United States Court of Appeals

For the Eighth Circuit 

___________________________

No. 19-2369

___________________________ 

Elliott Finch, Jr.

 Plaintiff - Appellee

v.

Dexter Payne, Director, Arkansas Department of Correction

 Defendant - Appellant

____________

Appeal from United States District Court 

for the Eastern District of Arkansas - Pine Bluff

____________ 

Submitted: September 22, 2020

 Filed: December 18, 2020

____________ 

Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges. 

____________

SHEPHERD, Circuit Judge.

A Pulaski County, Arkansas, jury convicted Elliot Harold Finch, Jr. of 

aggravated residential burglary, aggravated assault on a family or household 

member, and first-degree terroristic threatening. Finch was subject to a firearm 

enhancement and sentenced as a habitual offender, resulting in a sentence of life 

imprisonment plus 15 years in the Arkansas Department of Corrections and a 

$10,000 fine. Finch appealed his conviction to the Arkansas Supreme Court, 

alleging that he was denied his Sixth Amendment right to self-representation and 
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that he was prejudiced by juror misconduct. The Arkansas Supreme Court affirmed 

the conviction. Finch challenged his conviction under 28 U.S.C. § 2254 in the

United States District Court for the Eastern District of Arkansas, raising the same 

arguments as in state court. The district court1 granted Finch’s petition based on his 

Sixth Amendment claim. The State of Arkansas (the State) now appeals, arguing 

that the district court failed to give proper deference to the Arkansas Supreme 

Court’s factual determinations. Having jurisdiction under 28 U.S.C. § 1291, we 

affirm. 

I. 

On August 22, 2013, Finch entered his ex-girlfriend’s house by breaking 

through a window. His ex-girlfriend was home with her two children and was taking 

a shower. Finch met her at gunpoint as she exited the shower and threatened to kill 

her, her children, and himself. The ex-girlfriend attempted to calm Finch down, 

eventually resorting to sexual intercourse with him to alleviate the immediate threat 

of violence. Finch did not leave the home after having sex with the ex-girlfriend. 

He stayed the night, sleeping in the ex-girlfriend’s bed with her, but positioning 

himself between her and the door so she could not leave without his knowledge. The 

next morning, Finch allowed the ex-girlfriend to leave for work. She took her nineyear-old daughter with her but was unable to wake up her teenage son, who was on 

medication. After leaving, the ex-girlfriend called the police, and Finch was 

subsequently arrested. Finch was charged with kidnapping, aggravated residential 

burglary, possession of firearms by certain persons, aggravated assault on a family 

or household member, and first-degree terroristic threatening. 

Finch received court appointed counsel, and the matter proceeded to trial. At 

some point during the pretrial proceedings, Finch became frustrated with his courtappointed counsel. At a September 22, 2015 omnibus hearing, Finch requested to 

1

The Honorable Billy Roy Wilson, United States Judge for the Eastern District 

of Arkansas, adopting the report and recommendation of the Honorable Patricia S. 

Harris, United States Magistrate Judge for the Eastern District of Arkansas.
-3-

speak and informed the court that he wanted new counsel. R. Doc. 7-2, at 328. The 

trial judge denied the request. R. Doc. 7-2, at 328. At an October 19, 2015 hearing, 

Finch stated: “I want to represent myself then”; “I want to represent myself.”; “I 

want to represent myself, Your Honor. And that’s all I’m telling you”; and “I don’t 

want no attorney.” R. Doc. 7-3, at 10-12. The trial judge again dismissed the request 

on the basis that Finch had not properly cooperated with his Act 3 mental 

evaluation.2

 R. Doc. 7-3, at 15.

Thereafter, Finch filed a handwritten motion to waive counsel and proceed 

pro se, citing Faretta v. California, 422 U.S. 806 (1975). R. Doc. 7-2, at 136. On 

March 10, 2016, the court conducted a hearing to discuss Finch’s second Act 3 

evaluation report, where Finch’s counsel brought the pending motion to the court’s 

attention. R. Doc. 7-3, at 40. The court and the prosecution acknowledged Finch’s 

request, and the court engaged Finch in a colloquy regarding his knowledge of the 

judicial system. See R. Doc. 7-3, at 40-51. While Finch wished to proceed pro se, 

he inquired about the availability of “standby counsel.” R. Doc. 7-3, at 50. 

