SUSAN J. KORDOSKY, PETITIONER V. UNITED STATES OF AMERICA No. 90-7759 In The Supreme Court Of The United States October Term, 1990 On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Seventh Circuit Brief For The United States In Opposition OPINIONS BELOW The first opinion of the court of appeals affirming petitioner's conviction (Pet. App. A12-A16) is reported at 878 F.2d 991. The opinion of the court of appeals on remand from this Court (Pet. App. A8-A10) is reported at 909 F.2d 219. The opinion of the court of appeals affirming petitioner's conviction following a remand to the district court for an evidentiary hearing (Pet. App. A2-A4) is reported at 921 F.2d 722. The recommendation of the magistrate on petitioner's motion to suppress (Pet. App. A23-A70); the opinion of the district court denying that motion (Pet. App. A17-A22); and the opinion of the district court on remand (Pet. App. A5-A6) are not reported. JURISDICTION The judgment of the court of appeals was entered on January 15, 1991 (Pet. App. A1). The petition for a writ of certiorari was filed on April 15, 1991. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). QUESTIONS PRESENTED 1. Whether the court of appeals correctly found that an inventory search of petitioner's car, which included opening closed containers, was conducted in accordance with established police procedures. 2. Whether the legality of a search incident to petitioner's arrest was properly determined by reference to the objective circumstances justifying the arrest, rather than the subjective motivation of the arresting officers. STATEMENT Upon her conditional plea of guilty, entered in the United States District Court for the Western District of Wisconsin, petitioner was convicted on one count of possession of cocaine with intent to distribute it, in violation of 21 U.S.C. 841(a)(1). She was sentenced to two years' imprisonment, to be followed by a five-year term of supervised release. The court of appeals affirmed. Pet. App. A12-A16. This Court vacated the judgment and remanded the case for further consideration in light of Florida v. Wells, 110 S. Ct. 1632 (1990). 110 S.Ct. 1943 (1990). Following a remand to the district court for further factual findings, the court of appeals again affirmed the conviction. Pet. App. A2-A4. 1. In 1988, Detective Richard Pharo, a member of an interdepartmental narcotics unit operating in the Madison, Wisconsin, area, was conducting an investigation of petitioner's involvement in drug-related activities. /1/ In March 1988, petitioner was arrested after a search of her house produced a substantial quantity of drugs and cash, a pistol, and drug paraphernalia. She was then released without being formally charged. Pet. App. A13, A23-A25. In the course of his investigation, Detective Pharo learned that petitioner's driving privileges had been suspended through May 10. On that day, Pharo received information that petitioner was preparing to leave the Madison area in order to avoid being arrested and charged with offenses revealed during the March search. Consequently, Pharo went to the vicinity of petitioner's house, accompanied by several other officers, intending to arrest her if she was seen operating a vehicle. When petitioner got into her car and drove away, Pharo instructed a uniformed police officer to stop her. Pharo then arrested petitioner for operating a motor vehicle with a suspended license. Pet. App. A13, A25-A26. Under Madison Police Department policy, a person operating a motor vehicle with a suspended license is subject to a custodial arrest. The arrestee may not post bail at the site of the offense and must accompany the arresting officer to the police station for booking. After Pharo arrested petitioner, he and another officer asked petitioner and the woman accompanying her (subsequently identified as petitioner's sister) to get out of the car. Petitioner refused and resisted Pharo's efforts to open the door. After Pharo succeeded in opening the door and removing petitioner from the car, he noticed a bag, open at the top, that contained small cotton balls and a bottle of rum, materials used to free-base cocaine, behind the driver's seat. Another detective searched the passenger compartment of the car; in a pocket attached to the dashboard, he found a free-base pipe and a test tube (both of which contained cocaine residue), straws, and cotton balls. Pharo then placed petitioner under arrest for possession of cocaine. After a search of petitioner's purse produced 1/16 ounce of cocaine, Pharo advised petitioner that she was also being charged with possession of cocaine with intent to distribute it. Pet. App. A13, A25-A28. Petitioner was taken to the police station and her car was seized for civil forfeiture. An officer drove the car to the station and inventoried its contents. In a locked compartment in the trunk of the car, the officer found $2,970 and 107 grams of cocaine. Pet. App. A13, A28. 