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A federal grand jury returned two indictments against petitioner for offenses under 21 U.S.C. One charged him and nine others with violating 846 by conspiring to distribute heroin and cocaine during a specified period in violation of 841 (a) (1), the indictment specifying, inter alia, that the conspiracy was to be accomplished by petitioner's assumption of leadership of a certain organization, by distribution of controlled substances, and by acquisition of substantial sums of money through such distribution. The other charged petitioner alone with violating 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws, by his distributing and possessing with intent to distribute heroin and cocaine, in violation of 841 (a) (1) during the same specified period, the indictment alleging that he had undertaken the distribution "in concert" with five or more others, with respect to whom he occupied the position of organizer and supervisor, and that as a result of the distribution he had obtained a substantial income. The court denied a motion by the Government to consolidate the indictments for trial, which the petitioner and his codefendants had opposed on the grounds that neither the parties nor the charges were the same and that, based on the overt acts charged, much of the 846 evidence would not inculpate petitioner and would therefore be inadmissible against him on the 848 charge. Petitioner and six codefendants were first tried and found guilty on the 846 indictment, petitioner receiving the maximum sentence applicable to him of 15 years in prison, a $25,000 fine, and three-year special parole term, and the conviction was affirmed on appeal. Petitioner then moved to dismiss the 848 indictment on the ground that in the 846 trial he had already been placed in jeopardy for the same offense and that the "same evidence" rule of Blockburger v. United States, 284 U.S. 299 , barred the second prosecution since a 846 conspiracy was a lesser included offense of a 848 continuing criminal enterprise. Following denial of petitioner's motion on the ground that the offenses were separate, petitioner was tried and found guilty of the 848 offense, and was given the maximum sentence for a first offender, viz., life imprisonment and a $100,000 fine, to run consecutively with the 846 sentence. The Court of Appeals, [432 U.S. 137, 138] although concluding that 846 was a lesser included offense of 848 and that the earlier conviction would normally under Blockburger bar the subsequent prosecution, held that Iannelli v. United States, 420 U.S. 770 , created a new double jeopardy rule applicable only to complex statutory crimes, where greater and lesser offenses could be separately punished if, as here, Congress so intended. Petitioner challenged the Iannelli interpretation and also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense and conviction of the lesser and that he had not waived the double jeopardy issue. Held: The judgment is affirmed in part, vacated in part, and remanded. Pp. 147-158; 160.
532 F.2d 1101, affirmed in part, vacated in part, and remanded.
William F. Sheehan III argued the cause for the United States. With him on the brief were Acting Solicitor General Friedman and Assistant Attorney General Thornburgh.
MR. JUSTICE BLACKMUN announced the judgment of the Court and an opinion in which THE CHIEF JUSTICE, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join.
This case involves the extent of the protection against multiple prosecutions afforded by the Double Jeopardy Clause of the Fifth Amendment, under circumstances in which the defendant opposes the Government's efforts to try charges under 21 U.S.C. 846 and 848 in one proceeding. It also raises the question whether 846 is a lesser included offense of 848. Finally, it requires further explication of the Court's decision in Iannelli v. United States, 420 U.S. 770 (1975).
A. According to evidence presented at trial, petitioner Garland Jeffers was the head of a highly sophisticated narcotics distribution network that operated in Gary, Ind., from January 1972 to March 1974. The "Family," as the organization was known, originally was formed by Jeffers and five others and was designed to control the local drug traffic in the city of Gary. Petitioner soon became the dominant figure in the organization. He exercised ultimate authority over the substantial revenues derived from the Family's drug sales, extortionate practices, and robberies. He disbursed funds to pay salaries of Family members, commissions of street workers, and incidental expenditures for items such as apartment rental fees, bail bond fees, and automobiles for certain [432 U.S. 137, 140] members. Finally, he maintained a strict and ruthless discipline within the group, beating and shooting members on occasion. The Family typically distributed daily between 1,000 and 2,000 capsules of heroin. This resulted in net daily receipts of about $5,000, exclusive of street commissions. According to what the Court of Appeals stated was "an extremely conservative estimate," 1 petitioner's personal share from the operations exceeded a million dollars over the two-year period.
On March 18, 1974, a federal grand jury for the Northern District of Indiana returned two indictments against petitioner in connection with his role in the Family's operations. The first, No. H-CR-74-56, charged petitioner and nine others with an offense under 21 U.S.C. 846, 2 by conspiring to distribute both heroin and cocaine during the period between November 1, 1971, and the date of the indictment, in violation of 21 U.S.C. 841 (a) (1). 3 App. 5-11. The indictment specified, among other things, that the conspiracy was to be accomplished by petitioner's assumption of leadership of the Family organization, by distribution of controlled substances, and by acquisition of substantial sums of money through the distribution of the controlled substances. Id., at 6. The [432 U.S. 137, 141] second indictment, No. H-CR-74-57, charged petitioner alone with a violation of 21 U.S.C. 848, which prohibits conducting a continuing criminal enterprise to violate the drug laws. 4 Like the first, or conspiracy, indictment, this second indictment charged that petitioner had distributed and possessed with intent to distribute both heroin and cocaine, in violation of 841 (a) (1), again between November 1, 1971, and the date of the indictment. As required by the statute, the indictment alleged that petitioner had undertaken the distribution "in concert with five or more other people with respect to whom he occupied a position of organizer, supervisor and [432 U.S. 137, 142] manager," and that as a result of the distribution and other activity he had obtained substantial income. App. 3-4.
Shortly after the indictments were returned, the Government filed a motion for trial together, requesting that the continuing-criminal-enterprise charge be tried with the general conspiracy charges against petitioner and his nine codefendants. Id., at 12-14. The motion alleged that joinder would be proper under Fed. Rule Crim. Proc. 8, since the offenses charged were of the same or similar character and they were based on the same acts or transactions constituting parts of a common scheme or plan. It also represented that much of the evidence planned for the 848 trial was based on the same transactions as those involved in the 846 case. Consequently, it argued that joinder was appropriate and within the court's power pursuant to Fed. Rule Crim. Proc. 13.
The defendants in the 846 case filed a joint objection to the Government's motion. App. 15-24. Petitioner and his nine codefendants argued generally that joinder would be improper under Fed. Rules Crim. Proc. 8 and 14, since neither the parties nor the charges were the same. The codefendants were particularly concerned about the probable effect of the evidence that would be introduced to support the continuing-criminal-enterprise charge and about the jury's ability to avoid confusing the two cases. Another argument in the objection focused directly on petitioner. 5 It noted that the 846 indictment [432 U.S. 137, 143] charged 17 overt acts, but that petitioner was named in only 10 of them, and was alleged to have participated actively in only 9. Thus, the argument went, it was likely that much of the evidence in the conspiracy trial would not inculpate petitioner and would therefore be inadmissible against him in the continuing-criminal-enterprise trial. Although a severance of the conspiracy charges against petitioner from those against the nine codefendants might have alleviated this problem, petitioner never made such a motion under Rule 14. On May 7, the court denied the Government's motion for trial together and thereby set the stage for petitioner's first trial on the conspiracy charges.
B. The trial on the 846 indictment took place in June 1974. A jury found petitioner and six of his codefendants guilty. Petitioner received the maximum punishment applicable to him under the statute - 15 years in prison, a fine of $25,000, and a 3-year special parole term. 6 The Court of Appeals affirmed the conviction, 520 F.2d 1256 (CA7 1975), and this Court denied certiorari, 423 U.S. 1066 (1976). 7 [432 U.S. 137, 144]
While the conspiracy trial and appeal were proceeding, petitioner was filing a series of pretrial motions in the pending criminal-enterprise case. When it appeared that trial was imminent, petitioner filed a motion to dismiss the indictment on the ground that in the conspiracy trial he already had been placed in jeopardy once for the same offense. He argued both that the two indictments arose out of the same transaction, and therefore, the second trial should be barred under that theory of double jeopardy, and that the "same evidence" rule of Blockburger v. United States, 284 U.S. 299 (1932), should bar the second prosecution, since a 846 conspiracy was a lesser included offense of a 848 continuing criminal enterprise. 8 To forestall the Government's anticipated waiver argument, petitioner asserted that waiver was impossible, since his objection to trying the two counts together was based on his Sixth Amendment right to a fair trial, and his opposition to the 848 trial was based on his Fifth Amendment double jeopardy right. A finding of waiver, according to his argument, would amount to penalizing the exercise of one constitutional right by denying another. App. 25-27.
