, a town with a population of about 650 people. During the two seasons in controversy-November 14, 1938, to May 26, 1939, and November 16, 1939 to March 30, 1940-the Administrator promulgated three regulations based on the scope he gave to his authority under 13(a)(10) to define 'area of production'. The validity of aspects of these regulations is the crucial issue.
By regulation of October 20, 1938, the Administrator defined 'area of production' as used in 13(a)(10) to include an individual engaged in canning 'if the agricultural or horticultural commodities are obtained by the establishment where he is employed from farms in the immediate locality and the number of employees in such establishment does not exceed seven'. 29 Code Fed. Reg. (Supp.1938) 536.2(b). Effective April 20, 1939, an alternative definition, applicable to perishable or seasonal fresh fruits and vegetables, brought workers into the 'area of production' if employed 'in an establishment which is located in the open country or in a rural community and which obtains all of its products from farms in its immediate locality.' It was provided that "open country' or 'rural community' shall not include any city or town of 2,500 or greater population according to the 15th United States Census, 1930, and 'immediate locality' shall not include any distance of more than ten miles.' 29 Code Fed. Reg. (Supp.1939) 536.2(e), pp. 2239-40. Finally, this alternative definition, no longer limited to [322 U.S. 607, 610] fruits and vegetables, was in substance incorporated into the regulations effective June 17, 1939, but in addition it was provided that an individual might also be within the 'area of production' 'if he performs those (canning) operations on materials all of which come from farms in the general vicinity of the establishment where he is employed and the number of employees engaged in those operations in that establishment does not exceed seven'. 29 Code Fed. Reg. (Supp.1939) 536.2(a) (d), p. 2240.
Before coming to the main question, that of the validity of adding a limitation on the allowable number of employees in one canning establishment within the exempted geographic bounds, we shall dispose of the applicability of the Administrator's other exempting definitions to Holly Hill's employees.
The textual meaning of 'area of production' is thus reinforced by its context: 'area' calls for delimitation of [322 U.S. 607, 614] territory in relation to the complicated economic factors that operate between agricultural labor conditions and the labor market of enterprises concerned with agricultural commodities and more or less near their production. The phrase is the most apt designation of a zone within which economic influences may be deemed to operate and outside of which they lose their force. In view, however, of the variety of agricultural conditions and industries throughout the country the bounds of these areas could not be defined by Congress itself. Neither was it deemed wise to leave such economic determination to the contingencies and inevitable diversities of litigation. And so Congress left the boundary-making to the experienced and informed judgment of the Administrator. Thereby Congress gave the Administrator appropriate discretion to assess all the factors relevant to the subject matter, that is the fixing of minimum wages and maximum hours.
From such light as Congress gave us beyond its words, it would appear that in giving exemption to an 'area of production', without differentiating as between establishments within such area, Congress might well have considered that a large plant within an area should not be given an advantage over small plants in competing for labor within the same locality, while at the same time it [322 U.S. 607, 616] gave the Administrator ample power, in defining the area, to take due account of the appropriate economic factors in drawing the geographic lines. In any event, Congress did not leave it to the Administrator to decide whether within geographic bounds defined by him the Act further permits discrimination between establishment and establishment based upon the number of employees. The determination of the extent of authority given to a delegated agency by Congress is not left for the decision of him in whom authority is vested.
The wider a delegation is made by Congress to an administrative agency the more incomplete is a statute and the ampler the scope for filling in, as it is called, its details. But when Congress wants to give wide discretion it uses broad language. Thus, in the Interstate Commerce Act, Congress prohibited a lower rate for a longer than a shorter haul, but it gave an authority to the Interstate Commerce Commission, undefined except as the general purposes of that Act implied the basis for affording exemption, to grant relief from this prohibition. Intermountain Rate Cases ( United States v. Atchison, T. & S.F.R. Co.), 234 U.S. 476 , 34 S.Ct. 986. Again in the National Labor Relations Act, Congress gave the Board authority to take such action 'as will effectuate the policies of this Act.' 10(c), 49 Stat. 449, 454, 29 U.S.C. 160(c), 29 U.S.C.A. 160(c). The 'policies' of the Act were so broadly defined by Congress that the determination of 'the relation of remedy to policy is peculiarly a matter for administrative competence'. Phelps Dodge Corp. v. National Labor Relations Board, 313 U.S. 177, 194 , 61 S.Ct. 845, 852. In the Fair Labor Standards Act, Congress legislated very differently in relation to the problem before us. To be sure the Fair Labor Standards Act like the National Labor Relations Act was based on findings and a declaration of broad policy. But Congress did not prescribe or proscribe generally and then give broad discretion for administrative relief as in the Interstate Commerce Act or for remedies as in the [322 U.S. 607, 617] National Labor Relations Act. Congress did otherwise. It dealt with exemptions in detail and with particularity, enumerating not less than eleven exempted classes based on different industries, on different occupations within the same industry, (the classification in some instances to be defined by the Administrator, in some made by Congress itself, in others subject to definition by other legislation), on size and on areas. In short the Administrator was not left at large. A new national policy was here formulated with exceptions, catalogued with particularity and not left within the broad dispensing power of the Administrator. Exemptions made in such detail preclude their enlargement by implication.
We should of course be faithful to the meaning of a statute. But after all Congress expresses its meaning by words. If legislative policy is couched in vague language, easily susceptible of one meaning as well as another in the common speech of men, we should not stifle a policy by a pedantic or grudging process of construction. To let general words draw nourishment from their purpose is one thing. To draw on some unexpressed spirit outside the bounds of the normal meaning of words is quite another. For we are here not dealing with the broad terms of the Constitution 'as a continuing instrument of government' but with part of a legislative code 'subject to continuous revision with the changing course of events'. United States v. Classic, 313 U.S. 299, 316 , 61 S.Ct. 1031, 1038.
Legislation introducing a new system is at best empirical, and not infrequently administration reveals gaps or inadequacies of one sort or another that may call for amendatory legislation. But it is no warrant for extending a statute that experience may disclose that it should have been made more comprehensive. 'The natural meaning of words cannot be displaced by reference to difficulties in administration.' Commonwealth v. Grunseit ( 1943) 67 C.L.R. 58, 80. For the ultimate question [322 U.S. 607, 618] is what has Congress commanded, when it has given no clue to its intentions except familiar English words and no hint by the draftsmen of the words that they meant to use them in any but an ordinary sense. The idea which is now sought to be read into the grant by Congress to the Administrator to define 'the area of production' beyond the plain geographic implications of that phrase is not so complicated nor is English speech so poor that words were not easily available to express the idea or at least to suggest it. After all, legislation when not expressed in technical terms is addressed to the common run of men and is therefore to be understood according to the sense of the thing, as the ordinary man has a right to rely on ordinary words addressed to him.
The details with which the exemptions in this Act have been made preclude their enlargement by implication. While the judicial function in construing legislation is not a mechanical process from which judgment is excluded, it is nevertheless very different from the legislative function. Construction is not legislation and must avoid 'that retrospective expansion of meaning which properly deserves the stigma of judicial legislation.' Kirschbaum Co. v. Walling, 316 U.S. 517, 522 , 62 S.Ct. 1116, 1119. To blur the distinctive functions of the legislative and judicial processes is not conducive to responsible legislation.
We agree therefore with the Circuit Court of Appeals in holding invalid the limitations as to the number of employees within a defined area. But we cannot follow that Court in deleting this part of the administrative regulation and, by applying what remains of the definition, exempting Holly Hill's employees from the requirements of the Act. Since the provision as to the number of employees was not authorized, the entire definition of which that limitation was a part must fall. We can hardly assume that the Administrator would have defined 'area of production' merely by deleting the employee pro- [322 U.S. 607, 619] vision, had he known of its invalidity. It would be the sheerest guesswork to believe that elimination of an important factor in the Administrator's equation would have left his equation unaffected even if he did not here insist upon its importance. It is not for us to write a definition. That is the Administrator's duty.
Concluding, then, that when Congress granted exemptions for workers within the 'area of production (as defined by the Administrator)' it restricted the Administrator to the drawing of geographic lines, even though he may take into account all relevant economic factors in the choice of areas open to him, the regulations which made discriminations within the area defined by applying the exemption only to plants with less than seven employees are ultra vires. But that leaves the difficult problem of the proper disposition of the case. It is our view that the case should be remanded to the district court with instructions to hold it until the Administrator, by making a valid determination of the area with all deliberate speed, acts within the authority given him by Congress.