Ultimately, the trial judge denied the motion “based on the seriousness of the 

offenses and the likelihood of [Finch] getting some serious time.” R. Doc. 7-3, at 

51. The case proceeded to trial with Finch’s court-appointed attorney. The jury 

convicted Finch of aggravated residential robbery, aggravated assault on a family or 

household member, and first-degree terroristic threatening and was unable to reach 

2

An Act 3 mental evaluation may be ordered by the court or requested by the 

defendant whenever the defendant “intends to rely upon the defense of mental 

disease or defect” or “[t]here is reason to doubt the defendant’s fitness to proceed.” 

Ark. Code Ann. § 5-2-305 (repealed 2017). Finch underwent two Act 3 evaluations. 

In each evaluation, the forensic pathologist determined that Finch possessed the 

mental fitness required to participate in the proceedings. However, Finch refused to 

participate in the part of the evaluation focused on his mental state at the time of the 

offense because he did not intend to rely upon a defense of not guilty by reason of

mental disease or defect.

 
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a verdict on kidnapping, resulting in a mistrial on that charge.3 Finch received an 

aggregate sentence of life imprisonment plus 15 years and a $10,000 fine.

Finch appealed his conviction to the Arkansas Supreme Court, arguing that he 

had been denied his Sixth Amendment right to self-representation and that he had 

been prejudiced by juror misconduct. The Arkansas Supreme Court found that the 

trial court’s inquiry “included irrelevant concerns, such as [Finch]’s level of 

education and technical legal knowledge, and the court’s stated basis for denying the 

request . . . was invalid.” Finch v. State, 542 S.W.3d 143, 145 (Ark. 2018). The 

Arkansas Supreme Court nonetheless held, under its independent review, that 

Finch’s request was not unequivocal and that “the trial court could have concluded 

that [Finch] had ‘engaged in conduct that would prevent the fair and orderly 

exposition of the issues.’” Id. Based on these holdings, the Arkansas Supreme Court 

determined that Finch had not invoked his right to defend himself pro se. The court 

additionally found that Finch “could not show a reasonable possibility of prejudice” 

to succeed on his juror misconduct claim and affirmed his conviction. Id. at 149. 

Finch then sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in 

federal court. Finch raised the same two issues as in state court: (1) that he was 

denied his Sixth Amendment right to self-representation; and (2) that he was 

prejudiced by juror misconduct. In considering Finch’s Sixth Amendment claim, 

the magistrate judge thoroughly reviewed and documented the state court 

proceedings. The magistrate judge determined that the Arkansas Supreme Court’s 

legal framework under Faretta was reasonable in deciding whether Finch had 

invoked his right to waive counsel, pursuant to 28 U.S.C. § 2254(d)(1). The 

magistrate judge went on to discuss the Arkansas Supreme Court’s factual 

determinations, or lack thereof, under subsection (d)(2) in great detail. The 

magistrate judge determined that the Arkansas Supreme Court made three specific 

factual findings: (1) the trial court’s questions to Finch were irrelevant; (2) Finch’s 

3

The charge for possession of firearms by certain persons was severed before 

trial.
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requests to represent himself were equivocal; and (3) Finch was disruptive, 

preventing a fair and orderly exposition of the issues. The magistrate judge then 

considered whether Finch overcame the state court’s presumption of correctness 

under 28 U.S.C. § 2254(e)(1) by clear and convincing evidence. The magistrate 

judge agreed with the determination that the trial court’s questions of Finch were

irrelevant, but she found that Finch had overcome the presumption of correctness of 

the latter two findings and that the Arkansas Supreme Court’s determinations were 

unreasonable. The magistrate judge determined that Finch had unequivocally 

invoked his right to self-representation on multiple occasions, including in a written 

motion. The magistrate judge further found that the record does not reflect that 

Finch’s behavior prevented “a fair and orderly exposition of the issues,” especially 

in light of the more extreme misbehavior documented in the case law. Finally, the 

magistrate judge summarily found Finch’s second claim to be without merit because 

the state court determined that Finch was not prejudiced by the juror misconduct and 

such determination was entitled to deference under 28 U.S.C. § 2254.