The Government, in its response to the motion to dismiss, asserted that 846 and 848 were separate offenses, and for this reason petitioner would not be placed twice in jeopardy by the second trial. 9 The District Court agreed with this analysis and denied petitioner's motion shortly before the second trial began. [432 U.S. 137, 145]
At the second trial, the jury found petitioner guilty of engaging in a continuing criminal enterprise. Again, he received the maximum sentence for a first offender: life imprisonment and a fine of $100,000. See n. 4, supra. The judgment specified that the prison sentence and the fine were "to run consecutive with sentence imposed in H-CR-74-56 [the conspiracy case]." Record, Doc. 105. Thus, at the conclusion of the second trial, petitioner found himself with a life sentence without possibility of probation, parole, or suspension of sentence, and with fines totaling $125,000. 10
On appeal, the conviction and sentence were upheld. 532 F.2d 1101 (CA7 1976). The Court of Appeals concluded that 846 was a lesser included offense of 848, since the continuing-criminal-enterprise statute expressly required proof that the accused had acted in concert with five or more other persons. In the court's view, this requirement was tantamount to a proof of conspiracy requirement. 11 Construing 848 to require proof of agreement meant that all the elements of the 846 offense had to be proved for 848, in addition to the elements of a supervisory position and the obtaining of substantial income or resources; 12 thus, 846 [432 U.S. 137, 146] and 848 satisfied the general test for lesser included offenses. Although the court stated that ordinarily conviction of a lesser included offense would bar a subsequent prosecution for the greater offense, relying on Gavieres v. United States, 220 U.S. 338 (1911); Blockburger v. United States, supra; and Waller v. Florida, 397 U.S. 387 (1970), it read Iannelli v. United States, 420 U.S. 770 (1975), to create a new double jeopardy rule applicable only to complex statutory crimes.
The two statutes at issue in Iannelli were 18 U.S.C. 371, the general federal conspiracy statute, and 18 U.S.C. 1955, the statute prohibiting illegal gambling businesses involving five or more persons. Despite language in Iannelli seemingly to the contrary, 420 U.S., at 785 n. 17, the Court of Appeals stated that 371 is a lesser included offense of 1955. 532 F.2d, at 1109. The court attached no significance to the fact that 1955 contains no requirement of action "in concert." It believed that Iannelli held that greater and lesser offenses could be punished separately if Congress so intended, and it adopted the same approach to the multiple-prosecution question before it. Finding that Congress, in enacting 848, was interested in punishing severely those who made a substantial living from drug dealing, and that Congress intended to make 848 an independent crime, the court concluded that 846 and 848 were not the "same offense" for double jeopardy purposes. It therefore held that the conviction on the first indictment did not bar the prosecution on the second.
In his petition for certiorari, petitioner challenged the Court of Appeals' reading of Iannelli and suggested again that 846 was a lesser included offense of 848. He also contended that the Double Jeopardy Clause was violated by the prosecution on the greater offense after conviction for the lesser. Finally, he argued that he had not waived the double jeopardy [432 U.S. 137, 147] issue. In addition to these issues, it appears that cumulative fines were imposed on petitioner, which creates a multiple-punishment problem. We granted certiorari. 429 U.S. 815 (1976). We consider first the multiple prosecution, lesser included offense, and waiver points, and then we address the multiple-punishment problem.
A. The Government's principal argument for affirming the judgment of the Court of Appeals is that Iannelli controls this case. Like the conspiracy and gambling statutes at issue in Iannelli, the conspiracy and continuing-criminal-enterprise statutes at issue here, in the Government's view, create two separate offenses under the "same evidence" test of Blockburger. The Government's position is premised on its contention that agreement is not an essential element of the 848 offense, despite the presence in 848 (b) (2) (A) of the phrase "in concert with." If five "innocent dupes" each separately acted "in concert with" the ringleader of the continuing criminal enterprise, the Government asserts, the statutory requirement would be satisfied. Brief for United States 23.
If the Government's position were right, this would be a simple case. In our opinion, however, it is not so easy to transfer the Iannelli result, reached in the context of two other and different statutes, to this case. In Iannelli, the Court specifically noted: "Wharton's Rule applies only to offenses that require concerted criminal activity, a plurality of criminal agents." 420 U.S., at 785 (emphasis in original). Elaborating on that point, the Court stated: "The essence of the crime of conspiracy is agreement, . . . an element not contained in the statutory definition of the 1955 offense." Id., at 785 n. 17. Because of the silence of 1955 with regard to the necessity of concerted activity, the Court felt constrained to construe the statute to permit the possibility that [432 U.S. 137, 148] the five persons "involved" in the gambling operation might not be acting together. 13 See also Pinkerton v. United States, 328 U.S. 640, 643 (1946).
The same flexibility does not exist with respect to the continuing-criminal-enterprise statute. Section 848(b)(2)(A) restricts the definition of the crime to a continuing series of violations undertaken by the accused "in concert with five or more other persons." Clearly, then, a conviction would be impossible unless concerted activity were present. The express "in concert" language in the statutory definition quite plausibly may be read to provide the necessary element of "agreement" found wanting in 1955. Even if 848 were read to require individual agreements between the leader of the enterprise and each of the other five necessary participants, enough would be shown to prove a conspiracy. It would be unreasonable to assume that Congress did not mean anything at all when it inserted these critical words in 848. 14 In the [432 U.S. 137, 149] absence of any indication from the legislative history or elsewhere to the contrary, the far more likely explanation is that Congress intended the word "concert" to have its common meaning of agreement in a design or plan. For the purposes of this case, therefore, we assume, arguendo, that 848 does [432 U.S. 137, 150] require proof of an agreement among the persons involved in the continuing criminal enterprise. 15 So construed, 846 is a lesser included offense of 848, because 848 requires proof of every fact necessary to show a violation under 846 as well as proof of several additional elements. 16
B. Brown v. Ohio, post, p. 161, decided today, establishes the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense. Post, at 168-169. What lies at the heart of the Double Jeopardy Clause is the prohibition against multiple prosecutions for "the same offense." See United States v. Wilson, 420 U.S. 332, 343 (1975). Brown reaffirms the rule that one convicted of the greater offense may not be [432 U.S. 137, 151] subjected to a second prosecution on the lesser offense, since that would be the equivalent of two trials for "the same offense." Post, at 168. See In re Nielsen, 131 U.S. 176, 187 (1889). Because two offenses are "the same" for double jeopardy purposes unless each requires proof of an additional fact that the other does not, post, at 168, it follows that the sequence of the two trials for the greater and the lesser offense is immaterial, 17 and trial on a greater offense after conviction on a lesser ordinarily is just as objectionable under the Double Jeopardy Clause as the reverse order of proceeding. 18 Cf. Waller v. Florida, 397 U.S. at 390. Contrary to the suggestion of the Court of Appeals, Iannelli created no exception to these general jeopardy principles for complex statutory crimes. 19
The rule established in Brown, however, does have some exceptions. One commonly recognized exception is when all the events necessary to the greater crime have not taken place at the time the prosecution for the lesser is begun. See Brown v. Ohio, post, at 169 n. 7; Blackledge v. Perry, 417 U.S. 21, 28 -29, and n. 7 (1974); Diaz v. United States, 223 U.S. 442 (1912). See also Ashe v. Swenson, 397 U.S. 436 , [432 U.S. 137, 152] 453 n. 7 (1970) (BRENNAN, J., concurring). This exception may also apply when the facts necessary to the greater were not discovered despite the exercise of due diligence before the first trial. Ibid.