2. Petitioner filed motions to suppress. She argued, among other things, that her arrest was pretextual and that the resulting search was therefore unlawful. She also challenged the validity of the inventory search, contending that it had not been performed in accordance with established police procedures. a. After an evidentiary hearing, a magistrate entered a report recommending that the motion be denied. Pet. App. A23-A70. The magistrate noted that petitioner admitted being guilty of the offense of driving with a suspended license and that this Court had held that an arrest upon probable cause justifies a search of the arrestee's person and the passenger compartment of the arrestee's car. Id. at A31-A33. See United States v. Robinson, 414 U.S. 218, 235 (1973); New York v. Belton, 453 U.S. 454, 460 (1981). Because petitioner conceded that there was probable cause for her arrest, the magistrate continued, those cases established the validity of the search of the passenger compartment of her car and her purse. Pet. App. A35. The magistrate then turned to petitioner's argument that the motivation for the arrest nevertheless required suppression of the fruits of the search. The magistrate found that the officers intended to watch petitioner until she committed an anticipated traffic offense and then to arrest her. Pet. App. A37. While he found that the officers' "primary and motivating purpose" was to deter petitioner from leaving town to avoid prosecution, the magistrate added that the officers "must also be held to the knowledge" that an arrest would permit them to conduct a search of petitioner's person and car. Id. at A29, A37. The magistrate held, nonetheless, "that (petitioner) was lawfully arrested on probable cause and that the resulting search of (petitioner) and her vehicle was proper." Pet. App. A47. The magistrate also rejected petitioner's challenge to the legality of the inventory search of the vehicle following its seizure for forfeiture. He noted that petitioner had not challenged the forfeiture itself or the statute pursuant to which it was made, and that the authority of officers to conduct inventory searches of vehicles lawfully in their possession in accordance with established police procedures was well established. Pet. App. A47. The magistrate concluded that petitioner had "offered no factual or legal basis to warrant suppression of" evidence discovered during the inventory search. Ibid. b. The district court denied petitioner's objections to the magistrate's report. Pet. App. A17-A22. After upholding the magistrate's findings of fact, the district court rejected petitioner's claim that the evidence seized incident to her arrest should be suppressed because the arrest was pretextual. Id. at A21. The court also upheld the magistrate's determination that the inventory search was lawful. Id. at A21-A22. c. The court of appeals affirmed. It noted that, under United States v. McCarty, 862 F.2d 143 (7th Cir. 1988), "the test * * * to determine whether an arrest is pretextual is an objective one," and a "search incident to (an) arrest is legal so long as the arresting officer possesses sufficient information to give him probable cause to arrest." Pet. App. A13, A14. Since Detective Pharo knew that petitioner was driving with a suspended license, the court continued, he had probable cause to arrest her and the search incident to that arrest was valid. Id. at A14. The court also rejected petitioner's contention that there was insufficient evidence that the inventory search was performed in accordance with standard police procedures. The court concluded that the magistrate's finding on this point, which the district court had upheld, was not clearly erroneous. Pet. App. A14. 3. This Court vacated the judgment and remanded the case to the court of appeals for reconsideration in light of Florida v. Wells, 110 S. Ct. 1632 (1990). In Wells, the Court affirmed an order suppressing evidence discovered in a closed container in the course of an inventory search of a car because there was "no policy whatever with respect to the opening of closed containers during an inventory search." Id. at 1635. While rejecting the proposition that inventory searches must be "conducted in a totally mechanical 'all or nothing' fashion," the Court ruled that "standardized criteria * * * or established routine * * * must regulate the opening of containers found during inventory searches." Ibid. The court of appeals in turn remanded the case to the district court for an evidentiary hearing on whether the inventory search of petitioner's car had been conducted in accordance with procedures of the type required by Wells. Pet. App. A9-A10. a. After conducting a hearing, the district court held that the detective who inventoried petitioner's car "conducted the inventory * * * in compliance with the standard policy of the Metro Narcotics Unit." Pet. App. A6. The court determined that the Metro unit had its own policies and procedures, and that those procedures, although unwritten, were communicated to members of the unit in the course