Such a disposition is most consonant with justice to all interests in retracing the erroneous course that has been taken. Neither law nor logic dictates an 'either-or' conclusion-that is, a conclusion that the employment in these industries is entirely exempt because the Administrator misconceived the bounds of his regulatory powers although plainly enough he meant to exercise them so as not to withdraw all these employments from the requirements of the Act, or that employment in these industries is subject to the Act because no exception excludes it. The two opposing alternatives do violence to the law as Congress wrote it. To hold that all individuals 'engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market, or in making cheese or butter or other dairy [322 U.S. 607, 620] products' are exempt from the operation of the Act is obviously to fly in the face of Congressional purpose. The Act exempts some but not all of the employees engaged in these industries, and it is not for us now to say that all are exempt. So to hold would postpone the operation of the Act in the enumerated instances for at least six years beyond the date fixed by Congress. Equally offending to the purposes of Congress and therefore to fairness in this situation is the suggestion that if the exemption falls all employees engaged in the designated industries are covered by the Act.
The accommodation that we are making assumes, what we must assume, that the Administrator will retrospectively act as conscientiously within the bounds of the power given him by Congress as he would have done initially had he limited himself to his authority. To be sure this will be a retrospective judgment, and law should avoid retroactivity as much as possible. But other possible dispositions likewise involve retroactivity, with the added mischief of producing a result contrary to the statutory design.
'... in construing a statute setting up an administrative agency and providing for judicial review of its action, court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain the end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim.' 307 U.S. at page 191, 59 S.Ct. at page 799.
If it be said that in the Morgan case the Court was dealing with a fund in court-irrelevant though that be to the governing principles of that decision-no such constriction can be made of the import of our decision in General American Tank Car Corp. v. El Dorado Terminal Co., 308 U.S. 422 , 60 S.Ct. 325, 331. That like this was an action at law and not a suit in equity involving a res. The respondent was seeking to recover a sum admittedly due under a car-leasing agreement with petitioner. The Interstate Commerce Commission urged that since the Commission had not, as the law required, passed upon the validity of the practice involved in the agreement, the district court was without jurisdiction. And so, technically speaking, the district court was. But this Court remanded the case to the district court with instructions to hold the cause 'pending the conclusion of an appropriate administra- [322 U.S. 607, 622] tive proceeding.' The petition for rehearing claimed that our decision involved retroactivity. 309 U.S. 694 , 60 S.Ct. 465. So it did. But as against retroactivity we balanced the considerations that made retroactivity seem the lesser evil.
In short, the judicial process is not without the resources of flexibility in shaping its remedies, though courts from time to time fail to avail themselves of them. The interplay between law and equity in the evolution of more just results than the hardened common law afforded, has properly been drawn upon in working out accommodating relationships between the judiciary and administrative agencies. And certainly in specific cases, such as those already referred to and in this, it is consonant with judicial administration and fairness not to be balked by the undesirability of retroactive action any more than courts have found it difficult to sanction legislative ratification of acts originally unlawful, United States v. Heinszen & Co., 206 U.S. 370 , 27 S.Ct. 742, 11 Ann.Cas. 688; Chuoco Tiaco v. Forbes, 228 U.S. 549 , 33 S.Ct. 585; Graham and Foster v. Goodcell, 282 U.S. 409 , 51 S.Ct. 186; Kiyoshi Hirabayashi v. United States, 320 U.S. 81, 91 , 63 S.Ct. 1375, 1381, or retroactively to give prior legislation new scope. Paramino Lumber Co. v. Marshall, 309 U.S. 370 , 60 S. Ct. 600. And in habeas corpus proceedings, even though a petitioner was unlawfully in custody, this Court has allowed continued retention of custody until a valid order could be made. Mahler v. Eby, 264 U.S. 32 , 44 S.Ct. 283; Tod v. Waldman, 266 U.S. 113 , 45 S.Ct. 85.
Finally, there is no difficulty upon such a remand in requiring the Administrator to promulgate his definition. This Court has on several occasions required the Interstate Commerce Commission to take jurisdiction when it declined to do so or to discharge a duty laid upon the Commission by statute. Interstate Commerce Commission v. United States of America ex rel. Humboldt Steamship Co., 224 U.S. 474 , 32 S.Ct. 556; Louisville Cement Co. v. Interstate Commerce Commission, 246 U.S. 638 , 38 S.Ct. 408. See also Kansas City So. R. Co. v. Interstate Commerce Commission, 252 U.S. 178 , 40 S.Ct. 187. The district court [322 U.S. 607, 623] would not be telling the Administrator how to exercise his discretion but would merely require him to exercise it. It is a remedy against inaction.
Holly Hill also contended that if it is not entirely exempt from paying the overtime rates here awarded, it is entitled to the advantage of the partial seasonal exemptions afforded by 7(b)(3) and 7(c). The district court ruled adversely to Holly Hill on these claims, but the Circuit Court of Appeals did not reach them. It will be time enough to reach them if they survive the disposition now made of this case.
I agree with the opinion of this court and with the opinion of the Circuit Court of Appeals that the Administrator was without power (if 'area of production' is to have any sensible meaning) to exclude from the area and from the operation of the exemption workers in a processing plant clearly within the area on the ground that a certain number of employes worked in the plant. If Congress, when it said that the area of production should be defined by the Administrator, meant that that official should have a roving commission to create exemptions from the Act, the entire provision must fall as an unconstitutional attempt to delegate legislative power. We should never, however, construe an Act in a sense which would render it unconstitutional if a different and permissible construction will save it.
The legislative history makes it clear enough that Congress wished to exempt plants processing agricultural commodities in the locality of the farms which produced the commodities. Realizing that the ascertainment of the facts in particular cases would be essential to definition or [322 U.S. 607, 624] delimitation of the area served, Congress, by the phrase 'as defined by the Administrator', meant to permit him to draw lines in delimitation of areas appropriately to correspond to the facts. I construe the word 'define', in this context, to mean 'ascertain the facts and announce the result of such ascertainment.' The opinions of the court below elaborate this view.
I think the Administrator's order may well be allowed to stand with the illegal and unauthorized feature of it deleted. This is what the Circuit Court of Appeals decided and I believe it was right. Other features of the order were not, and are not, attacked and if, for the future, the Administrator desires, in other aspects, to amend his order, there is nothing to prevent. This would lead to affirmance of the judgment of the Circuit Court of Appeals and, if I could make my vote effective to that end, I should vote for affirmance. The other members of the court, however, are for reversal, but are divided on the question whether the judgment of the District Court should be affirmed or the case held in that court pending amendment of the order by the Administrator. Entertaining the views which I do, I cannot vote to affirm the judgment of the District Court, but that will be the effect of my action if I vote simply to reverse the judgment of the Circuit Court of Appeals. While I think none of the authorities cited in the opinion of Mr. Justice FRANKFURTER justify the procedure there outlined, I am constrained to vote in accordance with his opinion.
I am clear that, if the Administrator is to be permitted to amend his order, or to enter a new order effective from the date of the one under attack, he may not resort to gerrymandering or to any other device to accomplish by indirection what the decision holds he cannot do directly. I personally believe the scope of his discretion is more limited than some of my colleagues think and I do not wish my concurrence in the remand of the case to the [322 U.S. 607, 625] District Court, to be there held pending the promulgation of an amended order, or a new order, to be taken as approving in advance the views expressed as to the extent of the Administrator's discretion.
Mr. Justice RUTLEDGE, with whom Mr. Justice BLACK and Mr. Justice MURPHY concur, dissenting.
In my opinion the Administrator has defined 'area of production' in a valid manner, and therefore the employee petitioners should prevail. But if, as the majority hold, his definition is not valid, then the exemption is not operative, and for that reason the petitioners likewise should prevail. I dissent, therefore, from the Court's conclusion that the definition is void. I dissent equally from the wholly novel disposition it makes of the cause on that hypothesis, in remanding it to await the Administrator's retroactive redetermination of the parties' rights.
The basic issue, as the case was presented, is whether the Administrator can include in the definition not only spacial limits but also a limit upon the number of employees in exempted establishments. The Administrator included this factor in his first definition;1 later reexamined it in extensive hearings;2 concluded on the record thus made that no purely geographical definition could be conformed to the major legislative policies announced in the statute;3 has retained it in each of several later [322 U.S. 607, 626] definitions, varying in other details, framed after extensive hearings;4 and now earnestly insists it, or an equivalent limitation on size of the plant, must be included, unless any definition he may make is to work havoc with some major policy of the Act, either by exempting large numbers of industrial employees5 or by creating disturbances of competitive situations, both for farmers and for canners and packers,6 which the statute expressly sought to avoid.
The Administrator's task is highly complex. It involves defining exemptions for employees throughout the nation engaged in 'handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market, or in making cheese or butter or other dairy products.' Section 13(a)(10), 29 U.S.C.A. 213(a)(10). All these operations follow immediately upon harvest and removal from the field or milking. All can be done on the farm and frequently are done there, but may be done elsewhere, often in factories. All consist in the first stages of preparation for market. [322 U.S. 607, 627] But whether the specified operations will be done on the farm, as part of the farm work or away from it, and in either small neighborhood establishments or in larger industrial plants, will depend upon a variety of factors as great as that which comprehends the whole vast process of starting the nation's crops, over 300,7 on their respective marketing courses. The initial steps in marketing such widely different products as cotton and apples; tobacco and milk; potatoes and citrus fruits; legume crops, wheat, corn and other grains, on the one hand, and tomatoes, strawberries, truck garden products, etc., on the other, are within the delegation.