If the defendant expressly asks for separate trials on the greater and the lesser offenses, or, in connection with his opposition to trial together, fails to raise the issue that one offense might be a lesser included offense of the other, another exception to the Brown rule emerges. This situation is no different from others in which a defendant enjoys protection under the Double Jeopardy Clause, but for one reason or another retrial is not barred. Thus, for example, in the case of a retrial after a successful appeal from a conviction, the concept of continuing jeopardy on the offense for which the defendant was convicted applies, thereby making retrial on that offense permissible. See Price v. Georgia, 398 U.S. 323 (1970); Green v. United States, 355 U.S. 184 (1957); United States v. Ball, 163 U.S. 662 (1896). In a slightly different context, the defendant's right to have the need for a retrial measured by the strict "manifest necessity" standard of United States v. Perez, 9 Wheat. 579 (1824), does not exist if the mistrial was granted at the defendant's request. United States v. Dinitz, 424 U.S. 600 (1976). Both the trial after the appeal and the trial after the mistrial are, in a sense, a second prosecution for the same offense, but, in both situations, the policy behind the Double Jeopardy Clause does not require prohibition of the second trial. Similarly, although a defendant is normally entitled to have charges on a greater and a lesser offense resolved in one proceeding, there is no violation of the Double Jeopardy Clause when he elects to have the two offenses tried separately and persuades the trial court to honor his election. 20 [432 U.S. 137, 153]
C. In this case, trial together of the conspiracy and continuing-criminal-enterprise charges could have taken place without undue prejudice to petitioner's Sixth Amendment right to a fair trial. 21 If the two charges had been tried in one proceeding, it appears that petitioner would have been entitled to a lesser-included-offense instruction. See Fed. Rule Crim. Proc. 31 (c); Keeble v. United States, 412 U.S. 205 (1973); cf. Sansone v. United States, 380 U.S. 343, 349 -350 [432 U.S. 137, 154] (1965). If such an instruction had been denied on the ground that 846 was not a lesser included offense of 848, petitioner could have preserved his point by proper objection. Nevertheless, petitioner did not adopt that course. Instead, he was solely responsible for the successive prosecutions for the conspiracy offense and the continuing-criminal-enterprise offense. 22 Under the circumstances, we hold that his action deprived him of any right that he might have had against consecutive trials. It follows, therefore, that the Government was entitled to prosecute petitioner for the 848 offense, and the only issue remaining is that of cumulative punishments upon such prosecution and conviction.
Although both parties, throughout the proceedings, appear to have assumed that no cumulative-punishment problem is present in this case, 23 the imposition of the separate fines [432 U.S. 137, 155] seems squarely to contradict that assumption. 24 Fines, of course, are treated in the same way as prison sentences for purposes of double jeopardy and multiple-punishment analysis. See North Carolina v. Pearce, 395 U.S. 711, 718 n. 12 (1969). In this case, since petitioner received the maximum fine applicable to him under 848, it is necessary to decide whether cumulative punishments are permissible for violations of 846 and 848.
The critical inquiry is whether Congress intended to punish each statutory violation separately. See, e. g., Prince v. United States, 352 U.S. 322, 327 (1957); Callanan v. United States, 364 U.S. 587, 594 (1961); Milanovich v. United States, 365 U.S. 551, 554 (1961). Cf. Bell v. United States, 349 U.S. 81, 82 (1955). In Iannelli v. United States, the Court concluded that Congress did intend to punish violations of 1955 separately from 371 conspiracy violations. Since the two offenses were different, there was no need to go further. See 420 U.S., at 785 -786, nn. 17-18. See also Gore v. United States, 357 U.S. 386 (1958). If some possibility exists that the two statutory offenses are the "same offense" for double jeopardy purposes, however, it is necessary to examine the problem closely, in order to avoid constitutional multiple-punishment difficulties. See North Carolina v. Pearce, 395 U.S., at 717 ; United States v. Wilson, 420 U.S., at 343 . 25
As petitioner concedes, Reply Brief for Petitioner 3, the first issue to be considered is whether Congress intended to allow cumulative punishment for violations of 846 and 848. We have concluded that it did not, and this again makes it unnecessary to reach the lesser-included-offense issue. [432 U.S. 137, 156]
Section 848 itself reflects a comprehensive penalty structure that leaves little opportunity for pyramiding of penalties from other sections of the Comprehensive Drug Abuse Prevention and Control Act of 1970. Even for a first offender, the statute authorizes a maximum prison sentence of life, a fine of $100,000, and a forfeiture of all profits obtained in the enterprise and of any interest in, claim against, or property or contractual rights of any kind affording a source of influence over, the enterprise. 848 (a) (1), (2). The statute forbids suspension of the imposition or execution of any sentence imposed, the granting of probation, and eligibility for parole. 848 (c). In addition, 848 is the only section in the statutes controlling drug abuse that provides for a mandatory minimum sentence. For a first offender, that minimum is 10 years. 848 (a) (1). A second or subsequent offender must receive a minimum sentence of 20 years, and he is subject to a fine of up to $200,000, as well as the forfeiture described above and the maximum of lifetime imprisonment. Ibid. Since every 848 violation by definition also will involve a series of other felony violations of the Act, see 848 (b) (1), (2), there would have been no point in specifying maximum fines for the 848 violation if cumulative punishment was to be permitted.
The legislative history of 848 is inconclusive on the question of cumulative punishment. 26 The policy reasons usually offered to justify separate punishment of conspiracies and [432 U.S. 137, 157] underlying substantive offenses, however, are inapplicable to 846 and 848. In Callanan v. United States, 364 U.S., at 593 -594, the Court summarized these reasons:
As this discussion makes clear, the reason for separate penalties for conspiracies lies in the additional dangers posed by concerted activity. Section 848, however, already expressly prohibits this kind of conduct. Thus, there is little legislative need to further this admittedly important interest by authorizing consecutive penalties from the conspiracy statute.
Our conclusion that Congress did not intend to impose cumulative penalties under 846 and 848 is of minor significance in this particular case. Since the Government had the right to try petitioner on the 848 indictment, the court had the power to sentence him to whatever penalty was authorized by that statute. It had no power, however, to impose on him a fine greater than the maximum permitted by 848. Thus, if petitioner received a total of $125,000 in fines [432 U.S. 137, 158] on the two convictions, as the record indicates, he is entitled to have the fine imposed at the second trial reduced so that the two fines together do not exceed $100,000.
The judgment of the Court of Appeals, accordingly, is affirmed in part and vacated in part, and the case is remanded for further proceedings consistent with this opinion.
[ Footnote 2 ] Section 846 provides: "Any person who attempts or conspires to commit any offense defined in this subchapter [Control and Enforcement] is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy."
[ Footnote 3 ] Section 841 (a) (1) provides: "(a) . . . Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally - "(1) to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance." Heroin is classified as a Schedule I narcotic drug controlled substance. 21 U.S.C. 812(c) (Sch. I) (b)(10); 21 CFR 1308.11(c)(11) (1976). Cocaine is a Schedule II narcotic drug controlled substance. 21 U.S.C. 812(c) (Sch. II) (a)(4); 21 CFR 1308.12(b)(4) (1976).
[ Footnote 4 ] Section 848 provides, in relevant part: "(a) . . . (1) Any person who engages in a continuing criminal enterprise shall be sentenced to a term of imprisonment which may not be less than 10 years and which may be up to life imprisonment, to a fine of not more than $100,000, and to the forfeiture prescribed in paragraph (2) . . . . "(2) Any person who is convicted under paragraph (1) of engaging in a continuing criminal enterprise shall forfeit to the United States - "(A) the profits obtained by him in such enterprise, and "(B) any of his interest in, claim against, or property or contractual rights of any kind affording a source of influence over, such enterprise. "(b) . . . For purposes of subsection (a) of this section, a person is engaged in a continuing criminal enterprise if - "(1) he violates any provision of this subchapter or subchapter II of this chapter [Import and Export] the punishment for which is a felony, and "(2) such violation is a part of a continuing series of violations of this subchapter or subchapter II of this chapter - "(A) which are undertaken by such person in concert with five or more other persons with respect to whom such person occupies a position of organizer, a supervisory position, or any other position of management, and, "(B) from which such person obtains substantial income or resources. "(c) . . . In the case of any sentence imposed under this section, imposition or execution of such sentence shall not be suspended, probation shall not be granted, and section 4202 of Title 18 [repealed March 15, 1976, by Pub. L. 94-233, 90 Stat. 219, and replaced by a new 4205, each relating to eligibility of prisoners for parole] . . . shall not apply."