of their training. The court specifically found (ibid.): Under the standard policy relating to inventory searches which has been in effect since 1981, officers are to conduct an inventory search of a vehicle that has been seized for possible forfeiture; they are to list all items in the vehicle on an inventory sheet; and they are to open all closed containers found within the vehicle. b. The court of appeals again upheld the legality of the inventory search of petitioner's car and affirmed her conviction. Pet. App. A2-A4. The court rejected petitioner's contention that the legality of the inventory search should turn on whether the procedures of the Madison Police Department (as opposed to the Metro unit) satisfied the standards set forth in Wells. Relying on the district court's findings that the Metro unit had its own procedures and that the inventory in this case had been prepared in accordance with "an official, unwritten, standard policy," the court of appeals concluded that "the concerns voiced by (this) Court in Wells are not present here." Pet. App. A4. The court of appeals added that "nothing in Wells, Bertine or the remainder of the cases in this area require the policy (regarding inventories) to be reduced to writing." Pet. App. A4. In the alternative, the court concluded that petitioner would not prevail even if the case turned on the sufficiency of the Madison Police Department's policy regarding inventory searches. Even assuming the policy proffered by petitioner were applicable to Metro officers and meant what petitioner suggested, the court explained, the policy was sufficiently specific to satisfy Wells. Pet. App. A4. ARGUMENT 1. Petitioner contends (Pet. 21-26) that the inventory search of her car was not conducted in accordance with an established procedure, as required by Florida v. Wells, supra. This challenge to the district court's findings of fact presents no question calling for this Court's review. Petitioner's car was inventoried by an officer serving with a unit consisting of officers from several law enforcement agencies in the Madison area -- the Madison Police Department, the University of Wisconsin Police, and the Dane County Sheriff's Department. The crux of petitioner's position is that the legality of an inventory conducted by a member of that unit should be judged by reference to the procedures of the department from which that particular officer was detailed, rather than the procedures of the unit itself. That position is untenable on its face, since it suggests that the legality of an inventory of a car seized by a member of the Metro unit should depend on which agency supplied the particular officer assigned to prepare the inventory. The concern underlying Wells, which is that inventory searches not be left to the unguided discretion of individual officers, is fully satisfied when officers detailed to specialized units observe whatever procedures are prescribed for members of those units. The district court found that the Metro unit had "its own policies and procedures, which may or may not correspond to the policies of the Madison Police Department." Pet. App. A6. It also found that the unit's standard policy regarding inventory searches required the unit's members "to list all items in the vehicle on an inventory sheet" and "to open all closed containers found within the vehicle." Ibid. Wells requires nothing more. In any event, the court of appeals concluded that even if the validity of the inventory search were determined by reference to the manual of the Madison Police Department, petitioner would still not prevail. Even if the manual were construed to provide (as petitioner argued) that "officers 'may' in certain circumstances open closed containers," the court explained, Wells makes clear that the Fourth Amendment does not mandate "a totally mechanical 'all or nothing'" approach to inventory searches and that "(t)he allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment." Pet. App. A4. 2. Petitioner renews the contention (Pet. 28-37), which she advanced in her prior petition, that the court of appeals' objective approach to allegedly pretextual arrests conflicts with this Court's decision in United States v. Lefkowitz, 285 U.S. 452, 467 (1932), and with the approach employed by other courts of appeals. The objective standard applied in this case, however, is fully supported by this Court's recent decisions on similar Fourth Amendment questions, as well as by decisions from many other courts of appeals, and it is not inconsistent with Lefkowitz. Although there is some divergence among the courts of appeals on the standards applicable to stops falling short of full custodial arrests, this case does not present that issue. Petitioner was arrested for committing an offense that, under Madison Police Department policy, made a custodial arrest mandatory. Thus, as the district court specifically found (Pet. App. A21), petitioner may not rely on cases involving investigative stops or stops for traffic