The mere enumeration of these instances indicates some of the variables involved. Others add to the difficulty. Highly perishable crops, as fruits and vegetables, require immediate action in these stages of handling. Cotton, grains, root crops, etc., less perishable, may wait longer on the farm, some for months, before these processes become necessary. Some crops are highly concentrated for production in a few regions, such as citrus fruits in Florida, Southern Texas, and Southern California, but are marketed on a nation-wide scale. Others have regional areas of production, like cotton in the South, celery in Michigan, tobacco in the border states and a few northern regions, yet depend on the national market. Still others have regions of greater or less concentration, but are grown all over the nation, like wheat and other grains, apples, potatoes, etc.
Respondent regards the 'area of production' as the whole region where a commodity is grown, and therefore says the Administrator has no more to do than locate the existing limits of these areas. By this criterion the South, perhaps including California, would be the unalterable 'area of production' for cotton, the whole nation for eggs, wheat, corn, etc. This conception would nullify the delegation, making of the Administrator merely a surveyor in the wrong place. Congress clearly was not making him only a finder of fact, namely, of the geographical limits surrounding regions where 300 different commodi- [322 U.S. 607, 629] ties are produced. Such a view would exempt all employees engaged in the operations specified in Section 13(a)(10).
The same objections forbid regarding the 'area of production' as the region from which the particular plant purchases its raw material. The only substantial difference would be to make the Administrator's fact finding task a more impossible one. A definition would be required for every plant engaging in any of the specified operations for each of the more than 300 agricultural and horticultural commodities produced annually in the United States. Congress hardly could have intended to load upon the Administrator a task of these infinite proportions. Nor did it intend the same time intend to overwhelm him or to make that exemption automatic. Congress intended the Administrator to define the area of production. It did not at the same time intend to overthelm him with making myriads of particular and highly variable definitions for each operating unit, or to make him merely a runner of courses and distances, whether large or small. It rather intended him to make practical, workable and therefore generic and stable definitions.
It follows necessarily that the Administrator's power is discretionary and the important questions are to what extent and in what manner may his discretion work. Neither subdivision (a)(10) nor Section 13 as a whole supplies these answers. The section itself does not supply all the standards necessary for definition of the term. At most it affords direction to exempt some but not other employees engaged in the specified activities and that those exempted must be within the 'area of production.' This necessarily includes some region where the commodity is produced. But since that region is an unknown quantity and so also is the question what employees within it are to be exempted, solutions must be found either in other [322 U.S. 607, 630] provisions of the statute or in the legislative history, unless the delegation is to fall for want of standards.
The broad line between farming and industry runs throughout the Act. 10 It is the statute's basic line of [322 U.S. 607, 631] policy between coverage and noncoverage. The line not only is pertinent to each of the statute's provisions but, where the contrary is not clearly and unambiguously stated, it is controlling. There can be no assumption that Congress intended employees in one group to be transferred to or treated as being in the other where no such clear mandate can be found.
In determining what Congress intended by the delegation, it is crucial to keep in mind that, whatever decision the Administrator may make and by whatever criteria, the effect of his action must be to put some employees on one side of this line and others on the opposite side. That consequence he cannot escape. And, because he cannot avoid it, the line is pertinent and material to his choice, as it is to all others he must make in performing his duties. It is the statute's lodestar. The distinction between farming and industry is the essence of his determination. An 'area of production' determined without reference to this distinction would contradict, not enforce, the statute's basic policy. And this appears, not solely from the policy itself and the effects of failure to take it into account, but from a consideration of other determinations the Act confides to the Administrator and of the manner in which it requires him to make them.
Thus, in issuing minimum wage orders and industry classifications, he and the industry committees must have 'due regard to economic and competitive conditions,' and act so as not to 'substantially curtail employment' or 'give a competitive advantage to any group.' And there is a specific prohibition against fixing wages or classifications 'solely on a regional basis.' Rather the governing criteria are to be competitive conditions, wages for com- [322 U.S. 607, 632] parable work fixed by collective bargaining or by voluntary minimum wage plans. Section 8(b), (c), (d). The statute's primary design was to bring industrial workers under its protections and to eliminate as rapidly as possible the substandard conditions of such labor. But this was to be done with an eye also to two other matters: one, that by too rapid advance employment be not curtailed; and, two, that competitive conditions in the affected industries be not unduly disturbed or competitive advantages created. Cf. Section 2.
These purposes were inescapably pertinent to the problems of exemption arising under Section 13(a)(10). They were likewise pertinent to other exemptions, cf. Section 7(c) and compare Section 7(b), and to still other delegations the statute confided to the Administrator. That Congress did not burden the books with 'an itemized catalogue'11 of standards in each instance of delegation, gives no basis for believing that what permeated all else found these parts insulated. The Administrator clearly had power, and more, the duty, to take account of these factors.
If so, he could not escape the question of size. And indeed the Court does not deny this. Size certainly is not irrelevant to distinguish within any group which may do essentially the same work in two different ways, one the farming way, the other the industrial one. If is not irrelevant to economic dislocations or to curtailments of employment. And it is relevant to these things as much within as without an area of production. 12 [322 U.S. 607, 633] The legislative history discloses one object of the exemption as originally proposed was to protect small farmers, who are unable to perform these operations at the farm and therefore are dependent upon whatever nearby establishments may exist, whether large or small. Various members of the Senate and of the House sponsored amendments for this purpose. 13 As the bills went to conference each contained flat exemptions, substantially covering the activities now specified in Section 13(a)(10). But the debates in both houses show that even the sponsors of the various amendments differed or were doubtful concerning whether the amendments would give exemption to large plants. 14 There was general agreement that [322 U.S. 607, 634] small ones should be relieved from coverage. 15 Senator Reynolds went further and proposed several amendments to relieve all small plants from the Act's provisions, not merely those engaged in the limited operations specified in the bills or Section 13(a) (10). These were defeated. 16 And there was vigorous demand, from the sponsor of the bill in the Senate and others,17 for restricting the scope of the amending exemptions to small plants. These differences were not settled on the floor of either house. But when the bills came to conference, they were resolved by changing the flat exemptions into discretionary ones to be defined by the Administrator.
Since the delegation feature did not appear until the conference report and there is little in that report or in [322 U.S. 607, 635] the debates upon it to add light, the previous discussions are wholly inconclusive, except in one respect. This was to show that there was great variety and complexity of opinion, and that this revolved around the question of size. That question continued unresolved up to conference and was resolved there, not by decision either way, but by reference to the Administrator. It must be taken therefore that the purpose was to give him discretion to make the necessary choices between the conflicting viewpoints as the facts of particular situations would give occasion for doing. And, it would seem, the preponderance of sentiment in favor of exempting small plants, but not large ones, except in occasional instances where this would be necessary to protect the small farmer, well could be taken as his guiding light. The legislative history, therefore, in so far as it sheds light at all, clearly is not inconsistent with what the Administrator has done, but on the contrary supports it.
In making his economic synthesis, however, the Administrator must state his results only in surveyor's terms. Congress, when it granted the exemption, 'restricted the Administrator to the drawing of geographic [322 U.S. 607, 636] lines, even though he may take into account all relevant economic factors . ...' The 'zone within which economic influences may be deemed to operate and outside of which they lose their force' cannot be defined directly and purposively to draw the line between the zone of farming and the zone of industry. This must be done only indirectly, in an awkward, roundabout way.
So much of authority and power to defeat the statute's intended operation cannot be given to mere verbalism, more especially to one word, torn in context, function and purpose from the remainder of the Act. 'Area,' it is true, means area. But 'area of production' means more. 'The notion that because the words of a statute are plain, its meaning is also plain, is merely pernicious oversimplification. It is a wooden English doctrine of rather recent vintage ... to which lip service has on occasion been given here, but which since the days of Marshall this Court has rejected, especially in practice. ... A statute, like other living organisms, derives significance and sustenance from its environment, from which it cannot be severed without being mutilated.' 19 And so does a section in a statute. 'Area of production' as used in Section 13(a)(10) means an exemption, limited to persons performing the specified operations within a producing region, but selected from all so situated by an exercise of the Administrator's judgment in accordance with the statute's prime objects and chief limitations, among which necessarily is the size of the plant. If that is so, I see no good reason for forbidding the Administrator to say so.