[ Footnote 5 ] The dissenters attempt to undercut the force of petitioner's opposition to trial together by asserting that the motion "gave relatively little emphasis to arguments relating to petitioner alone." Post, at 159 n. 4. On the contrary, the memorandum supporting the defendants' motion took pains to point out which objections to trial together were relevant to Jeffers alone. See App. 18, 22-23. Indeed, the last argument before the conclusion stated:
[ Footnote 6 ] As indicated in n. 2, supra, 846 provides that the sentence for the conspiracy offense shall not exceed the maximum punishment prescribed for the substantive offense the commission of which was the object of the conspiracy. The maximum punishment for a first offender for a violation of 841 (a) (1), in which a Schedule I or II narcotic drug is the controlled substance in question, is a term of imprisonment of not more than 15 years, a fine of not more than $25,000, or both. 841 (b) (1) (A).
[ Footnote 7 ] After this Court's refusal to review the decision on certiorari, petitioner filed a motion under 28 U.S.C. 2255 for post conviction relief. The District Court denied the motion, the Court of Appeals affirmed, 544 F.2d 523, and this Court again denied certiorari. 430 U.S. 935 (1977).
[ Footnote 8 ] In his opposition to the Government's motion for trial together, however, when he joined the argument that the jury would be confused by consolidation, petitioner apparently had argued in favor of construing the statutes to create separate offenses. App. 19. He also joined the argument that "identity of charges" was lacking. Id., at 15.
[ Footnote 9 ] Language in the Government's memorandum appears to concede that 846 is a lesser included offense: "Title 21, United States Code, Section 848, requires proof of the elements previously set out in Section 846 but additional elements are required." App. 34. It is unnecessary for present purposes to rely on any such concession.
[ Footnote 10 ] Nothing in the record of Case No. H-CR-74-56 suggests that the $25,000 fine was credited against the $100,000 fine. The record of Case No. H-CR-74-57 expressly indicates that the contrary was true, and we proceed on that assumption.
[ Footnote 11 ] The District Court actually instructed the jury that the Government might prove that the object of the continuing criminal enterprise was to commit a violation under 846, the conspiracy statute, rather than to violate 841 (a) (1). App. 45. The court therefore gave a complete conspiracy charge to the jury. Id., at 46-48. The Government argues that this instruction was erroneous. Without resolving that issue or exploring the implications of the Government's position, we merely note that the District Court's decision to give the instruction reflects the conceptual closeness of the two statutes.
[ Footnote 12 ] Section 848 by its terms covers violations of both subchapter I of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and [432 U.S. 137, 146] subchapter II of the Act, while 846 deals only with subchapter I. The exact counterpart to 846, however, is 963 in subchapter II. In this case, no one disputes the fact that only subchapter I is involved.
[ Footnote 13 ] The Court's use of the term "concerted activity" to describe 1955's requirement that five or more persons must be involved in the gambling business, 420 U.S., at 790 , does not indicate a contrary understanding. At that point in the opinion the Court simply was addressing its attention to the reason why 1955 requires the participation of a significant number of persons in the business. As a practical matter, the group involved often will act in concert. This, however, is not necessarily the case - a fact the Court acknowledged in its Blockburger analysis, 420 U.S., at 785 n. 17.
[ Footnote 14 ] The legislative history, the use that Congress has made of the phrase "in concert" in other statutes, and the plain meaning of that term all support the interpretation suggested for 848. The House Report on H. R. 18583, which eventually became Pub. L. 91-513, the Comprehensive Drug Abuse Prevention and Control Act of 1970, assumed that the meaning of "in concert" was clear, since it never defined the phrase further. See, e. g., H. R. Rep. No. 91-1444, Pt. 1, p. 50 (1970). Even the writers of additional views did not include an objection to the nondefinition of the term in their criticisms of other aspects of the continuing-criminal-enterprise section of the law. The Senate Report on S. 3246, the Senate version of the same law, did shed some light on the problem. See S. Rep. No. 91-613 (1969). In the Section-by-Section Analysis of the bill, the report states:
The debates reveal that Congress was concerned with providing severe penalties for professional criminals when it included the continuing-criminal-enterprise section in the statute. See, e. g., 116 Cong. Rec. 995 (1970) (remarks of Sen. Dodd); id., at 1181 (remarks of Sen. Thurmond); id., at 33631 (remarks of Cong. Weicker); id., at 33314 (remarks of Cong. Bush). This concern undercuts the Government's argument that one professional criminal might have "conned" five innocent dupes into working for him, all of them being unaware that the purpose of the work was to conduct an illegal drug business, and none agreeing to do so.
When the phrase "in concert" has been used in other statutes, it has generally connoted cooperative action and agreement. See, e. g., 2 U.S.C. 434 (b) (13), 441a (a) (7) (B) (i) (1976 ed.) (Federal Election Campaign Act Amendments of 1976); 7 U.S.C. 13c (a) (1970 ed., Supp. V) (Commodity Futures Trading Commission Act of 1974 - liability as principal); 10 U.S.C. 894 (a) (Code of Military Justice - mutiny or sedition); 29 U.S.C. 52, 104, 105 (Norris-LaGuardia Act); 46 U.S.C. 1227 (Merchant Marine Act - agreements with other carriers forbidden); 49 U.S.C. 322 (b) (1) (Interstate Commerce Act, Part II - unlawful operation of motor carriers). This suggests that Congress intended the same words to have the same meaning in 848. Even Iannelli did not require the word "conspiracy" to be spelled out in the statutory definition, as long as the concept of agreement was included therein. 420 U.S., at 785 n. 17. Since the word "concert" commonly signifies agreement of two or more persons in a common plan or enterprise, a clearly articulated statement from Congress to the contrary would be necessary before that meaning should be abandoned.
[ Footnote 15 ] In connection with this assumption, we note that until the Court of Appeals in this case found that 846 was a lesser included offense of 848, no other appellate court had considered the issue. Indeed, after Iannelli it would have been fair to assume that the question was open. The dissenting opinion here is based on the premise that it was beyond dispute that 846 and 848 were so related. From there, it is easy to reason that the prosecutor should be held accountable for the presumed error that occurred. Because the premise fails, however, this case cannot be fit so neatly into the niche that would be fashioned by the dissent. Unless it is plain that two offenses are "the same" for double jeopardy purposes, the parties and the court should be entitled to assume that successive prosecutions are an available option. This assumption would only be reinforced if the defendant affirmatively asked the court to require two proceedings, and in connection with his request he actively sought postponement of the second trial, as Jeffers did. Under the circumstances, it is hardly accurate to say, as the dissent does, that Jeffers was being required to give legal advice to the prosecution. On the contrary, he was simply under an obligation to preserve his double jeopardy point properly, by alerting both court and prosecution to the existence of a complex, unsettled issue.
[ Footnote 16 ] The two indictments in this case are remarkably similar in detail. It is clear that the identical agreement and transactions over the identical time period were involved in the two cases. It is also quite clear that none of the participants were "innocent dupes."
[ Footnote 17 ] It is also possible to argue that a second trial on a greater offense is prohibited by the Double Jeopardy Clause because the defendant is necessarily placed twice in jeopardy on the lesser offense. The risk of conviction on the greater means nothing more than a risk of conviction upon proof of all the elements of the lesser plus proof of the additional elements needed for the greater. Brown v. Ohio, post, at 167 n. 6, leaves consideration of the implications of this theory for another day.
[ Footnote 18 ] Any adjustment in punishment for the fact that the defendant already has been punished for the lesser offense is not adequate to cure the injury suffered because of multiple prosecutions, since the double jeopardy problem inheres in the very fact of a second trial for the "same" offense. See Blackledge v. Perry, 417 U.S. 21, 30 -31 (1974); Price v. Georgia, 398 U.S. 323, 329 (1970).
[ Footnote 19 ] The Government makes no attempt to defend the Court of Appeals' reading of Iannelli; indeed, it states that that court misconstrued Iannelli. Brief for United States 22 n. 10.