The district court approved and adopted the magistrate judge’s report and 

recommendation and granted Finch’s habeas petition, directing the State to either 

release Finch or provide him with a new trial within 120 days of the order. The State

appealed the district court’s findings. Only Finch’s Sixth Amendment claim is 

before this Court on appeal.

II. 

“On appeal from a district court’s grant of a habeas petition, we review the 

district court’s findings of fact for clear error, and its conclusions of law de novo.” 

Franklin v. Hawley, 879 F.3d 307, 311 (8th Cir. 2018) (quoting Escobedo v. Lund, 

760 F.3d 863, 868 (8th Cir. 2014)). However, because Finch’s petition is based on 

a state court adjudication, we are further restricted by the limitations set forth in 28 

U.S.C. § 2254. Gray v. Norman, 739 F.3d 1113, 1116 (8th Cir. 2014). Section 2254 

states, in part:
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(d) An application for a writ of habeas corpus on behalf of a person 

in custody pursuant to the judgment of a State court shall not be granted 

with respect to any claim that was adjudicated on the merits in State 

court proceedings unless the adjudication of the claim— 

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in 

the State court proceeding.

(e)(1) In a proceeding instituted by an application for a writ of habeas 

corpus by a person in custody pursuant to the judgment of a State court, 

a determination of a factual issue made by a State court shall be 

presumed to be correct. The applicant shall have the burden of 

rebutting the presumption of correctness by clear and convincing 

evidence.

28 U.S.C. § 2254(d)-(e)(1). 

Section 2254(d)(1) clearly refers to situations where a “state court applies a 

rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or 

where it “confronts a set of facts that are materially indistinguishable from a decision 

of [the Supreme] Court and nevertheless arrives at a result different from [Supreme 

Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). This category 

of cases can be described as those presenting “questions of law,” or purely legal 

issues. The magistrate judge employed this aspect of § 2254(d)(1) when she 

determined that the Arkansas Supreme Court’s articulation of Faretta was not 

contrary to the Supreme Court’s jurisprudence.4

4

The Arkansas Supreme Court articulated Faretta in the following manner: 

A defendant may waive the right to counsel and invoke his right to 

defend himself pro se provided that (1) the request to waive the right to 

counsel is unequivocal and timely asserted, (2) there has been a 
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However, § 2254(d)(1) also includes those instances where a “state court 

identifies the correct governing legal principle . . . but unreasonably applies that 

principle to the facts of the prisoner’s case.” Id. at 413; see also Bell v. Cone, 535 

U.S. 685, 694 (2002) (“The court may grant relief under the ‘unreasonable 

application’ clause if the state court correctly identifies the governing legal principle

from our decisions but unreasonably applies it to the facts of the particular case.”). 

The Supreme Court has “sometimes referred to such a question, which has both 

factual and legal elements, as a ‘mixed question of law and fact.’” GuerreroLasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020).5

 

“In the § 2254(d) context, as elsewhere, the appropriate methodology for 

distinguishing questions of fact from questions of law has been, to say the least, 

elusive[,]” but we find no difficulty categorizing the present determinations. Miller 

v. Fenton, 474 U.S. 104, 113 (1985). This case requires this Court to determine 

whether the record supports a finding that Finch invoked his right to selfrepresentation under Faretta. These “application-of-legal-standard-to-fact sort of 

question[s]” are mixed questions of law and fact. See United States v. Gaudin, 515 

U.S. 506, 512 (1995). Such questions, as we have indicated above, are reviewed 

knowing and intelligent waiver of the right to counsel, and (3) the 

defendant has not engaged in conduct that would prevent the fair and 

orderly exposition of the issues.

Finch, 542 S.W.3d at 145-46. The magistrate found that this articulation was not 

contrary to, or an unreasonable application of, Faretta. 

5

On the other hand, § 2254(d)(2) governs determinations that are purely 

factual in nature. Of course, even further discussion is necessary to determine the 

interplay between §§ 2254(d)(2) and (e)(1) as they employ two separate standards 

of review for factual determinations: unreasonableness and incorrect by clear and 

convincing evidence, respectively. See Wood v. Allen, 558 U.S. 290, 300 (2010) 

(“Although we granted certiorari to resolve the question of how §§ 2254(d)(2) and 

(e)(1) fit together, we find once more that we need not reach this question . . . .”). 