It follows the Administrator has not improperly exercised his function, the definitions are valid, and respondent's employees were not exempt from the statute's provisions. [322 U.S. 607, 638] II.
But if the definitions were invalid, as the Court holds, I could not agree to the extremely novel disposition it makes of the case. We are dealing with an exemption, not with the statute's primary coverage. Concededly the respondent employer was liable to petitioners for the minimum wages, overtime pay and statutory penalties under Section 16(b), 29 U.S.C.A. 216(b), if they were not exempt under Section 13(a)(10) or some other exemption. Ordinarily exemptions are not favored. Coverage, not exemption, is preferred. If the exemption is dubious, it is not given effect. If ambiguous, it is resolved strictly in favor of the statute's application. Spokane & I.E.R. Co. v. United States, 241 U.S. 344 , 36 S.Ct. 668; Piedmont & N.R. Co. v. Interstate Commerce Commission, 286 U.S. 299, 311 , 312 S., 52 S.Ct. 541, 545; McDonald v. Thompson, 305 U.S. 263 , 59 S.Ct. 176. In this case, if the exemption does not apply, the petitioners are within the statute and respondent is liable on their claims.
To escape liability, respondent has the burden of showing the exemption does apply. But to do this it cannot merely show the definition of the Administrator is invalid. That would only leave itself and the petitioning employees subject to the Act's provisions, which require the payment of the claims. Respondent's dilemma therefore is both sharp and real. If the definition is valid, it does not cover these employees and respondent is liable to them. If the definition is invalid, clearly it exempts no one, petitioners are covered by the Act, and the respondent must pay. This is true whether the reason dictating invalidity is want of standards, application of the wrong ones, or merely formulating the result in the wrong way. This dilemma presents the alternative which respondent, the Court of Appeals and this Court have attempted to avoid in order, so it is said, to escape an 'either-or' conclusion, which is the kind the law almost always must make. It is one from which there is no [322 U.S. 607, 639] escape without exercise of inventive genius beyond the right of either court to apply and which, as applied here, makes the cure worse than the disease.
Respondent's invention, and likewise the Court of Appeal's, was to strike the limitation on the number of employees and apply the remainder of the definition. This but emasculates it. Hence all here, but one, are agreed such liberty cannot be taken with the Administrator's function. This Court's invention however does it equal or greater violence, first, as I think in emasculating it; second, and lacking even more in justification, in requiring it to be exercised with backward reaching effect.
If the Court had sought its escape in finding that there were no standards to control the Administrator's discretion or that he had applied the wrong standards, one might understand its refusal to sustain the definition. But that too would mean that petitioners would recover. The Court does neither. There is no claim, except a semblance of suggestion in a separate opinion, that the statute supplies no standards and therefore gives the Administrator 'a roving commission to create exemptions.' Nor is there one that the wrong standards were used. The invention is called forth only to correct a mode of statement.
If that were all, there would not be much room to complain. But, in addition to compelling the Administrator to make the definition in a manner which frustrates his function and the statute's objectives, or only partly fulfills them, the decision opens the door to a general expansion of the novel, and I think unauthorized, practice of retroactive administrative determination of private rights. That is true, unless these petitioners are to be specially treated, although less than a majority of the Court agree that the authorities cited to sustain it justify the procedure outlined. But if the procedure is justified in this case, it is in any other where an administrator [322 U.S. 607, 640] mistakenly includes in a regulation a factor later held to make it invalid. No reason stated makes this case a special one. And there is none. It cannot be taken that these parties are to be singled out for unique treatment, merely in order to avoid the normal legal consequences of invalidating administrative action. Hence, every interest affected by such action now must take two risks in place of one: first, the normal, inescapable risk that the governing regulation may be held invalid; second, in that event, the novel one that some future regulation, a wholly unknown quantity, will relate back over an indefinite time to create entirely new or different and unexpected rights and liabilities.
Of course there must be room for creative analogies in the law to give the desired escape from mechanical concepts and permit shaping its remedies. But we are as often told that Congress should perform the creative act in Congress' field. This should be most true where what we are called upon to recreate is Congress' own handiwork. If Congress intended the Administrator to act retroactively, Congress wholly failed to express this purpose.
Moreover, it is not remedies but rights which are thus refashioned. And not equity but law remolds them. Who knows, before the redefinition, what persons may be included in its coverage? Or whether it may not have to be made again? The same persons cannot be included. Otherwise there would be no point to this decision. If the Administrator can rephrase the same coverage in wholly geographic terms, apart from delay the only result will be to have criticized his language. If he cannot do this some persons, and no one can tell in advance how many, will be deprived altogether of rights, others given them who had none. So with liabilities.
The innovation would be serious if confined to this case or this Act. It is beyond prediction what the conse- [322 U.S. 607, 641] quences may be, of uncertainty, or hardship, of injustice in deprivation of rights, in windfalls of right to others, in laying on new and wholly unexpected liabilities and in relieving from anticipated ones, if retroactive administrative refashioning becomes the general practice. The alternative, either to sustain or to hold void the regulation, and fix the rights accordingly, is not only the accepted and established one. It is the only one by which men can know the risks they assume at the time they become subject to them.
Retroactivity is not favored in law. For this there are sound reasons, in some cases constitutional ones. Cf. Forbes Pioneer Boat Line v. Board of Commissioners, 258 U.S. 338 , 42 S.Ct. 325; Ochoa v. Hernandez y Morales, 230 U.S. 139 , 33 S.Ct. 1033. There are few occasions when retroactivity does not work more unfairly than fairly. Congress, the state legislatures and the courts apply the principle sparingly, even where they may. Cf. Graham and Foster v. Goodcell, 282 U.S. 409 , 51 S.Ct. 186; United States v. Heinszen, 206 U.S. 370 , 27 S.Ct. 742, 11 Ann.Cas. 688. Seldom if ever therefore may administrative or executive authority to apply it be inferred from legislation not expressly giving it. Compare Arizona Grocery Co. v. Atchison, T. & S.F.R. Co., 284 U.S. 370 , 52 S.Ct. 183; Helvering v. R. J. Reynolds Tobacco Co., 306 U.S. 110 , 59 S.Ct. 423. But, in any event, whatever corrective needs may prompt and vindicate a grant of such authority in other circumstances are not present in this application. Yet, if this decision is to mark the beginning of a general pattern, such authority now bids fair to become a common characteristic of administrative action.
The administrative process has increasingly important functions in our legal system. Ordinarily it does enough, if it takes care of today and tomorrow. When it begins to add yesterday, without clear congressional mandate, the burden may become too great. In any event, that has not heretofore generally been considered its task. If that task it [322 U.S. 607, 642] is to be added, the addition should be made by the body whence administrative power is derived, not by this Court's imaginative resourcefulness.
Mr. Justice DOUGLAS join in that part of this dissent which would hold that the Administrator has defined 'area of production' in a valid manner.
[ Footnote 1 ] The fact that Davenport is within four miles of Haines City, with a population greater than 2500, led the district court to conclude that Holly Hill was not located in the 'open country' or a 'rural community'. This appears to be a plain solecism. 29 Code Fed.Reg. (Supp.1939) 536.2( e), pp. 2239-40, and 536.2(d), p. 2240.
[ Footnote 2 ] It is conceded that a specific ruling on the population criterion is unnecessary.
[ Footnote 3 ] Holly Hill here attacked the finding of the district court that all of the fruit did not come from within ten miles, but we see no reason to disturb it.
[ Footnote 4 ] 'Sec. 13(a) The provisions of sections 6 and 7 shall not apply with respect to (1) any employee employed in a bona fide executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman (as such terms are defined and delimited by regulations of the Administrator); or (2) any employee engaged in any retail or service establishment the greater part of whose selling or servicing is in intrastate commerce=; or (3) any employee employed as a seaman; or (4) any employee of a carrier by air subject to the provisions of title II of the Railway Labor Act; or (5) any employee employed in the catching, taking, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacea, sponges, seaweeds, or other aquatic forms of animal and vegetable life, including the going to and returning from work and including employment in the loading, unloading, or packing of such products for shipment or in proparating, processing, marketing, freezing, canning, curing, storing, or distributing the above products or by- products thereof; or (6) any employee employed in agriculture; or (7) any employee to the extent that such employee is exempted by regulations or orders of the Administrator issued under section 14; or (8) any employee employed in connection with the publication of any weekly or semiweekly newspaper with a circulation of less than three thousand the major part of which circulation is within the county where printed and published; or (9) any employee of a street, suburban, or interurban electric railway, or local trolley or motor bus carrier, not included in other exemptions contained in this section; or (10) to any individual employed within the area of production (as defined by the Administrator), engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market, or in making cheese or butter or other dairy products; or (11) any switchboard operator employed in a public telephone exchange which has less than five hundred stations.' 52 Stat. 1067, as amended, 53 Stat. 1266, 29 U.S.C.A. 213(a).