[ Footnote 20 ] The considerations relating to the propriety of a second trial obviously would be much different if any action by the Government contributed to the separate prosecutions on the lesser and greater charges. No hint [432 U.S. 137, 153] of that is present in the case before us, since the Government affirmatively sought trial on the two indictments together.
Unlike the dissenters, we are unwilling to attach any significance to the fact that the grand jury elected to return two indictments against petitioner for the two statutory offenses. As the Court of Appeals' opinion made clear, before this case it was by no means settled law that 846 was a lesser included offense of 848. See 532 F.2d, at 1106-1111. See also Brief for United States 18-32; n. 15, supra. Even now, it has not been necessary to settle that issue definitively. See supra, at 149-150. If the position reasonably could have been taken that the two statutes described different offenses, it is difficult to ascribe any improper motive to the act of requesting two separate indictments. Furthermore, as noted supra, at 142, it was the Government itself that requested a joint trial on the two indictments, which also indicates that no sinister purpose was behind the formal method of proceeding.
[ Footnote 21 ] Petitioner argues that a finding of waiver is inconsistent with the decision in Simmons v. United States, 390 U.S. 377, 389 -394 (1968), where the Court held that a defendant could not be required to surrender his Fifth Amendment privilege against compulsory self-incrimination in order to assert an arguably valid Fourth Amendment claim. In petitioner's case, however, the alleged Hobson's choice between asserting the Sixth Amendment fair trial right and asserting the Fifth Amendment double jeopardy claim is illusory. Had petitioner asked for a Rule 14 severance from the other defendants, the case might be different. In that event, he would have given the court an opportunity to ensure that prejudicial evidence relating only to other defendants would not have been introduced in his trial. Assuming that a valid Fifth Amendment point was in the background, due to the relationship between 846 and 848, petitioner could have had no complaint about a trial of the two charges together. No such motion, however, was made. Under the circumstances of this case, therefore, no dilemma akin to that in Simmons arose.
[ Footnote 22 ] Petitioner's position is not strengthened merely because no one raised the multiple-prosecution point during the first proceeding. Since the Government's posture throughout this case has been that 846 and 848 are separate offenses, it could not have been expected on its own to elect between them when its motion for trial together was denied. The right to have both charges resolved in one proceeding, if it exists, was petitioner's; it was therefore his responsibility to bring the issue to the District Court's attention.
[ Footnote 23 ] Brief for Petitioner 21; Brief for United States 9. See, however, the Government's statement, Tr. of Oral Arg. 36: "[W]e submit, the Double Jeopardy Clause does not bar prosecution for the greater offense, provided, of course, that there was a conviction on the lesser included offense and provided that any punishment that he has suffered on the lesser offense be credited." Different considerations govern the propriety of addressing the cumulative-punishment issue, since petitioner, for obvious reasons, never affirmatively argued that the difference in the two statutes was so great as to authorize separate punishments, and he did argue implicitly that separate trials would be permissible. Even if the two indictments had been tried together, the cumulative-punishment issue would remain.
[ Footnote 24 ] For present purposes, since petitioner is not eligible for parole at any time, there is no need to examine the Government's argument that the prison sentences do not present any possibility of cumulative punishment.
[ Footnote 25 ] Cf. United States v. Gaddis, 424 U.S. 544, 549 n. 12 (1976) (vacating convictions and sentences under 18 U.S.C. 2113 (a) in light of conviction under 2113 (d)).
[ Footnote 26 ] The Congress was plainly interested in punishing the professional criminal severely when it passed 848. See, e. g., S. Rep. No. 91-613, pp. 2, 7 (1969); 116 Cong. Rec. 995, 1181, 1664 (1970) (remarks in Senate debate); id., at 33300-33301, 33304, 33314 (remarks in House debate). Taken alone, this might support an argument for cumulative penalties. The House Report, however, indicates that the penalty scheme of the continuing-criminal-enterprise section was to be separate from the rest of the penalties. H. R. Rep. No. 91-1444, pt. 1, pp. 10-11 (1970). In light of these arguably conflicting conclusions from the legislative history, we see no reason to deviate from the result suggested by the structure of the statute itself.
MR. JUSTICE WHITE, concurring in the judgment in part and dissenting in part.
Because I agree with the United States that Iannelli v. United States, 420 U.S. 770 (1975), controls this case, I for that reason concur in the judgment of the Court with respect to petitioner's conviction. For the same reason and because the conspiracy proved was not used to establish the continuing criminal enterprise charged, I dissent from the Court's judgment with respect to the fines and from Part III of the plurality's opinion.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join, dissenting in part, and concurring in the judgment in part.
There is nothing novel about the rule that a defendant may not be tried for a greater offense after conviction of a lesser included offense. It can be traced back to Blackstone, and "has been this Court's understanding of the Double Jeopardy Clause at least since In re Nielsen[, 131 U.S. 176 ,] was decided in 1889," Brown v. Ohio, post, at 168. 1 I would not permit the prosecutor to claim ignorance of this ancient rule, or to evade it by arguing that the defendant failed to advise him of its existence or its applicability. [432 U.S. 137, 159]
The defendant surely cannot be held responsible for the fact that two separate indictments were returned, 2 or for the fact that other defendants were named in the earlier indictment, or for the fact that the Government elected to proceed to trial first on the lesser charge. 3 The other defendants had valid objections to the Government's motion to consolidate the two cases for trial. 4 Most trial lawyers will be startled to learn that a rather routine joint opposition to that motion to consolidate has resulted in the loss 5 of what this Court used to regard as "a vital safeguard in our society, one that [432 U.S. 137, 160] was dearly won and one that should continue to be highly valued," Green v. United States, 355 U.S. 184, 198 . 6 See United States v. Alford, 516 F.2d 941, 945 n. 1 (CA5 1975).
It is ironic that, while the State's duty to give advice to an accused is contracting, see, e. g., Oregon v. Mathiason, 429 U.S. 492 , a new requirement is emerging that the accused, in order to preserve a constitutional right, must inform the prosecution about the legal consequences of its acts. Even the desirability of extending Mr. Jeffers' incarceration does not justify this unique decision. 7
While I concur in the judgment to the extent that it vacates the cumulative fines, I respectfully dissent from the affirmance of the conviction.
[ Footnote 1 ] As the Court notes in Brown, Nielsen cites an 1833 New Jersey case; that case in turn quotes Blackstone. State v. Cooper, 13 N. J. L. 361, 375. See 4 W. Blackstone, Commentaries *336.
[ Footnote 2 ] The plurality implies that the result in this case would be different "if any action by the Government contributed to the separate prosecutions on the lesser and greater charges." Ante, at 152 n. 20. I wonder how the grand jury happened to return two separate indictments.
[ Footnote 3 ] The Government retained the alternative of trying petitioner on both charges at once, while trying the other defendants separately for conspiracy. The prosecutor never attempted this course, and defense counsel - not having had an opportunity to read today's plurality opinion - had no reason to believe he had a duty to suggest it. Until today it has never been the function of the defense to give legal advice to the prosecutor.
[ Footnote 4 ] When the Government attempted to obtain a joint trial on all the charges against all the defendants, the attorney representing all the defendants resisted the Government motion. He did so largely because of the possible prejudice to petitioner's codefendants, and gave relatively little emphasis to arguments relating to petitioner alone. See ante, at 142-143, n. 5.
[ Footnote 5 ] It is quite clear from the plurality opinion that petitioner has been denied his constitutional rights. As that opinion states, it is "the general rule that the Double Jeopardy Clause prohibits a State or the Federal Government from trying a defendant for a greater offense after it has convicted him of a lesser included offense." Ante, at 150. And, as the plurality also demonstrates, that is precisely what happened here. Ante, at 147-150. Two additional facts, also noted by the plurality, clinch the double jeopardy claim: (1) petitioner was not only twice tried, but also twice punished for the same offense, ante, at 154-158; and (2) the instructions at the second trial required petitioner to defend against the lesser charge for a second time, ante, at 145 n. 11.
[ Footnote 6 ] The following sentence by Mr. Justice Black is also worth remembering: "If such great constitutional protections are given a narrow, grudging application, they are deprived of much of their significance." Green, 355 U.S., at 198 .