However, we do not find such discussion necessary to dispose of the present case.
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under § 2254(d)(1)’s “unreasonable application” clause. See Williams, 529 U.S. at 

413.

This distinction is critical because the Arkansas Supreme Court’s 

determinations, as facts applied to law, are not afforded the “presumption of 

correctness” of § 2254(e)(1). Section 2254(e)(1) only applies to factual issues. 

Issues of fact are: 

basic, primary, or historical facts: facts “in the sense of a recital of 

external events and the credibility of their narrators . . . .” So-called 

mixed questions of fact and law, which require the application of a legal 

standard to the historical-fact determinations, are not facts in this sense. 

Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963) (alteration in original) (citation 

omitted). In this case, the relevant historical facts of Finch’s case are immortalized 

in the respective court transcripts and filings and are undisputed by the parties. We 

are tasked only with considering whether “the[se] historical facts . . . satisfy the legal 

test chosen.” Guerrero-Lasprilla, 140 S. Ct. at 1069 (citation omitted). Therefore, 

our review is limited to determining only whether the Arkansas Supreme Court’s 

disposition of Finch’s case “involved an unreasonable application of[] clearly 

established Federal law.” 28 U.S.C. § 2254(d)(1).

Under § 2254(d)(1) we must determine “whether the state court’s application 

of clearly established federal law was objectively unreasonable.” Williams, 529 

U.S. at 409. “An ‘unreasonable application’ is different from an incorrect or 

erroneous application; a prisoner must establish that a state court’s adjudication was 

not only wrong, but also objectively unreasonable, such that ‘fairminded jurists’ 

could not disagree about the proper resolution.” Smith v. Titus, 958 F.3d 687, 691 

(8th Cir. 2020), appeal docketed, No. 20-633 (U.S. Nov. 10, 2020) (citation omitted); 

see also Strong v. Roper, 737 F.3d 506, 510 (8th Cir. 2013) (“[I]t is not enough for 

us to conclude that, in our independent judgment, we would have applied federal law 

differently from the state court; the state court’s application must have been 
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objectively unreasonable.” (quoting Rousan v. Roper, 436 F.3d 951, 956 (8th Cir. 

2006))). 

A.

The State first contends that the Arkansas Supreme Court reasonably 

determined that Finch’s invocation of self-representation was equivocal. “The Sixth 

Amendment . . . implies a right of self-representation.” Faretta, 422 U.S. at 821. 

“‘If [a defendant’s] request’ to ‘assert his right to self-representation’ ‘is clear and 

unequivocal, a Faretta hearing must follow.’” United States v. Kelley, 787 F.3d 915, 

918 (8th Cir. 2015) (alteration in original) (quoting Bilauski v. Steele, 754 F.3d 519, 

522 (8th Cir. 2014)). “Equivocation, which sometimes refers only to speech, is 

broader in the context of the Sixth Amendment, and takes into account conduct as 

well as other expressions of intent.” Bilauski, 754 F.3d at 523 (citation omitted). 

[W]hen a defendant in a criminal case has moved to represent himself 

and the court has not entered a ‘clear’ and ‘conclusive[]’ denial, it is 

incumbent on the defendant to ‘reassert his desire to proceed pro se’; 

his failure to do so . . . ‘constitute[s] a waiver of his previously asserted 

Sixth Amendment’ right to proceed pro se. 

Id. at 522 (quoting United States v. Barnes, 693 F.3d 261, 272 (2d Cir. 2012)). 

“However, to avoid waiver of a previously invoked right to self-representation, a 

defendant need not ‘continually renew his request to represent himself even after it 

is conclusively denied by the trial court.’” Wilson v. Walker, 204 F.3d 33, 37 (2d 

Cir. 2000) (citation omitted). 