[ Footnote 5 ] The exemptions provided in 13(a)(10) did not appear in the bill as reported to the Senate, but in the debate on the floor of that body an effort was made to extend the exemption accorded to agricultural workers, and as passed by the Senate the bill provided that 'The term 'person employed in agriculture', as used in this act, insofar as it shall refer to fresh fruits and vegetables, shall include persons employed within the area of production engaged in preparing, packing, or storing such fresh fruits or vegetables in their raw or natural state.' 81 Cong.Rec. 7876, 7949, 7957. This provision, varied somewhat by extending its coverage to all 'agricultural commodities' (82 Cong.Rec. 1783-1784), remained as part of the definition of 'Employee employed in agriculture' (H.Rep. No.2182, 75th Cong., 3d Sess., p. 2) until shortly before the bill was finally adopted by the House, at which time the so-called Biermann amendment included within the definition of employees engaged in agriculture 'individuals employed within the area of production, engaged in the handling, packing, storing, ginning, compressing, pasteurizing, drying, or canning of farm products and in making cheese and butter.' 83 Cong.Rec. 7401, 7407. At the conference on the disagreeing votes of the two Houses, the 'area of production' provision was given the form in which it was finally enacted, and there the parenthetical phrase 'as defined by the Administrator' was inserted after 'area of production'. 83 Cong.Rec. 9249.
[ Footnote 6 ] Compare this provision with 13(a)(1) exempting employees in 'a bona fide executive, administrative, professional, or local retailing capacity, or in the capacity of outside salesman (as such terms are defined and delimited by regulations of the Administrator)'. For this class, the Administrator is given the authority to define and delimit the 'terms' used. But in the same section, subdivision 10 grants authority to define not the term 'area', but to define the 'area'.
[ Footnote 7 ] See 13(a)(2)(8)(11) dealing respectively with retail or service establishments, weekly or semi-weekly newspapers and public telephone exchanges.
[ Footnote 8 ] Representative Biermann was asked whether his amendment 'would apply to a packing house located in Iowa and Illinois in the area of production, which employs two or three hundred men'. This was his complete answer: 'Speaking frankly, I think that is something that would have to be worked out. There are some packing houses in the State of Iowa that this amendment would apply to perhaps; but may I say that all over this country it has been recognized that there should be a labor differential between the large city and the little town.' Certainly Mr. Biermann did not give the remotest intimation that 'area of production' was meant to convey any idea other than that which area usually conveys.
[ Footnote 1 ] Promulgated October 20, 1938, effective four days later. 3 Fed.Reg. 2536.
[ Footnote 2 ] See Hearings on Proposed Amendment of Section 536.2 (area of production) of Regulations issued under the Fair Labor Standards Act of 1938, Wage and Hour Division, Department of Labor Ref. Nos. 54; 73; 162a; 162b; 162c.
[ Footnote 3 ] Tests proposed and considered included: the mapping of producing territories; a flat mileage-population definition; a 'first concentration point' criterion; a standard which would include only establishments which handled and prepared for the account of the farmer commodities to which he retained title. All these and others were rejected by successive administrators, after being urged and opposed by industry representatives, as presenting insuperable obstacles to carrying out the statute's major policies.
[ Footnote 4 ] Compare the definition promulgated October 20, 1938, 3 Fed.Reg. 2536, with the amendments of April 20, 1939, 4 Fed.Reg. 1655; June 17, 1939, 4 Fed.Reg. 2436; October 1, 1940, 5 Fed.Reg. 2647; and April 1, 1941, 6 Fed.Reg. 1476.
[ Footnote 5 ] Cf. Department of Labor Release R. 226, March 18, 1939; G.-60, July 24, 1940.
[ Footnote 6 ] A flat mileage definition was in force during part of the time material in this case, but was abandoned after its effects, by way of creating serious unfair discrimination between competing establishments and narrowing grocers' outlets, became evident. Cf. Department of Labor Release, G.-60, July 24, 1940.
[ Footnote 7 ] Cf. Farm and Ranch Schedules, U.S. Census of Agriculture, 16th Census of the United States, 1940.
[ Footnote 8 ] As the legislative history shows, cf. text infra at notes 13-16, there was fairly general agreement that some part of the work specified in Section 13(a) (10) should be exempt, whether or not it was done on the farm. But beyond this, a great variety of opinion existed both as to how far the exemption should go and as to the economic basis for it. Among the latter were views that the exemption should be made because the farmer bore the cost of the work, cf. 81 Cong.Rec. 7656, 7877, 7880; or because many farmers in fact performed it on their farms and as part of their operations, cf. Section 3(f), 52 Stat. 1060, 29 U.S.C.A. 206(f); 81 Cong. Rec. 7657-7659; or because others who had to resort to independent contractors to have it done would be discriminated against unless the work were exempt; cf. 81 Cong.Rec. 7656, 7658-7660, 7876. Some legislators were concerned to have the exemption apply whether the work were done in large or small plants; others to limit it to small ones only; and still others to secure it completely for particular crops. Numerous amendments were tendered, but for the most part defeated. It was not until the Conference Committee's report was framed that the problem was solved by referring it to definition by the Administrator. But even proponents of the amendments which were adopted recognized that the problem was one which 'the board ... would have to decide,' 81 Cong.Rec. 7878, 'something that would have to be worked out,' 83 Cong.Rec. 7401.
[ Footnote 9 ] Section 2(a). These conditions Congress found burden commerce, lead to labor disputes obstructing it, interfere with fair and orderly marketing, and spread themselves by causing the channels of commerce to be used for marketing among the several states the goods produced under them. Ibid.
[ Footnote 10 ] "Industry' means a trade, business, industry ... in which individuals are gainfully employed.' Section 3(h). "Agriculture' includes farming in all its branches ... and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.' Section 3(f). Section 5, 29 U.S.C.A. 205, provides for industry committees and their functioning, to which the Administrator submits data and from which he receives recommendations and reports which he must approve before making them effective in the form of minimum wage rates and industry classifications. Cf. Section 8, 29 U.S.C.A . 208.
[ Footnote 11 ] National Broadcasting Co. v. United States, 319 U.S. 190, 219 , 63 S.Ct. 997, 1011.
[ Footnote 12 ] Respondent however, consistently with its 'fact-finder' or 'surveyor' theory of the Administrator's function, says the purpose was not to distinguish, within the specified activities, between farmers and industrial workers; it was rather to go a step further and exempt the latter as well, provided only they were within an area of production as respondent conceives it. That the Administrator may exempt some, or perhaps many, who are in fact industrial workers, because they are doing these activities under factory conditions and methods, may be conceded. That he must exempt all of them, or some larger number than his judgment, formed after considering the facts, the statute's policies, and the effects of what he may do, finds proper, cannot be accepted. Respondent claims an exemption fixed by the Act. The statute has given it one only when, in the Administrator's judgment, not arbitrarily formed, it meets the conditions which he finds will execute the legislative policy.
[ Footnote 13 ] The Senate's first suggestion of 'area of production' came from Senator Copeland, 81 Cong.Rec. 7656, although Senator Schwellenbach became the chief proponent of the concept there. Senator Black, sponsor of the bill, was concerned with the scope of 'area' and sought a more accurate term for limiting its effect so as not to exempt workers in large plants, cf. 81 Cong.Rec. 7656-7660, 7876-7878, and others expressed opinions that large operators should not be exempted. For portions of the discussion on the Senate floor see also 81 Cong.Rec. 7648-7673, 7876-7888, 7927-7929, 7947-7949.
In the House of Representatives, the sponsor of the bill was Representative Norton. Chief proponent of the amendment involving 'area of production' was Representative Bierman. Cf. 83 Cong.Rec. 7325, 7326, 7401- 7408.
[ Footnote 14 ] Responding to inquiry whether packing houses in Iowa and Illinois would be exempted by his amendment, Representative Bierman said: 'Speaking frankly, I think that is something that would have to be worked out.' 83 Cong.Rec. 7401. Senator Schwellenbach clearly recognized his amendment would exempt large as well as small packing and similar plants, 81 Cong. Rec. 7877, 7878, but expressed the opinion there would not be 'any large or enormous plants' in the specified operations. In response to Senator Black's inquiry concerning the indefinite effect of 'area' without further definition, he said: 'I gave considerable thought to that. I do not believe it is possible, and that is something which the board, which has been accused of receiving too much power, would have to decide. It would have to provide a definition of 'immediate area of production." Cf. 81 Cong.Rec. 7876-7878.
[ Footnote 15 ] See the discussion cited in notes 8, 13 and 14.
