Second, even if we assume that the phrase should be read to modify the preceding terms, we agree with the BRB and the Court of Appeals that Blundo satisfied the situs test in the same way that Caputo did-by working in an "adjoining . . . terminal... customarily used. . . in loading [and] unloading." The entire terminal facility adjoined the water and one of its two finger-piers clearly was used for loading and unloading vessels.

Accordingly, we conclude that when Congress sought to expand the situs to avoid anomalies inherent in a system that drew lines at the water's edge, it intended to include an area such as the one at issue here. Accord, Stockman v. John T. Clark & Son of Boston, Inc., 539 F. 2d, at 271-272; I. T. O. Corp. of Baltimore v. BRB, 529 F. 2d 1080, 1083-1084 (CA4 1975), modified en banc, 542 F. 2d 903 (1976).

Since we find that both Caputo and Blundo satisfied the status and the situs tests, we affirm.

It is so ordered.

Syllabus

432 U.S.

DOBBERT v. FLORIDA

CERTIORARI TO THE SUPREME COURT OF FLORIDA

No. 76-5306. Argued March 28, 1977-Decided June 17, 1977 The Florida death penalty statute, which was upheld in Proffitt v. Florida, 428 U. S. 242, requires, upon the conviction of a capital felon, a separate sentencing hearing before the trial judge and jury, at which certain evidence relating to aggravating or mitigating circumstances must be admitted. The jury, based on such circumstances, then renders an advisory decision, not binding on the judge, who must then also weigh the circumstances, and if he imposes a death sentence, he must set forth written findings of fact. The judgment of conviction and death sentence are thereafter subject to an automatic priority review by the Florida Supreme Court. Petitioner was convicted in a Florida court of, inter alia, first-degree murder of one of his children. Pursuant to the above statute the jury, after the required sentencing hearing, recommended a life sentence, but the judge overruled that recommendation and sentenced petitioner to death. The Florida Supreme Court affirmed. Petitioner makes three claims based on the constitutional prohibition against ex post facto laws: (1) the change in the role of the judge and jury in imposing the death sentence, in that under the statute in effect at the time of the murder a recommendation of mercy by the jury was not reviewable by the judge, constituted an ex post facto violation because the change deprived him of a substantial right to have the jury determine, without review by the trial judge, whether the death penalty should be imposed; (2) there was no death penalty "in effect" in Florida at the time of the murder because the earlier statute in effect at such time was later held invalid by the Florida Supreme Court under Furman v. Georgia, 408 U. S. 238; and (3) the current statute (the one under which he was sentenced) requires anyone sentenced to life imprisonment to serve at least 25 years before becoming eligible for parole, whereas the prior statute contained no such limitation. Petitioner also makes a related claim that since after Furman and its own decision invalidating the prior death penalty statute the Florida Supreme Court resentenced to life imprisonment all prisoners then under death sentences pursuant to the old statute, and since his crimes were committed prior to Furman, the imposition of the death sentence upon him pursuant to the new statute denied

him equal protection of the laws. He further claims that pretrial publicity concerning his crimes deprived him of his right to a fair trial. Held:

1. The changes in the death penalty statute between the time of the murder and the time of the trial are procedural and on the whole ameliorative, and hence there is no ex post facto violation. Pp. 293–297.

(a) The new statute simply altered the methods employed in determining whether the death penalty was to be imposed, and there was no change in the quantum of punishment attached to the crime. Pp. 293-294.

(b) The new statute provides capital defendants with more, rather than less, judicial protection than the old statute. Death is not automatic, absent a jury recommendation of mercy, as it was under the old statute; a jury recommendation of life may be overridden by the trial judge only under exacting standards, but, unlike the old statute, a jury recommendation of death is not binding, Defendants have a second chance for life with the trial judge and a third, if necessary, with the Florida Supreme Court. Pp. 294-297.

2. The existence of the earlier statute at the time of the murder served as an "operative fact" to warn petitioner of the penalty which Florida would seek to impose on him if he were convicted of firstdegree murder, and this was sufficient compliance with the ex post facto provision of the Constitution, notwithstanding the subsequent invalidation of the statute. Pp. 297-298.

3. Petitioner, having been sentenced to death, may not complain of burdens attached to a life sentence under the new statute which may not have attached to the old. Pp. 298-301.

4. The imposition of the death sentence upon petitioner pursuant to the new statute did not deny him equal protection of the laws. Having been neither tried nor sentenced prior to Furman, he was not similarly situated to those whose death sentences were commuted, and it was not irrational for Florida to relegate him to the class of those prisoners whose acts could properly be punished under the new statute that was in effect at the time of his trial and sentence. P. 301.

5. Absent anything in the record, in particular with respect to the voir dire examination of the jurors, that would require a finding of constitutional unfairness as to the method of jury selection or as to the character of the jurors actually selected, petitioner has failed to show that under the "totality of circumstances" extensive pretrial news media coverage of his case denied him a fair trial. Pp. 301-303. 328 So. 2d 433, affirmed.

REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, and POWELL, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 303. BRENNAN and MARSHALL, JJ., filed a dissenting statement, post, p. 304. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 304.

Louis O. Frost, Jr., argued the cause and filed a brief for petitioner.

Charles W. Musgrove, Assistant Attorney General of Florida, argued the cause for respondent. With him on the briefs was Robert L. Shevin, Attorney General.*

MR. JUSTICE REHNQUIST delivered the opinion of the Court. Petitioner was convicted of murder in the first degree, murder in the second degree, child abuse, and child torture. The victims were his children. Under the Florida death penalty statute then in effect he was sentenced by the trial judge to death for the first-degree murder. The Florida Supreme Court affirmed, and we granted certiorari to consider whether changes in the Florida death penalty statutes subjected him to trial under an ex post facto law or denied him equal protection of the laws, and whether the significant amount of pretrial publicity concerning the crime deprived petitioner of his right to a fair trial. We conclude that petitioner has not shown the deprivation of any federal constitutional right, and affirm the judgment of the Florida Supreme Court.

I

Petitioner was convicted of first-degree murder of his daughter Kelly Ann, aged 9, and second-degree murder of his son Ryder Scott, aged 7. He was also found guilty of tortur

*Howard B. Eisenberg filed a brief for the National Legal Aid and Defender Assn. as amicus curiae urging reversal.

ing his son Ernest John III, aged 11, and of abusing his daughter Honore Elizabeth, aged 5. The brutality and heinousness of these crimes are relevant both to petitioner's motion for a change of venue due to pretrial publicity and to the trial judge's imposition of the sentence of death. The trial judge, in his factual findings at the sentencing phase of the trial, summarized petitioner's treatment of his own offspring as follows:

"The evidence and testimony showed premeditated and continuous torture, brutality, sadism and unspeakable horrors committed against all of the children over a period of time." App. 47.

The judge then detailed some of the horrors inflicted upon young Kelly Ann, upon which he relied to meet the statutory requirement that aggravating circumstances be found:

"Over the period of time of the latter portion of Kelly Ann's short, tortu [r]ous life the defendant did these things to her on one or many occasions:

"1. Beat her in the head until it was swollen.

"2. Burned her hands.

"3. Poked his fingers in her eyes.

"4. Beat her in the abdomen until 'it was swollen like she was pregnant.'

"5. Knocked her against a wall and 'when she fell, kicked her in the lower part of the body.'

"6. Held her under water in both the bath tub and toilet. "7. Kicked her against a table which cut her headthen defendant sewed up her wound with needle and thread.

"8. Scarred her head and body by beating her with a belt and board-causing marks from her cheek, across the neck and down her back-which injuries worsened without treatment 'until the body juices came out.'