At the trial court level, Finch made no less than two requests to proceed pro 

se: October 19, 2015, and February 25, 2016. At the October 19, 2015 omnibus 

hearing, Finch stated: “I want to represent myself then.”; “I want to represent 

myself.”; “I want to represent myself, your Honor. And that’s all I’m telling you.”; 

and “I don’t want no attorney.” R. Doc. 7-3, at 10-12. In the Arkansas Supreme 

Court’s view, these comments are “interspersed [with] his complaints about his 
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attorney” and interruptions. Finch, 542 S.W.3d at 146. However, Finch’s request

to proceed pro se was well understood by the trial court, as the trial court proceeded 

to question Finch concerning his technical legal knowledge and denied his motion 

based on “the history that [the trial court] had with [the] report from Act 3 and all 

that.” R. Doc. 7-3, at 15.

After this “clear” and “conclusive” denial, Finch was under no further 

obligation to reassert his Sixth Amendment right to self-representation. Bilauski, 

754 F.3d at 522; Wilson, 204 F.3d at 37. Nevertheless, Finch continued to 

passionately pursue his constitutional right. On February 25, 2016, Finch filed a pro 

se motion to waive counsel, citing Faretta and requesting a hearing. The motion 

was addressed at the March 10, 2016 hearing, but only after Finch’s court-appointed 

counsel brought it to the attention of the trial court. The State is quick to point out 

Finch’s requests for “new counsel” and “standby counsel” during this colloquy, but 

in doing so, it ignores its own request to view Finch’s invocations in a contextual 

setting.6

 Every party to the hearing—the trial court, the prosecutor, the courtappointed defense counsel, and Finch—understood Finch’s request to be an 

invocation of his right to proceed pro se. The trial court again questioned Finch 

regarding matters irrelevant to a Faretta analysis, such as Finch’s technical legal 

knowledge. The trial court denied Finch’s motion “based on the seriousness of the 

offenses and the likelihood of [Finch] getting some serious time,” which, as the 

Arkansas Supreme Court identified, are “invalid” bases for denying Finch’s Sixth 

Amendment right to self-representation. See Finch, 542 S.W.3d at 146; see also 

Faretta, 422 U.S. at 834 (“[A]lthough he may conduct his own defense ultimately to 

his own detriment, his choice must be honored out of ‘that respect for the individual 

which is the lifeblood of the law.’” (citation omitted)). 

6

We note that Finch’s comments regarding “standby counsel” do not 

equivocate his invocation to proceed pro se. The Supreme Court has stated that the 

appointment of standby counsel is in fact an appropriate mechanism to balance the 

needs of the judicial process and the defendant’s rights. See Faretta, 422 U.S. at 834 

n.46; see also McKaskle v. Wiggins, 465 U.S. 168, 174 (1984).
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The Arkansas Supreme Court failed to identify any other basis for finding that 

Finch’s requests were equivocal. Applying the historical facts of the record to 

Faretta, we conclude that Finch clearly and unequivocally invoked his right to selfrepresentation. As soon as Finch manifested this clear and unequivocal invocation, 

the proceedings should have paused, and the trial court should have conducted a 

proper Faretta hearing. The Arkansas Supreme Court’s finding to the contrary is 

objectively unreasonable. 

B. 

The State next contends that the Arkansas Supreme Court’s determination that 

“the trial court could have concluded that [Finch] had ‘engaged in conduct that 

would prevent the fair and orderly exposition of the issues” was a reasonable 

determination under § 2254, precluding the district court’s grant of Finch’s habeas 

petition. “‘The right to self-representation . . . is not absolute. Once the defendant 

makes a clear and unequivocal request to represent himself, a court may nonetheless 

deny the request in certain circumstances,’ such as when . . . the defendant ‘engages 

in serious and obstructionist misconduct . . . .” Kelley, 787 F.3d at 917-18 (first 

alteration in original) (emphasis added) (quoting United States v. Edelmann, 458 

F.3d 791, 808 (8th Cir. 2006)). The type of conduct required for a court to deny a 

defendant’s request to proceed pro se generally requires extreme disruption of the 

judicial process. See, e.g., United States v. Luscombe, 950 F.3d 1021 (8th Cir. 2020) 