[ Footnote 16 ] Cf. 81 Cong.Rec. 7948. Respondent argues from this that the intent of Congress was shown not to authorize the Administrator, by the later conference amendment, to distinguish among plants within the 'area of production' on the basis of size. The argument however ignores the fact that the amendments proposed by Senator Reynolds were drawn and intended to exempt from the statute's operation all plants having fewer than the number of employees (the amendments varied from five to ten in this respect), not merely plants engaged in the particular marginal operations specified in the various forms the Schwellenbach Amendment took during the debate. The conclusion to be drawn from the rejection of the Reynolds Amendments is not that the Senate intended to exempt all plants, large and small, covered by the Schwellenbach Amendment or by the form taken by Section 13(a)(10) in conference, but rather that the Senate was unwilling to except even all plants having as few as five employees from the statute's coverage.
[ Footnote 17 ] Cf. notes 13 and 14, supra, and the cited discussions.
[ Footnote 18 ] Cf. notes 1-6, supra, and text.
[ Footnote 19 ] United States v. Monia, 317 U.S. 424 , dissenting opinion at page 431, 432, 63 S.Ct. 409, 412.
[ Footnote 20 ] The Administrator is not a party to this suit, but has appeared and participated here as amicus curiae.
[ Footnote 21 ] In view of its disposition of the case, the Court of Appeals did not consider respondent's defenses under Sections 7(b) and 7(c) of the Act, on both of which the District Court held for petitioners.

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Constitutional Law, Admissions and confessions, Waiver of constitutional rights, Assistance of counsel. Evidence, Admissions and confessions, Impeachment of credibility. Practice, Criminal, Admissions and confessions, New trial, Assistance of counsel, Findings by judge, Failure to object, Argument by prosecutor, Instructions to jury. Grand Jury. Witness, Impeachment.
In the circumstances of a criminal trial, defense counsel was not ineffective in failing to object to certain appropriate remarks in the prosecutor's opening statement [177-179], failing to impeach a witness during cross-examination with a five year old delinquency adjudication and unrelated open criminal charges [179-181], failing to object to an isolated reference in the testimony of a police officer that the witness had looked at "[a] book of mugshots" at the police station [1811, and failing to object to certain references in the prosecutor's closing argument [181-182].
INDICTMENTS found and returned in the Superior Court Department on September 6, 1995.
The cases were tried before Robert W. Banks, J., and motions for a new trial and posttrial discovery were heard by Elizabeth B. Donovan, J.
Beth L. Eisenberg for the defendant.
Brian J.S. Cullen for the Commonwealth.
BERRY, J. The defendant was convicted of two counts of armed assault with intent to murder (G. L. c. 265, § 18), assault and battery by means of a dangerous weapon (G. L. c. 265, § 15A), unlawful possession of a firearm (G. L. c. 269, § 10[a]) and of ammunition (G. L. c. 269, § 10[h]), and one count of threatening to commit a crime (G. L. c. 275, § 2). [Note 1] He filed two motions for a new trial. The defendant's direct appeal has been consolidated with the appeal from the denial of his second new trial motion [Note 2] and his posttrial discovery motion. His claims of error are that (1) the motion to suppress his statements should have been allowed because Miranda warnings were not timely; (2) his counsel was ineffective (a) in failing to seek dismissal of the indictments when a witness recanted his grand jury identification, (b) in failing to request a continuance after delayed disclosure of certain police reports, (c) in the conduct of the trial, including failing to object to various "prosecutorial excesses" in the opening and closing, and an inadequate cross-examination of a primary witness; (3) there was error in the assault and battery with a dangerous weapon instruction; and (4) the postconviction motion for discovery was wrongly denied.
We affirm the convictions, the denial of the new trial motion, and the denial of the postconviction discovery motion.
1. Factual background. The trial evidence may be summarized as follows. On the afternoon of August 28, 1995, Michael Spinola and his friend Antonio Silva were riding bicycles when they encountered the defendant, Sammy Ortiz, sitting in his grey Mazda automobile. There was a history of animosity between the defendant and Spinola, arising out of gang conflicts and a shooting two years earlier, when Spinola's friend had killed the defendant's friend. The defendant got out of his car and confronted Spinola, challenging him to a fight and warning him that he and his friends were "going to catch a bad one," which meant, Spinola testified, "getting hurt or killed," and that the defendant was "not going to let it rest until somebody else goes away." Spinola retorted, "Fight or just let it go." The defendant then popped open his car trunk and pulled out a crumpled black shirt that appeared to have something rolled inside. Not being able to see what, if anything, was concealed in the shirt, but fearing the defendant had a weapon, Spinola and Silva sped away on their bikes. As the two turned a corner they heard the screeching of tires followed within seconds by the sound of gunshots. Turning around, Spinola saw the grey Mazda pass through the intersection. Spinola could not see inside the car. Immediately thereafter and close to the shooting scene, Spinola found that his four year old nephew had been shot in the leg [Note 3] while playing on the sidewalk near Spinola's house. Spinola called the police and told the responding officers that he had been the intended victim of the shooting. He identified the defendant by name and later identified his photograph at the police station. Shell casings were found at the scene as well as bullets and a bullet hole in a car parked nearby.
placed the defendant under arrest and gave him Miranda warnings. At the Stoughton police station, Officer Bohn again stated the Miranda warnings, and the defendant signed an acknowledgment that he had received advice of his rights. After booking, Boston detectives took custody of the defendant and drove him back to Boston. During the trip, Detective Arnstein asked what had happened. The defendant replied that "he didn't shoot anybody," that there was a Hispanic male in his car in the passenger seat, whom he only knew as "Michael," who fired out of the passenger side of his car. When asked about the gun, the defendant said he could show the officers where the passenger Michael had thrown the gun. He directed the officers to a yard. No gun was found. Contrary to the defendant's description of the passenger as the shooter, a bystander described the shots as being fired from the driver's window. There was also evidence that the driver's side of the car would have been facing the victim as the car turned through the intersection. A search of the defendant's car incident to arrest revealed a black hooded sweatshirt in the trunk. A red tee shirt and black pants, seized pursuant to a warrant after the defendant's arrest, matched witnesses' descriptions of the clothing worn by the assailant at the scene.
2. Motion to suppress: untimely Miranda warnings. In his direct appeal, the defendant contends his statements to Detective Arnstein during the ride to Boston should have been suppressed because the previously administered Miranda warnings were merely "formulaic" and were stale because not repeated prior to his statements. In denying the motion to suppress, the trial judge found that, by the dual warnings, the defendant was completely advised of his Miranda rights, and the defendant knowingly and intelligently waived his rights in speaking with the detective. We agree.
impairment. [Note 4] There was also testimony that the Miranda warnings were given close in time to the statements. The defendant had been twice properly advised of his Miranda rights within approximately ninety minutes of his being transported to Boston: first, at the time of his arrest, and again during the booking process. While "Miranda warnings, once given, are not to be accorded unlimited efficacy or perpetuity . . . there is no requirement that an accused be continually reminded of his rights once he has intelligently waived them" (citations omitted). Commonwealth v. Mello, 420 Mass. 375 , 385-386 (1995). See Commonwealth v. Cruz, 373 Mass. 676 , 687 (1977) (lapse of three and one-half hours between warnings and defendant's incriminating statements did not require fresh Miranda warnings); Commonwealth v. Mello, 420 Mass. at 386 (six hour lapse did not warrant suppression). Based on this record, we believe that "the judge permissibly concluded that, in light of all the circumstances, the lapse of time was not significant and did not negate the validity of the defendant's knowing, voluntary, and intelligent waiver." Commonwealth v. Silva, 388 Mass. 495 , 502 (1983).
3. Motion for new trial.
motion, in which case the appropriate harmless or nonprejudicial error applies." Commonwealth v. Vinnie, supra at 163 n.2. We need not add to the analysis of the appellate principles of resurrected error set forth in Vinnie and Hallet because, even if we were to deem applicable the prejudicial error standard, reversal of the defendant's convictions is not warranted on any of the grounds he advanced on his motion for new trial. We turn now to the issues raised in the motion for new trial.
b. The recanted grand jury identification. In his second new trial motion, the defendant asserted that his lawyer rendered ineffective assistance in not moving to dismiss the indictments when the witness Silva recanted his grand jury identification of the defendant made some sixteen months before trial. At the grand jury, Silva testified he saw the defendant's face as he shot the gun out of the driver's side window of the Mazda. Prior to trial, the defendant obtained three letters from Silva repudiating the identification as mistaken. Defense counsel produced the letters to the prosecutor on the first day of trial. Silva had also communicated with the prosecutor prior to trial and related that his identification was mistaken. On the Saturday two days before trial, the prosecutor interviewed Silva to determine what his trial testimony would be. He asserted that his grand jury identification was mistaken. When the prosecution called Silva as a witness on the second day of trial, the judge held a voir dire, wherein Silva recanted the identification on the record, at first reiterating (as in the letters and prior out-of-court statements) that he was mistaken because his back was to the Mazda and "[t]he only thing I seen was Sammy [the defendant] or Mike and that's it." Then, upon further inquiry by the judge, Silva moved from the position of mistake to a new position of a deliberately falsified identification. He told the judge that, if called to testify at trial, he would not identify the defendant as the shooter. The judge excluded him as a trial witness.
dismiss the indictments would have been allowed. We conclude, as did the motion judge, that such a motion would have been unavailing, and thus there was no ineffective assistance in the failure to file such a motion.