[ Footnote 7 ] The Court's disposition is especially troubling because eight Justices agree that petitioner's constitutional right was violated and only four are persuaded that he waived his double jeopardy objection. [432 U.S. 137, 161]
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Citation: 432 U.S. 137
Docket No: No. 75-1805
Argued: March 21, 1977
Decided: June 16, 1977
Court: United States Supreme Court
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Why are some companies hated? The answer often depends on who is asking. Corporations can anger their customers, fail their shareholders, and mistreat their employees. 24/7 Wall St. analyzed each of these angles to pick the 10 most hated companies in America.
Click here to see the most hated companies in America
Nothing harms the long-term reputation of a company on Wall St. more than a steep, and often unexpected drop in its share value, particularly one that offers almost no chance of recovery. The stock prices of several companies on this list lost most of their value as they posted high double digits declines. In all of these cases this means a loss of billions of dollars in market capitalization.
This has certainly happened at Nokia Corp. (NYSE: NOK), which has been swamped by competition from Apple Inc. (NASDAQ: AAPL) and Samsung. It also happened at Hewlett-Packard Co. (NYSE: HPQ), which has been losing money for several quarters and continues to give up market share in the PC industry where it held the No.1 spot globally until recently.
Many of the most hated companies have millions of customers and tens of thousands of workers. With this kind of reach, keeping employees happy is crucial to more than just good office morale. Poor job satisfaction regularly results in low customer satisfaction.
One way to ensure low worker morale is by mass layoffs, which many of the companies on this list also have in common. American Airlines is one example. The airline, which has laid off many employees, has very unhappy workers, according to company and employee rating site Glassdoor. The bankrupt airline was also rated by airline consumer interests website Airfarewatchdog.com as having the rudest workers in the industry.
Many of the most hated companies botched product or service launches. Failures include the new layout and pricing of J.C. Penney Co. Inc. (NYSE: JCP) stores and the series of failed product releases by Nokia. As many of the problems at these companies are dependent, such failures hurt revenue, which in turn force management to cut costs — often by way of layoffs.
Several organizations might have made this list, but have had too many good things go their way in recent months. This includes Netflix Inc. (NASDAQ: NFLX), which made our list last year. Several bad decisions that hurt the company's public relations in 2011, such as the increase in streaming fees, are well in the past. After a sharp drop in 2011, shares are finally recovering and are up more than 30% in the past three months.
It is worth noting that some of the companies on the list may have done very poorly by some measures but well by others. A few of the most hated companies have had good stock performances. Others may have satisfied customers. All of this was taken into account when the decisions for the final list were made.
Also Read: America's Best (and Worst) Online Retailers
24/7 Wall St. editors reviewed a variety of metrics measuring customer satisfaction, stock performance, and employee satisfaction. This included total return to shareholders compared to the broader market and other companies in the same sector in the last year. We considered customer data from a number of sources, including Consumer Reports, the MSN Money/Zogby customer satisfaction poll, ForeSee's Holiday E-Retail Satisfaction Index, and the University of Michigan's American Customer Satisfaction Index. We also included employee satisfaction based on worker opinion scores recorded by Glassdoor. Finally, we considered management decisions made in the past year that hurt company image and brand value from marketing research firms BrandZ and Interbrand.
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This is where we publish our boat related stories and articles, which range from world circumnavigation to rescue missions, humour and much, much more. So make yourself a coffee and settle yourself down to a good read.
It's 'adeus' to the Azores, fishy tales and the one that got away!Monday, 10 June 2019
JUNE 10th – 700 miles to go – and we're back onboard Supertaff again with Neil Chapman, Curt Mundy and Curt's niece Shea as we embark on the next European leg of the Atlantic Rally Challenge.
Sailing through three centuries – and now for sale!Thursday, 06 June 2019
Indulge yourself – for a moment or much longer – as you take the helm of this vintage racing cruiser.
Why sailing is good for the Boatshed businessTuesday, 04 June 2019
If you've been following our news stories and blogs over the past few months, you'll be aware that Boatshed founder Neil Chapman has been sailing the 41' Supertaff more than usual just lately. And not without good cause!
Let's share a 'high five' with Wendy for another great year!Tuesday, 04 June 2019
For someone who grew up about as far away from the sea as you can get in England, it may seem strange that Wendy Barker found her calling in the marine industry.
Supertaff challenges record on the Atlantic Rally ChallengeTuesday, 28 May 2019
May 28th – after 13 days at sea since leaving Bermuda, the 3-hour watch routine, dwindling supplies of fresh food and battering winds are testing everyone's resolve. But spirits remain high with the Azores just beyond the horizon.
Dolphins, more dolphins and a close shave on the Atlantic Rally ChallengeTuesday, 28 May 2019
May 27 – and undeterred by the rogue wave that swamped the cockpit a couple of days ago, the team continue to make headway aboard Supertaff en route to The Azores...but always expecting the unexpected!
Weathering the waves with Supertaff on the Atlantic Rally ChallengeSunday, 26 May 2019
Eight days under sail – and the balmy waters of Bermuda could not be more different from the now changeable conditions in mid-Atlantic.
Contessa shows off her jewels on the Isle of Wight with BoatshedThursday, 23 May 2019
True to its commitment to sell more boats faster than traditional yacht brokers, Boatshed has just completed the sale of a Contessa 32 through its Isle of Wight brokerage office – inside 12 days.
Neil Chapman starts the two handed ARC across the Atlantic to St LuciaTuesday, 27 November 2018
Neil Chapman Co Founder and CEO of Boatshed.com is doing the double-handed ARC crossing from Las Palmas to St Lucia 2018 with Curt Mundy from Boatshed Ireland.
Earn 40% of our commission, join us with Boatshed ModularMonday, 15 October 2018
Boatshed, the world's largest yacht brokerage, announces a new program — Modular Brokerage. This innovation creates a unique opportunity for those already in the marine industry and entrepreneurs to take on a share of brokerage commission on ...
Why Register with Boatshed?Wednesday, 10 October 2018
We are always told that Boatshed's website and online platform for the sale of boats is 'the best in the industry', but our technical engineers are always trying to improve it. We have added new features to our website and boat search system to ma...
Boatshed Texas PartnerWednesday, 14 March 2018
Steve Black Boatshed Texas: "My 16' Old Town Canoe with a Lean Green Lehr
propane gas outboard motor, perfect for Boatshed Texas media crew to go shoot photos & video of prospective listings (my favourite part of the business ;...
Helping with the cost of boat ownershipWednesday, 14 March 2018
Another thing we are committed to at Boatshed is reducing the costs of boat ownership for our customers. Boat buyers will, typically, spend about 20% of the price of a boat on necessary equipment, products and services within the first 12 months ...
List of boating and sailing events for 2018Monday, 12 March 2018
We could not find a good list of 2018 Boatshows, Regattas and Events, so we have built one for everyone to use. It is a work in progress! so if you know of any boating events that are not featured here, then please contact us and we would love to ...
LIVE ON A BOAT?Thursday, 08 March 2018
Boatshed have already sold hundreds of house boats in the UK and France. This month the Boatshed Data-Feed technology has been plugged into Rightmove.co.uk so we can find folks looking for a boat as an alternative to a house.
Boatshed's Specialist WebsitesTuesday, 06 March 2018
As one of the largest international yacht brokers in the world, Boatshed is well known for selling just about any and all types of boats: sail or motor; compact or super-sized; budget or expensive; inland or ocean going, since 2001 we have dea...
Golden Globe RaceFriday, 16 February 2018
9 Months Alone At Sea, 30,000 Miles Non-Stop, No Modern Technology, Southern Ocean!
December BoatBid - Preview Catalogue LiveWednesday, 08 November 2017
December BoatBid Catalogue
Ultimate Boat Porn with Boatshed ArchiveThursday, 05 October 2017
Boatshed are launching a beta version of the Boatshed Archive, essentially a back catalogue of the 24,000+ boats we've been involved in selling. This is a great resource for people looking for boats, with each boat containing up to 100 photos, f...