(affirming the revocation of the defendant’s right to self-representation when the 

defendant defied court orders, argued and interrupted witnesses repeatedly, and 

attempted to serve numerous harassing subpoenas on victims). Unless other 

aggravating factors are present, courts typically do not deny a defendant’s initial 

motion to proceed pro se, but instead revoke the previously granted selfrepresentation if the defendant subsequently engages in obstructionist behavior. See, 

e.g., id.; Edelmann, 458 F.3d 791 (affirming the initial denial of the defendant’s right 

to self-representation when the defendant waited until five days before trial, 

requested and received several continuances, and coupled her request with several 

other motions).
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Finch’s behavior is starkly mild compared to the level of obstructionist 

conduct outlined above. At worst, Finch spoke out of turn during two hearings and 

refused to comply with a portion of a mental evaluation he did not wish to use in his 

defense. While Finch’s behavior is not that of the model defendant, we can 

understand the frustration of an individual who is attempting to assert his Sixth 

Amendment right, only to be ignored and forced to participate in a defense that is 

not his. See Faretta, 422 U.S. at 834 (“To force a lawyer on a defendant can only 

lead him to believe that the law contrives against him. Moreover, it is not 

inconceivable that in some rare instances, the defendant might in fact present his 

case more effectively by conducting his own defense.”). 

There is no evidence in the record that Finch was attempting to manipulate, 

subvert, or delay the trial process. In contrast, Finch regularly upheld decorum by 

referring to the trial court judge as “sir” and “Your Honor,” and was responsive to 

the court’s questioning. See Finch, 543 S.W.3d at 154 (Hart, J., dissenting). The 

record does not support a finding that Finch engaged in serious and obstructionist 

misconduct, and the Arkansas Supreme Court’s finding to the contrary is objectively 

unreasonable.

C. 

Finally, the State contends that the district court erred by treating as dicta the 

Arkansas Supreme Court’s determination that Finch was not capable of “knowingly 

and intelligently” waiving his right to counsel. “When an accused manages his own 

defense, he relinquishes, as a purely factual matter, many of the traditional benefits 

associated with the right to counsel. For this reason, in order to represent himself, 

the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.” 

Faretta, 422 U.S. at 835 (citation omitted). The Arkansas Supreme Court mentioned 

this “knowingly and intelligently” requirement,7 but the magistrate judge determined 

7

The Arkansas Supreme Court stated: “[T]he [trial] court ordered a mental 

evaluation at the state hospital at this hearing to determine [Finch]’s fitness to 

proceed. This court has held that a trial court cannot determine whether a waiver of 
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that such reference was dicta and not a basis of the court’s decision. On appeal, the 

State argues that this was a determination by the Arkansas Supreme Court that Finch 

was incapable, under Faretta, to waive his right to counsel and proceed pro se.

However, in its objection to the magistrate judge’s findings and 

recommendation, the State objected to the characterization of the Arkansas Supreme 

Court’s determination as dicta on a completely separate basis, arguing that it was a 

factual determination relating to Finch’s alleged obstructionist conduct with no 

reference to the requirement of a “knowing and intelligent” waiver under Faretta. 

The argument of whether Finch knowingly and intelligently waived his right to 

counsel was not presented to the district court, and “this court will not [ordinarily] 

consider arguments raised for the first time on appeal.” Wiser v. Wayne Farms, 411 

F.3d 923, 926 (8th Cir. 2005); see also Barnett v. Roper, 541 F.3d 804, 807-08 (8th 

Cir. 2008). Therefore, because the State failed to present this argument to the district 

court, it has been waived on appeal.

III. 

As the Supreme Court stated in Faretta: 

The right to defend is personal. The defendant, and not his lawyer or 

the [State], will bear the personal consequences of a conviction. It is 

the defendant, therefore, who must be free personally to decide whether 

in his particular case counsel is to his advantage. And although he may 

conduct his own defense ultimately to his own detriment, his choice 

must be honored out of “that respect for the individual which is the 

lifeblood of the law.” 

counsel is knowingly and intelligently made when an examination of a defendant’s 

competency to stand trial had not yet been made.” Finch, 543 S.W.3d at 146. The 

magistrate judge viewed this statement as dicta because, as the record supports, 

Finch had already been determined competent to stand trial.
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422 U.S. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970) (Brennan, 

J., concurring)). 

The judgment of the district court is affirmed. 

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