The controlling case setting forth the standards for determining whether false [Note 5] grand jury testimony compels dismissal of an indictment is Commonwealth v. Mayfield, 398 Mass. 615 , 621-622 (1986).
trial motion, the defendant attacked the prosecutor's delayed disclosure of certain police reports, contending that the late disclosure violated the Commonwealth's discovery obligations and that defense counsel was ineffective for failing to request a continuance, a mistrial, or other sanctions against the Commonwealth under Mass.R.Crim.P. 14(c), 378 Mass. 880 (1979). The facts underlying the defendant's claims are as follows. On the first day of trial, the prosecutor informed defense counsel of the possible existence of additional police reports. On the second trial day, the prosecutor produced additional reports, including two reports of interviews on the day of the shooting with Eddricka Miller, a neighbor who had observed the shooting. Miller was located and brought to court that day and was interviewed by the prosecutor and defense counsel. He was called as a prosecution witness.
the standard by which we review a challenge to the tactical decisions of counsel. [Note 10] Commonwealth v. White, 409 Mass. 266 , 273 (1991).
d. Ineffective assistance claims involving conduct of the trial. The defendant asserts that trial counsel was ineffective in failing to object to "prosecutorial excesses" [Note 13] in the opening and closing. He also recites a litany of strategic trial decisions for which he criticizes trial counsel. Dividing the performance of trial counsel piece by piece to form a collage of alleged ineffectiveness is generally not persuasive, as we assess the performance of counsel as a whole. Commonwealth v. Adams, 374 Mass. 722 , 728 (1978). Here, both the trial judge and the motion judge found that trial counsel was an experienced trial attorney and "veteran of the criminal defense bar," who ably defended, "advocated well at side bar," lodged many timely objections, and conducted organized and directed cross-examinations. Having reviewed the record as a whole, we agree that counsel's conduct was not ineffective. We address the main points raised.
"get one of us" and that he (Spinola) would "catch a bad one," which Spinola testified meant "getting hurt or killed" by "[e]ither [a] bullet or knife." As to the second reference, that the evidence that Spinola believed a gun was hidden in the black shirt was later excluded does not demonstrate that the prosecutor lacked a good faith basis for the opening reference. She did, in fact, seek to elicit that evidence. See Commonwealth v. Burke, 414 Mass. 252 , 262 (1993). Given that the two references were not inappropriate, it was not ineffective assistance not to object to either of these remarks.
(ii) Cross-examination of Spinola. The defendant criticizes the manner of trial counsel's cross-examination of Spinola as ineffective. The claim is not well taken. The cross-examination of Spinola was directed to the main theory of the defense -- that the mysterious passenger, Michael, was the shooter. Bias on Spinola's part was further developed by highlighting that it was his young nephew who had been shot, Spinola considered himself the real target of the shooting, and there was a longstanding history of hate between the defendant and Spinola.
juvenile record, [Note 16] we conclude that there was no such tendency here. Therefore, counsel was not ineffective for failing to impeach Spinola with the delinquency adjudication.
The defendant's related claim -- that his trial attorney did not impeach Spinola with unrelated open criminal charges [Note 17] -- similarly fails. There was no material difference between the descriptions Spinola gave before the initiation of the subject pending charges and the trial testimony he rendered after initiation of these charges. Both Spinola's initial descriptions, including his identification on the day of the crime placing the defendant in the car during the initial confrontation, and his similar description and identification repeated later at the grand jury, preceded the initiation of the unrelated pending charges against Spinola. Both were also in accord with his trial testimony given after the unrelated pending charges were filed. Even if we assume, without deciding, that counsel should have sought to impeach Spinola with the pending charges, where "[t]here clearly exists in the record sufficient consistency between [the witness's] pretrial identification of the defendant and his testimony at trial . . . [an] otherwise unsatisfactory handling of the impeachment issue [relating to pending charges] does not require a new trial." Commonwealth v. Hamilton, 426 Mass. 67 , 74 (1997).
Commonwealth v. Bart B., 424 Mass. 911 , 916 (1997). That principle is applicable to this record.
(iii) Mugshot reference. This ineffective assistance claim is based on the failure of counsel to object to a passing reference in Detective Gillespie's testimony that Spinola had looked at "[a] book of mugshots" at the police station. As the motion judge noted, the detective did not testify that Spinola identified the defendant in the book of mugshots or even that the defendant's photograph was in the book. Moreover, while objection was not stated in open court, there was a conference at side bar wherein the judge admonished the prosecutor; the mugshot photograph was not admitted in evidence, and there was no further reference to it. Given the isolated reference, counsel reasonably may have decided not to call further attention to it by either objection or request for limiting instruction. Commonwealth v. Fredette, 396 Mass. 455 , 466 (1985).
(iv) The prosecutor's closing. The defendant contends that his counsel should have objected to the prosecutor's impermissible reference to excluded evidence in the remark that the "street smart" Spinola "was right in this case, [when he] assumed [there] was a gun" wrapped in the sweatshirt. We do not find the reference improper, and hence the failure to object was not ineffective assistance. "Counsel are entitled to argue reasonable inferences from the evidence, even if those inferences are not inescapable." Commonwealth v. Rivera, 430 Mass. 91 , 101 (1999). Here, defense counsel argued there was no evidence the defendant had a gun in his possession. In response, the prosecutor reasonably could urge the jury to draw a contrary inference based on the evidence that immediately after threatening Spinola, the defendant opened the car trunk and grabbed the black shirt with an object apparently hidden therein; the defendant made this movement in so threatening a manner that Spinola and Silva fled post haste; within seconds of the retreat, gunshots emanated from the car; and the defendant admitted that he was present in the car.
4. The jury instruction on assault and battery with a dangerous weapon. In his direct appeal, the defendant contends that the judge imported an erroneous general intent standard into and "contaminated" the instruction on assault and battery with a dangerous weapon, thereby reducing the Commonwealth's burden of proof for the intentional touching element. There was no objection at trial. Accordingly, our inquiry is narrowed: was there error and, if so, did it give rise to a substantial risk of a miscarriage of justice. See Commonwealth v. Alphas, 430 Mass. 8 , 13 (1999).
transitional phrase, referenced the single word "intent." Nevertheless, because assault and battery with a dangerous weapon is a general intent crime, Commonwealth v. Ford, 424 Mass. 709 , 711 (1997), we assume some carryover of the prior general intent definition.
We agree with the defendant that the trial judge erred when he instructed, "General intent is when we do things more or less by reflex." This language was held to be error in Commonwealth v. Gunter, 427 Mass. 259 , 269 (1998). However, in Gunter, the court affirmed the conviction, holding that, notwithstanding the error, "[the] instructions adequately stated that the Commonwealth had to prove the requisite state of mind to commit the . . . felony [here, an intentional touching with a dangerous weapon]. In light of the jury instructions as a whole, any error in the instruction on general intent . . . [did] not rise to the level of a substantial likelihood of a miscarriage of justice." Id. at 269- 270. A similar result obtains here. Following the instruction on transferred intent, the judge correctly repeated the instruction on assault and battery with a dangerous weapon, again reiterating that the jury must find an intentional touching beyond a reasonable doubt and that the touching did not "happen accidentally." Compare Commonwealth v. Ford, 424 Mass. at 711-712; Commonwealth v. Garofalo, 46 Mass. App. Ct. 191 , 193-194 n.3 (1999). As given, the instruction on assault and battery with a dangerous weapon addressed the "requisite state of mind" concerning the intentional touching with the weapon and did not give rise to a substantial risk of a miscarriage of justice.
Order denying motion for postconviction discovery affirmed.
[Note 1] On one count of armed assault with intent to murder, the defendant was sentenced to from ten to fifteen years imprisonment. On the other armed assault count, he was sentenced to five years probation from and after; concurrent sentences were imposed on the other offenses. The guilty verdicts for unlawful possession of ammunition and one count of threatening a crime were placed on file with the defendant's consent, and are not before us. See Commonwealth v. Mahar, 430 Mass. 643 , 644 n.1 (2000). A required finding of not guilty entered on a second threat count.
[Note 2] The defendant did not prosecute his notice of appeal from denial of the first new trial motion, which was heard by the trial judge. The second motion for new trial was heard by a different judge, who made findings of her own and also incorporated the findings from the trial judge's ruling denying the first motion for new trial.