offenses that do not customarily warrant an arrest. Further review is therefore not warranted. As the court of appeals noted, petitioner does not dispute that Detective Pharo had probable cause to arrest her for driving with a suspended license, an offense "requir(ing) custodial arrest" (Pet. App. A21). Nor does she challenge the established rules that the arrest of a person on probable cause justifies a search of the person, United States v. Robinson, supra, and that the arrest of a person in a vehicle justifies a search of the entire passenger compartment of that vehicle, including closed containers therein, New York v. Belton, supra. Her contention, rather, is that the otherwise valid search of her car was rendered unlawful by the arresting officer's motivation -- in effect, that she should be treated as though the police had decided to overlook an offense warranting (indeed, requiring) a full custodial arrest. /2/ a. This Court has repeatedly made clear that the "reasonableness" of searches and seizures for purposes of the Fourth Amendment must be determined by reference to an objective standard. In Soctt v. United States, 436 U.S. 128 (1978), the Court upheld the legality of a wiretap notwithstanding the officers' purposeful failure to comply with a minimization order. Referring to prior decisions in which it had evaluated officers' actions from an objective perspective, including Terry v. Ohio, 392 U.S. 1 (1968), and United States v. Robinson, supra, the Court explained that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 436 U.S. at 138. Similarly, in United States v. Villamonte-Marquez, 462 U.S. 579, 584 n.3 (1983), the Court rejected the contention that a Coast Guard documentation check of a vessel on the high seas was pretextual because the officers "were following an informant's tip that (the) vessel * * * was thought to be carrying marijuana." The Court stated that "(t)his line of reasoning was rejected in a similar situation in Scott v. United States, 436 U.S. 128, 135-139 (1978), and we again reject it." In Maryland v. Macon, 472 U.S. 463 (1985), the attendant of an adult bookstore contended that police officers had effected a Fourth Amendment seizure of allegedly obscene materials when they purchased the materials with marked money that they intended to retrieve. The Court rejected that argument, explaining (id. at 470-471): Whether a Fourth Amendment violation has occurred "turns on an objective assessment of the officer's actions in light of the facts and circumstances confronting him at the time," Scott v. United States, 436 U.S. 128, 136 (1978), and not on the officer's actual state of mind at the time the challenged action was taken. Id., at 138 and 139, n. 13. Objectively viewed, the transaction was a sale in the ordinary course of business. The sale is not retrospectively transformed into a warrantless seizure by virtue of the officer's subjective intent to retrieve the purchase money to use as evidence. In Graham v. Connor, 490 U.S. 386 (1989), the Court held that claims that police officers have used excessive force during arrests, investigatory stops, and other seizures must be analyzed under the Fourth Amendment's "reasonableness" standard. That standard, the Court emphasized once again, "is an objective one: the question is whether the officers' actions are 'objectively reasonable' in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation." Id. at 397. The Court disapproved the test that the court of appeals applied to the case, under which the issue was whether the officers had acted maliciously and sadistically. The Court explained that "the 'malicious and sadistic' factor" is unacceptable because it "puts in issue the subjective motivations of the individual officers, which our prior cases make clear has no bearing on whether a particular seizure is 'unreasonable' under the Fourth Amemdment." Ibid. Likewise, in Horton v. California, 110 S. Ct. 2301 (1990), the Court rejected a contention that evidence "in plain view" that is seized without a warrant must be suppressed if a defendant shows that the officer involved anticipated finding the evidence. The Court explained that "evenhanded law enforcement is best achieved by the application of objective standards of conduct, rather than standards that depend on the subjective state of mind of the officer. The fact that an officer is interested in an item of evidence and fully expects to find it in the course of a search should not invalidate its seizure if the search is confined in area and duration by the terms of a warrant or a valid exception to the warrant requirement." Id. at 2308-2309. Accord Florida v. Jimeno, No. 90-622 (May 23, 1991), slip op. 3 ("The standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness -- what would the typical reasonable person have understood by the exchange between the officer and the suspect?"). b. In keeping with these cases, recent decisions by the courts of appeals have consistently sustained searches incident to custodial