Boatshed chosen to showcase at the world's largest technology show - WEB SUMMITThursday, 05 October 2017
November 2017 sees the Boatshed technology team travel to Lisbon for 5 days at Web Summit Exhibition. Boatshed have been invited to feature their leading boat sales technology platform alongside the likes of Facebook Uber and Amazon. Chosen out o...


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11 Tinder Horror Stories That Will Make You Cringe
These Hilarious Tinder Horror Stories Will Make You Glad You're Not Getting More Matches
Tinder revolutionized dating, there's no argument about that. But for all the benefits (the options, the simplicity, the potential to meet strangers you'd never have met in real life), it also has some drawbacks. Namely, sometimes you end up talking to strangers that you'd never have spoken to in real life. And sometimes, those people turn out to be bad, bad news.
The good people of Reddit came together recently to share their horror stories of what happens when Tinder goes bad. And some of these... yikes. From the guy being haunted by his soulmate father-in-law to the girl being haunted by an overly enthusiastic iPhone charger owner, there's a lot to laugh and cringe at here, ofter at the same time.
The Car That Went Missing
The Asshole Dad
The Sausage Party Birthday
The Worst One
The Chef's Special Sauce
Nope Nope Nope Nope
The Incredibly Confusing One
The Honeymooner
The iPhone Charger Stalker
The Dinner For Schmucks
RELATED READING: The 39 Awesomest Tinder Wins Of 2015


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Skullcandy MFM Pro headphones with integrated Mirasol PMP
Skullcandy has unveiled a set of combination headphones and PMP player, which is the first such device to include Qualcomm's innovative mirasol display technology. The Skullcandy MFM Pro headphones have a slot-in PMP that can both be used with the over-the-ear headphones as well as any other sort of earbuds courtesy of the standard 3.5mm audio socket. mirasol, meanwhile, uses the same concept that makes a butterfly's wings iridescent to create a color display with dramatically lowered power consumption.
mirasol uses tiny flexible membranes that react to electrical charges, overlaid onto a mirrored surface; light reflected back out through those membranes is refracted so that interfering wavelengths create colors. Because the membranes used are bistable, once they have been set to display a certain color they require virtually no power to maintain it, only to change. The system also needs no color filters, no strong backlighting to be visible in direct sunlight and no polarizing lenses.
The end result is far greater battery life and, in the case of the Skullcandy headphones, a display that can be seen clearly even when taking part in extreme sports such as snowboarding. In fact, the mirasol display only gets brighter when subjected to direct sunlight.
Audio quality of the prototype we tried at CTIA was very good, and while the show floor made it difficult to make an especially accurate judgement, we expect the final product to bring some strong competition to prosumer headphones such as the Beats by Dr. Dre and Monster. Pricing and PMP capacity is yet to be decided, as is exact availability.


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Marfa Art Controversy
Ads or art? Prada joins Playboy on TxDOT's hit list in West Texas desert
First Playboy, now Prada. The Texas Department of Transportation has labeled a Prada storefront art installation in the Chihuahuan Desert, 35 miles northwest of Marfa, as "illegal outdoor advertising."
The Prada store, created by Scandinavian artists Michael Elmgreen and Ingar Dragset, has drawn thousands of tourists since opening in 2005 on land along Highway 90. (Beyoncé posted a photo of herself in front of the installation on Tumblr last summer.) But TxDot says it's in violation of the 1965 Highway Beautification Act and could be forcefully removed.
"If it really is against the regulations, they should have found out in 2005 when it was erected," said Prada Marfa co-creator Michael Elmgreen.
The department has not decided what action it will take.
The $80,000 project — which was not funded by Prada but by New York nonprofits Art Production Fund in collaboration with Ballroom Marfa — consists of a 15-by-25-foot adobe "store" featuring six bolted-down handbags and 20 shoes (the right shoe only, to discourage theft) from Prada's 2005 fall/winter collection. It is never open, and the items are not for sale. The artists intend for the building to degrade over time.
"It was meant as a critique of the luxury goods industry, to put a shop in the middle of the desert," Elmgreen told the New York Times. "If it really is against the regulations, they should have found out in 2005 when it was erected."
The legitimacy of the Prada installation was questioned only after TxDot determined in July that a 40-foot neon Playboy bunny sign erected next to an elevated 1972 Dodge Charger, on the same highway just a mile outside of Marfa, was an illegal outdoor advertisement. Titled Playboy Marfa, the installation was designed by artist Richard Phillips for Playboy.


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An inexpensive way to prevent unscheduled downtime or data loss due to power problems is with a UPS or Uninterruptible Power Supply. However, a UPS by itself is not enough for proper operation. Hardware, software, and configuration together make up a UPS system that will recover from unexpected power loss or power fluctuations that can damage systems and peripherals.
When considering data loss, system downtime and disaster recovery, backup methods are primarily discussed. There are many methods of preventing data loss, including clustering, backup, security and power conditioning. Proper power can prevent an initial disaster from ever occurring. Providing proper power can be in the form of an Uninterruptible Power Supply or UPS. A UPS has rechargeable batteries to supply emergency power in the event of immediate power loss. If the power loss is longer than the batteries can supply, then the UPS can signal the server to initiate a power down sequence to properly shutdown, preventing data loss. When power is returned the server can return to operation after having made a clean shutdown.
Other power related problems that occur can be minimized with the circuitry of a UPS. Voltage sags and spikes, brown outs and line noise (from other machinery like elevators, air conditioners or office equipment), can all be isolated by a UPS. These power related fluctuations can wreak havoc on systems and devices. For a relatively low cost a UPS can prevent downtime due to power anomalies.
Network UPS Tools
The Network UPS Tools (NUT) [1] are a group of tools that are used to monitor and administer UPS hardware. NUT uses a layered scheme of equipment, drivers, server and clients. The equipment consists of the monitored UPS hardware. Drivers specific to the UPS hardware communicate or poll the UPS for status information in the form of variables. The driver programs talk directly to the UPS equipment and run on the same host as the server. The server
upsd serves data from the drivers to the network. Clients talk to the
upsd server and initiate tasks with the status data.
As indicated by the name, Network UPS Tools, NUT is a network based UPS system that works with multiple UPSs and systems. One of the many features of NUT allows multiple systems to monitor a single UPS, not requiring special UPS sharing hardware connections. The master/slave relationship synchronizes shut-downs so the slaves can initiate power-down sequences before the master switches off UPS power.
This article details the installation and configuration of a single system with a UPS connected to the serial port of the system. This is the natural first step of getting NUT installed and configured. If the UPS will supply more than one system, the second and subsequent systems can be configured as slaves.
The NUT developers also have a different take on when the systems should be powered down. NUT will wait until the UPS is "on battery" and "low battery" before it considers the UPS "critical". This philosophy gets the most out of the UPS batteries and will wait until the critical moment to initiate a power down sequence, just in case the power comes back on line. There is an option to override this behavior if desired with
upssched, which can be found in the documentation. With the
upssched utility, commands can be invoked based on UPS events.
In typical GNU/Linux fashion, NUT is not the only tool available for monitoring a UPS. Apcupsd [2] is used for power management and control of APC model UPSs. There are also several graphical frontends for workstation class machines.
Preparing for installation
Prior to installing and using a UPS and its associated software, a few things must be in place. Since the system is going to be shutdown there must be a way to bring the system back up when power returns. The system BIOS needs to be configured correctly. Most modern BIOSes have an option to power-on when main power, now supplied by the UPS, is returned. Server system BIOSes will most likely support the "power on when power returns" option. If the BIOS does not support this option (more common with workstation class systems), a BIOS update may correct it. With servers configured headless, without a monitor or keyboard, there are also settings to ignore keyboard errors. Commonly these types of systems are administered via SSH or administration utilities like Webmin [3].
The UPS must also have the correct signal cable from the UPS to the system. With a USB type of UPS this is not a concern. A UPS that communicates via the serial port needs the correct signal cable that supports intelligent signaling between the UPS and system. See the UPS vendor for the correct cable or a custom cable can be built with information from the Network UPS Tools web site.