[Note 3] The four year old child sustained serious injuries requiring hospitalization and encasement in a body cast for three months. The shooting of the child was the predicate for the charge of assault and battery by means of a dangerous weapon.
[Note 4] The judge was informed by counsel that the voluntariness of the defendant's statements was not at issue. He nonetheless diligently made findings concerning the provision of the Miranda warnings, the waiver thereof, and the voluntariness of the statements. While appellate review brings "independent determination" to the constitutional validity of a waiver, "[t]he judge's subsidiary findings with regard to his determination that a waiver was knowing and voluntary will not be disturbed on appeal if the findings are warranted by the evidence . . . . Furthermore, a trial judge's ultimate conclusion of a voluntary waiver is entitled to deference." (Citations omitted.) Commonwealth v. Silva, 388 Mass. 495 , 502 (1983).
[Note 5] We assume for purposes of this analysis that the identification was false. However, we note, as the trial judge observed in ruling on the first new trial motion, the recantation was extremely selective. Silva continued to confirm that the defendant was in the Mazda, and did not recant his testimony concerning the events occurring before and during the drive-by shooting. Markedly, the principal differences in the recantation were limited to substituting the unknown Mike for a woman passenger (whom Silva had described to the grand jury), and his new inability to determine which one, driver or passenger, fired the gun out the Mazda window. Silva did not say in the recantation that the defendant did not fire the shots, rather he contended that he had not seen who the shooter was. The prosecutor contended that it was the recantation, and not the grand jury identification, that was false. See note 6, infra.
[Note 6] The prosecutor described the interview as follows. "I went to see him and he said that he was going to say that it was a mistake. I said, 'Tony, that's not what you said before.' He said he was going to say it was a mistake." The prosecutor told the trial judge, "I didn't think he was lying before the grand jury. He says he's lying, but I don't think he's lying. . . . He told me he was mistaken, he didn't lie, that's what he told me." In the voir dire, Silva similarly began by claiming mistake: "I told her that it was a mistaken identification. . . ."
[Note 7] The defendant also argues that the prosecutor had constitutional and ethical obligations to request dismissal of the indictments and cites United States v. Basurto, 497 F.2d 781 (9th Cir. 1974). Basurto is quite distinguishable. In the first place, the defendant has not established that the prosecutor knew of the falsity, unlike in Basurto. Secondly, in that case, the perjured testimony was recanted in toto. That is not so here. Lastly, we note that Basurto "has been accorded mixed reviews, even by the court which decided it," and the First Circuit has declined to endorse it. See United States v. Mangual-Corchado, 139 F.3d 34, 41 (1st Cir. 1998).
[Note 8] Even if we were to address the second Mayfield element and assume, without deciding, that the recanted identification was material, "the fact that intentionally or recklessly false or deceptive evidence concerns a material fact does not alone warrant dismissal of an indictment. The defendant must also show probable prejudice in the grand jury proceedings." Commonwealth v. Mayfield, 398 Mass. at 622. In this case, there was no probable prejudice in the grand jury because, as the motion judge found, assessed in totality, the other grand jury testimony -- independent of, and apart from, the Silva identification -- presented incriminating evidence to the grand jury and provided an abundance of probable cause for the indictments. Contrast Commonwealth v. McCarthy, 385 Mass. 160 , 163 (1982). The full compilation of grand jury evidence included the testimony of seven witnesses and highly inculpatory evidence, including but not limited to the defendant's admission placing him in the car at the time of the shooting, real evidence seized pursuant to warrant, and corroborative testimony from the witnesses.
[Note 9] In measuring the reasonableness of counsel's action, we consider whether the late disclosure gave rise to material prejudice. "When the ground for a motion for a new trial 'involves late disclosure by the prosecution, without any showing of bad faith on its part . . . a defendant is required to show material prejudice from the [delay in] disclosure before a new trial can be considered.' " Commonwealth v. Stote, 433 Mass. 19 , 22 (2000), quoting from Commonwealth v. Hamilton, 426 Mass. 67 , 70 (1997). We agree with the trial judge, who, having considered the trial evidence and the defense theory of the case, concluded that he could not "conceive of any defense, other than the one pursued, that the defendant could have employed had he known earlier" of the Miller interview reports and, accordingly, earlier disclosure of the reports would not have created a reasonable doubt that would not otherwise have existed.
[Note 10] The defendant theorizes that he may have lost a substantial defense because counsel's failure to continue the case deprived him of further investigation that might have shown that the witness Miller was mistaken or untruthful, or that there was inadequate police investigation of the information provided by the witness. Both assertions are far too speculative in terms of yielding material evidence helpful to the defense. See Commonwealth v. Carter, 429 Mass. 266 , 270 (1999).
[Note 11] As in Commonwealth v. St. Germain, 381 Mass. 256 , 261-262 n.8 (1980), the Commonwealth does not argue that the fact that the prosecutor herself was unaware of the police reports excuses the Commonwealth's delay in disclosure. Nor do we condone the Commonwealth's failure to fulfill its discovery obligations. See id. However, the record, including the postargument submissions, does not support the defendant's contention that the prosecutor knew of the reports because she was at the crime scene on the day of the shooting, when the interviews underlying the reports were conducted, but deliberately withheld them. In fact, the prosecutor represented to the trial judge that she only learned there might be additional police reports on the first day of trial and immediately informed defense counsel. The next day, she received the subject reports from a detective and produced them to the defense. That the prosecutor had no earlier knowledge of the reports or the witness is further confirmed by the fact that Miller was first sought and brought to the courthouse on the second trial day.
[Note 12] Given our holdings concerning the late disclosure of the police reports, there was no abuse of discretion in the denial of the defendant's postconviction discovery motion. See Commonwealth v. Stewart, 383 Mass. 253 , 256-257 (1981). The defendant has failed to "establish 'a prima facie case for relief.' " Commonwealth v. Tague, 434 Mass. 510 , 519 (2001), quoting from Mass.R.Crim.P. 30(c)(4), 378 Mass. 900 (1979).
[Note 13] In his compilation of prosecutorial excesses, the defendant also includes the grand jury issue and the late disclosure (previously addressed). In a footnote in his reply brief, the defendant added to this list a suggestion of witness intimidation by a detective who accompanied the prosecutor during the pretrial interview of Silva. He contends that the detective overreached and told Silva that he could be subject to prosecution and jail if he did not testify truthfully, presumably including his prior identification of the defendant. Silva did not testify at trial. A footnote in a reply brief of one sentence and a citation does not satisfy the appellate standards for presenting an appeal as required by Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975). Commonwealth v. Lydon, 413 Mass. 309 , 317-318 (1992) ("[A]rguments relegated to a footnote do not rise to the level of appellate argument"). Accordingly, this issue has been waived.
[Note 14] Davis v. Alaska, 415 U.S. 308 (1974). Commonwealth v. Ferrara, 368 Mass. 182 (1975).
[Note 15] The defendant's argument that Bembury is no longer good authority because it was decided before the 1991 amendment to G. L. c. 119, § 60, is not correct. That St. 1991, c. 488, § 1, by amendment, made clear that a delinquency adjudication "may be used for impeachment purposes in subsequent delinquency or criminal proceedings in the same manner and to the same extent as prior criminal convictions" (emphasis added), does not change the rationale of the case, that there is no absolute right to such use. Nor does it change the result here that it was not ineffective assistance to fail to impeach with the prior adjudication.
[Note 16] The record has been impounded.
[Note 17] The defendant has not offered any showing that there was any promise, reward or inducement relating to the pending charges. "[I]n the absence of evidence 'indicat[ing] the strong possibility that the witness [was] cooperating with the prosecution in exchange for leniency,' . . . or that inducements had been offered or promises made, we cannot say that counsel's failure to attempt to show bias was 'manifestly unreasonable.' See Commonwealth v. Daigle, 379 Mass. 541 , 545-546 (1980) (counsel justifiably declined to press claim that witness exchanged testimony for leniency where 'evidently no such arrangement existed')." (Citation omitted.) Commonwealth v. Roberts, 423 Mass. 17 , 21 (1996).
[Note 18] We have reviewed certain other remarks in the closing that are challenged and were the subject of briefing. We do not discern vouching; other remarks were de minimis and were not improper (e.g., where the defendant lived). Still other references to the closing are merely warehoused in a footnote in the defendant's brief. As such, they were not properly presented on appeal and are deemed waived. Mass.R.A.P. 16(a)(4). See note 13, supra.
[Note 19] The instruction on assault and battery with a dangerous weapon correctly charged that the Commonwealth had to prove beyond a reasonable doubt "that the defendant touched the person of the alleged victim, however slightly, without . . . reason or excuse to do so, . . . that the touching was intentional in the sense that it did not happen accidentally . . ., [a]nd . . . [that] . . . the touching was done with a dangerous weapon."