arrests against claims that the arrests were pretextual. United States v. Trigg, 925 F.2d 1064 (7th Cir. 1991); Warren v. City of Lincoln, 864 F.2d 1436 (8th Cir.) (en banc), cert. denied, 490 U.S. 1091 (1989); United States v. Causey, 834 F.2d 1179 (5th Cir. 1987) (en banc). /3/ Sitting en banc, the Fifth Circuit explained why this Court's decisions foreclose the subjective approach that petitioner advocates (United States v. Causey, 834 F.2d at 1184): Again and again, in precisely the present context, the Court has told us that where police officers are objectively doing what they are legally authorized to do * * * the results of their investigations are not to be called into question on the basis of any subjective intent with which they acted. This Court's decision in United States v. Lefkowitz, 285 U.S. 452 (1932), does not support a different conclusion. There, the Court observed in passing that "(a)n arrest may not be used as a pretext to search for evidence." Id. at 467. However, the "only question presented" in Lefkowitz was whether a general search of rooms in which arrests had been made and the resulting seizures of various documents and things were "reasonable as an incident of the arrests." Id. at 463. The Court's analysis did not extend beyond that question. See Id. at 463-467. /4/ It therefore seems clear that the Court's reference to an arrest as a "pretext" was meant to disapprove the practice of using an arrest warrant as a substitute for a warrant authorizing a broad search of premises in which an arrest might take place. In Lefkowitz, the Court had no occasion even to consider whether an otherwise lawful, properly limited search could be rendered illegal based upon the subjective motivations of the officers conducting it. See 1 W. LaFave, Search and Seizure Section 1.4(e), at 91 (2d ed. 1987) (Lefkowitz "turns out upon close inspection to be of no help in answering this question."). c. The decisions on which petitioner relies do not establish a conflict among the circuits on the question presented by this case. Contrary to petitioner's position, no circuit is committed to an approach that would make the legality of a search incident to an arrest dependent upon the motivation of the arresting officer. Language in United States v. Smith, 802 F.2d 1119, 1124 (9th Cir. 1986), that supports petitioner's position is dictum; to our knowledge, no subsequent Ninth Circuit decision has suppressed evidence on the ground that an arrest producing the evidence was pretextual. /5/ McKnight v. United States, 183 F.2d 977, 978-979 (D.C. Cir. 1950), a case decided over 40 years ago, was on all fours with Lefkowitz. Officers who had an opportunity to arrest a defendant on the street waited for him to enter his home and then conducted a general search of the premises; the case did not involve a properly limited search incident to an arrest challenged on the basis of improper motivation. /6/ In view of intervening decisions of this Court and decisions by other courts of appeals applying an objective approach to Fourth Amendment questions, there is no reason to believe that the Ninth and D.C. Circuits will regard themselves as bound to apply a purely subjective approach to the lawfulness of custodial arrests based upon probable cause. Indeed, when the Fifth Circuit was called upon to consider whether to adhere to cases suggesting a "subjective-intent exclusionary rule," it found that those decisions had been "bypassed both by the Supreme Court and by our own more recent authorities founded on Supreme Court decisions handed down since then." United States v. Causey, 834 F.2d at 1184. c. In cases involving stops for investigative purposes or traffic offenses that would not justify a custodial arrest, two courts have applied a variation of the objective approach, under which the court seeks to determine whether a reasonable officer would have taken the challenged actions under the same circumstances. United States v. Smith, 799 F.2d 704, 708-709 (11th Cir. 1986); United States v. Guzman, 864 F.2d 1512, 1515-1517 (10th Cir. 1988). As the Eleventh Circuit has since recognized, the rationale of these decisions does not require a similar approach to custodial arrests based upon probable cause. See United States v. Dunkley, 911 F.2d 522, 525 (11th Cir. 1990), cert. denied, 111 S. Ct. 765 (1991); United States v. Strickland, 937 F.2d 937, 940 (11th Cir. 1990). As the district court noted, Pet. App. A21: Under Madison police procedures, the offense of driving after license suspension requires custodial arrest. * * * Thus, (petitioner) cannot rely on the argument made in Smith that no reasonable officer would have taken her into custody were it not for the improper desire to search her and her vehicle. Moreover, this is not a case, like Smith and Guzman, in which the officers stopped the defendant simply to obtain the opportunity to conduct a search. The magistrate and the district court both found that the principal reason that the officers stopped petitioner