Installing NUT
The example system is running a basic install of Debian GNU/Linux V4.0 [4] and utilizing an APC SmartUPS 700. Debian is an excellent, long term supported GNU/Linux, which is ideal for small enterprise deployments, as well as much larger environments. Different GNU/Linux distributions may install the software and configuration files in different directories. Since the server is configured without a GUI interface, all commands and configuration are done through the command line as the
root user. Using the APT package tool,
apt-get, the package
nut can easily be installed:
# apt-get install nut
The package tool installs the NUT software, documentation, man pages and example configuration files. Debian specific documentation is found in the
/usr/share/doc/nut/ directory. Extensive NUT documentation can be found in
/usr/share/doc/nut/docs/ and the example configuration files in
/usr/share/doc/nut/examples/. Some of the documentation is compressed with
gzip which can be uncompressed or viewed with the
zcat utility.
# zcat /usr/share/doc/nut/README.Debian.gz | less
The configuration files exist in the
/etc/nut/ directory. The
ups.conf configuration file contains the UPS definitions. The UPS is defined with the
[labsvr] entry. The
driver and
port fields must be defined, the
desc field is optional and describes the UPS. Additional UPS definitions can be configured in this file; however, this example is a single UPS and server configuration.
driver = apcsmart
port = /dev/ttyS0
desc = "Lab Server"
The definition, between the square brackets, is user definable, with the exception of word
default, since it is used by the Network UPS Tools. The correct driver name for your UPS can be found in the file
/usr/share/nut/driver.list. For proper permissions to use the serial port the
nut user must be added to the "dialout" group, and can be accomplished with the
addgroup command. To manually test the configuration and to verify the configuration is correct the
upsdrvctl (UPS driver controller) command is used. After verification the driver can be stopped.
# addgroup nut dialout
Adding user `nut' to group `dialout' ...
# /sbin/upsdrvctl start labsvr
Network UPS Tools - UPS driver controller 2.0.4
Network UPS Tools (version 2.0.4) - APC Smart protocol driver
Driver version 1.99.8, command table version 2.0
Detected SMART-UPS 700 [QS0331213446] on /dev/ttyS0
# /sbin/upsdrvctl stop labsvr
Network UPS Tools - UPS driver controller 2.0.4
Stopping UPS: labsvr
Since this example is a single server, the access control list for server communication is minimal. Configuring the access control lists is accomplished in the configuration file
upsd.conf. The ACL (access control list)
all is defined with the netblock in CIDR format, the old style
address/network format can also be used. Additionally the ACL
localhost is defined. The
ACCEPT field allows communication to the server for
localhost and the
REJECT field blocks all other access. Similar to other access control lists, flow goes from the top down. The
ACCEPT is evaluated before the
REJECT, if the
REJECT line were before
localhost would meet the rule and not be allowed access.
ACL all 0.0.0.0/0
ACL localhost 127.0.0.1/32
ACCEPT localhost
REJECT all
upsd.users configuration file is used to define users that have access to administrative commands. Here are defined the users and what access each user is allowed; each section begins with user names in brackets and continues to the next bracketed user or end of the file. The
password field defines the user's password. The
allowfrom field grants access based on the user's source IP address, the values are defined in the ACL lists configuration file
upsd.conf. The
upsmon field is set to either
master or
slave to allow the upsmon process to work.
password = p455w0rd
allowfrom = localhost
upsmon = master
The final configuration file
upsmon.conf defines which systems the
upsmon process will monitor, as well as how to shutdown systems when necessary. The
MONITOR line defines the UPS to monitor. The first field is the UPS to monitor, in this case
labsvr@localhost. The second field is the power value that defines the number of power supplies the UPS supplies. In simple configurations this is normally set to
1. The next two fields are the user name and password that were previously defined in
upsd.users. The last field will be either
master or
slave process. A
master process is one in which the process is running on the system that is plugged in directly and communicates with the UPS. A
slave is a process that gets power from the UPS but doesn't communicate directly to it.
MONITOR labsvr@localhost 1 monmaster p455w0rd master
POWERDOWNFLAG /etc/killpower
SHUTDOWNCMD "/sbin/shutdown -h +0"
POWERDOWNFLAG defines a file name to be created in master mode when the UPS needs to be powered off. This file is cleared when the system comes back up. Finally,
SHUTDOWNCMD is the actual shutdown command performed enclosed in quotes.
After the configuration of the UPS and Network UPS Tools is complete, a couple of housekeeping tasks need to be accomplished. Since several of the configuration files contain user names and passwords, they will have permissions set so only the
root user and
nut group can read them with the following commands:
# chown root:nut /etc/nut/*
# chmod 640 /etc/nut/*
With Debian GNU/Linux, two items must also be changed in the file
START_UPSD and
START_UPSMON are changed from "no" to "yes".
nut init.d script can be run to start the UPS monitor tools and
/var/log/syslog is checked to verify everything is running correctly.
# /etc/init.d/nut start
Starting Network UPS Tools: upsdrvctl upsd upsmon.
# tail /var/log/syslog
Sep 01 13:36:48 labserver apcsmart[2519]: Startup successful
Sep 01 13:36:48 labserver upsd[2520]: Connected to UPS [labsvr]: apcsmart-ttyS0
Sep 01 13:36:50 labserver upsd[2521]: Startup successful
Sep 01 13:36:50 labserver upsmon[2523]: Startup successful
Sep 01 13:36:50 labserver upsd[2521]: Connection from 127.0.0.1
Sep 01 13:36:50 labserver upsd[2521]: Client email@example.com logged into UPS [labsvr]
To quickly poll the status of a UPS server, the
upsc UPS client utility is used. The first example displays the value of the
ups.status variable, which is
OL (or "on line"), meaning the UPS
labsvr@localhost is on line power. If the value of
ups.status were
OB ("on battery"), then the UPS would be supplying battery power to the server. The second invocation displays all available variables and the values for
# upsc labsvr@localhost ups.status
# upsc labsvr@localhost
battery.alarm.threshold: 0
battery.charge: 100.0
battery.charge.restart: 00
battery.date: 08/02/03
battery.packs: 000
battery.runtime: 7860
battery.runtime.low: 120
battery.voltage: 27.60
battery.voltage.nominal: 024
driver.name: apcsmart
driver.parameter.port: /dev/ttyS0
driver.version: 2.0.4
driver.version.internal: 1.99.8
input.frequency: 60.00
input.quality: FF
input.sensitivity: H
input.transfer.high: 132
input.transfer.low: 103
input.transfer.reason: S
input.voltage: 120.2
input.voltage.maximum: 121.5
input.voltage.minimum: 119.6
output.voltage: 120.2
output.voltage.target.battery: 115
ups.delay.shutdown: 180
ups.delay.start: 000
ups.firmware: 50.14.D
ups.id: UPS_IDEN
ups.load: 008.3
ups.mfr: APC
ups.mfr.date: 08/02/03
ups.model: SMART-UPS 700
ups.serial: QS0331213446
ups.status: OL
ups.temperature: 037.8
ups.test.interval: 1209600
ups.test.result: NO
Testing power loss is accomplished with the
upsdrvctl utility. The value of
ups.delay.shutdown is the amount of time in seconds the UPS will wait before shutting down. In the above listing the value is 180 seconds. This value can be changed with the
upsrw utility, though a valid user in
upsd.users with proper permissions must be defined to change variable values. Refer to the
upsd.users and
upsrw man pages for more information. The 180 second delay is enough time to allow for a proper shut down of this system.
# upsdrvctl shutdown labsvr; shutdown -h +0
After this command is run,
upsdrvctl tells the UPS to issue its shutdown sequence. The second command tells the system to shutdown immediately. The server shuts down and after the 180 second delay the UPS shuts down and powers back up. If the BIOS is set correctly in the server, when the UPS supplies line power again the server system comes back on line.
In addition to the extensive documentation installed in
/usr/share/doc/nut/ and on the NUT web site, the man pages contain excellent detailed information on the utilities, configuration files and drivers.
Power interruptions are a common problem in many areas and can cause eventual failure of components and systems. Having an uninterruptible power supply to prevent damage and initiate proper power down sequences can save many headaches as well as avoid disaster. Just implementing a UPS system is not enough and the proper UPS, server cabling and motherboard BIOS are all part of a reliable system.