when they did was because they feared she was leaving town to avoid prosecution for drug offenses disclosed as a result of the March 1988 search of her house. Pet. App. A20, A28-A29, A37. Moreover, the search of the passenger compartment of petitioner's car purse occurred only after petitioner defied instructions to leave her car and resisted Detective Pharo's efforts to open the car door. Id. at A26. Thus, even if the rationale of Smith and Guzman were extended to custodial arrests based upon probable cause, it is questionable that petitioner would prevail. CONCLUSION The petition for a writ of certiorari should be denied. Respectfully submitted. KENNETH W. STARR Solicitor General ROBERT S. MUELLER, III Assistant Attorney General KATHLEEN A. FELTON Attorney JUNE 1991 /1/ The unit, known as the Metro Narcotics Unit, consisted of members of the Madison Police Department, the University of Wisconsin Police, and the Dane County Sheriff's Department. Pet. App. A5. Detective Pharo was a member of the Madison Police Department. Pet. App. A13. /2/ This Court recently denied certiorari in another case from the Seventh Circuit presenting the same question. Hope v. United States, 111 S. Ct. 1640 (1991). The petition suggests that both the initial search incident to her arrest and the subsequent inventory search of petitioner's car should be subject to challenge as pretextual. See Pet. 26-28. We disagree. The inventory search was based not on the arrest for driving without a valid license, but on the evidence gathered during the search of the passenger compartment of the car and petitioner's purse. By the time the inventory search was conducted, therefore, the officers had already found narcotics in petitioner's car and purse and had advised her that she was being charged with possession of cocaine with intent to distribute it. On that basis, Detective Pharo ordered that petitioner's car be seized for a forfeiture action. The inventory search was then conducted, as shown by the evidence discussed above, pursuant to standard practices in such circumstances. Thus, if the initial arrest and search are upheld, nothing in Wells would support separate analysis of the question whether the ensuing inventory was pretextual. /3/ Other circuits apply the same approach to Terry stops and stops for traffic offenses that, in and of themselves, would not justify a custodial arrest. See United States v. Cummins, 920 F.2d 498 (8th Cir. 1990); United States v. Nersesian, 824 F.2d 1294, 1315-1317 (2d Cir.), cert. denied, 484 U.S. 957 (1987); United States v. Hawkins, 811 F.2d 210, 213-215 (3d Cir.), cert. denied, 484 U.S. 833 (1987). /4/ The case on which the Court principally relied in Lefkowitz, Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931), also involved a general, exploratory search that was found to exceed the officers' lawful authority. /5/ Earlier Ninth Circuit decisions on which the Smith panel relied, Williams v. United States, 418 F.2d 159 (1969), aff'd, 401 U.S. 646 (1971), and Taglavore v. United States, 291 F.2d 262 (1961), predated this Court's decisions in Scott and its progeny. See also United States v. Espinosa, 827 F.2d 604, 609 (9th Cir. 1987) (considering pretext issue and finding no violation off Fourth Amendment), cert. denied, 485 U.S. 968 (1988). /6/ Petitioner's reliance on United States v. Costello, 381 F.2d 698 (2d Cir. 1967), in which the court of appeals rejected a claim that a search was pretextual, is misplaced. In Nersesian, the Second Circuit adopted the objective standard applied here. To the extent, if any, that Costello supports petitioner's view, it has no continuing vitality. Likewise, the panel decision in Warren v. City of Lincoln, 816 F.2d 1254, 1257-1259 (8th Cir. 1987), was vacated when the Eighth Circuit granted rehearing en banc. As noted above, the full court applied an objective approach. Petitioner's reliance on an asserted conflict among the decisions of the Seventh Circuit is also misplaced. See Pet. 30-34. Although it is far from clear that the Seventh Circuit employed a subjective test in United States v. D'Antoni, 856 F.2d 975 (1988), recent decisions demonstrate that the court is committed to a purely objective approach in cases involving arrests upon probable cause. United States v. Trigg, 925 F.2d at 1065; United States v. Rivera, 906 F.2d at 321 ("a search incident to an arrest is legal so long as the arresting officer possesses sufficient information to give him probable cause to make an arrest); United States v. McCarty, 862 F.2d 143 (1988); Pet. App. A13. (United States v. Lewis, 910 F.2d 1367, 1371 (7th Cir. 1990), involved a stop short of a custodial arrest, and its discussion of pretext was dictum, since the stop was found not to be pretextual.) In any event, any intra-circuit conflict would not call for this Court's review. Wisniewski v. United States, 353 U.S. 901 (1957). Significantly, petitioner chose not to seek en banc review of the asserted conflict at any stage of these extended proceedings.