Warren E. Burger: Mr. Dailey, I think you may proceed whenever you're ready.
Richard R. Dailey: Mr. Chief Justice, and may it please the Court: This is an appeal from a decision of the Supreme Court of Appeals of West Virginia. It brings into question the validity under the Constitution of a gross receipts tax imposed by the State of West Virginia upon the appellant Armco as a result of Armco's sale of property to customers in West Virginia. The issues presented are two. The first is whether these was a sufficient nexus between the transactions involved here and the State of West Virginia; and the second is whether the tax involved here is invalid because it discriminates against interstate commerce. Armco is an Ohio corporation which for many years has been qualified to do business in West Virginia. During the period 1970 through 1975, the audit periods involved here, its connection with the State of West Virginia was of three sorts. First, it operated a substantial coal mining venture in West Virginia. Second, it operated a small office in South Charleston from which it sold construction and drainage products. And third, it sold to customers in West Virginia products manufactured outside of West Virginia. The tax liabilities owed by Armco to West Virginia from the operation of its coal mines and from the operation of its Charleston office are not at issue here. What is at issue here are sales of three products manufactured by Armco outside the state. Those products are metal buildings, steel and wire rope. These sales have many characteristics in common. Not only were the materials manufactured outside of West Virginia, there was no sales office involved in West Virginia, no resident salesman in West Virginia, no inventory in West Virginia; orders were accepted outside West Virginia, and the goods were delivered to common carriers outside West Virginia. The products themselves were marked in West Virginia in two different ways. The metal buildings were sold to two franchised dealers within West Virginia. There was no solicitation of these sales in West Virginia, simply franchise agreements pursuant to which Armco agreed that the dealers could use the Armco name, and Armco agreed to share advertising expenses. The steel and wire rope products were solicited, sales were solicited within West Virginia. In connection with the steel products, four nonresident salesmen visited West Virginia on an average of once every four to six weeks. And with regard to the wire rope, three nonresident salesmen visited West Virginia every two to four weeks. The tax involved here is an annual privilege tax. It is imposed upon the gross receipts of those who are engaged or continuing within West Virginia in the selling of tangible property at wholesale. The lower court in West Virginia held that the transactions involved here did not have a sufficient nexus to permit taxation under the Due Process Clause and the Commerce Clause. The court of appeals or the Supreme Court of Appeals of West Virginia reversed. My remarks today will address three points. The first point is the conclusion of the court below that the unitary business theory should be applied to find the appropriate nexus here. The second point is the assertion that even if the unitary business theory is not applicable here, there was a sufficient nexus between these transactions and the taxing jurisdiction. And the third is Armco's claim that this tax is unconstitutional because it discriminates against interstate commerce.
Speaker: Mr. Dailey, it would be helpful to me if sometime in your argument you could describe with perhaps some particularity exactly what transactions of Armco West Virginia seeks to tax here. As I understand it, they're not trying to level a gross receipts tax or a privilege tax on all the income from Armco wherever received. They're trying to levy a tax on transactions which they claim, and you deny, have some nexus with West Virginia.
Richard R. Dailey: That's correct, Your Honor.
Speaker: Just sales to West Virginia customers, right?
Richard R. Dailey: That's correct. If the tax is imposed on the gross receipts from sales of wire rope, steel and metal buildings only to customers in West Virginia. This Court has stated that a state tax on income must be applied through an activity with a substantial nexus with the taxing jurisdiction. The court below concluded, on the other hand, that it did not need to examine the connection between these transactions and the State of West Virginia. It reached that result because it applied a unitary business theory. It said that Armco was a unitary business operating under a single corporate umbrella, and that since its activities in the area of coal mining were substantial in West Virginia, that justified them in taxing the gross receipts from these sales without inquiry as to whether there was any nexus between the sales and the State of West Virginia. This is a rather dramatic departure from prior decisions of this Court and, we submit, is wholly inappropriate. The unitary business theory arose in response to a peculiar problem posed by net income taxes. The problem is that it is difficult to figure out how much of a corporation's net income might properly be said to be attributable to any given taxing jurisdiction. Accordingly, under the theory, with which this Court has some familiarity, the total net income of a taxpayer unitary business is peculiar, and then that income is apportioned among the various taxing states on the basis of formulas. The problem of not being able to compute the proper amount of income attributable to any state and thus the occasion for the unitary business theory simply is not present in the case of a gross receipts tax. We know to a penny Armco's gross receipts from West Virginia sales, and there is simply no occasion for the theory. More important, the application here of the unitary business theory would evidently remove all constitutional restraints on the ability of West Virginia to tax Armco sales. Suppose, for example, that West Virginia asserted the right to tax property manufactured by Armco in Ohio and sold to customers in Indiana? Now, I think we would all agree that West Virginia can't do that. And I suspect the reason why we think West Virginia can't do that is that such a transaction has absolutely no connection to the State of West Virginia. But that the connection with the State of West Virginia is precisely what the court below said it didn't have to look at. So on the whole, we suggest that the traditional nexus rules which require a substantial nexus to the activity being taxed has served us well.
Speaker: Yet the Supreme Court of Appeals didn't say that there need be, in this case, no nexus, because it only allowed the taxation of transactions... of sales to people in West Virginia.
Richard R. Dailey: That's correct, Your Honor. And, of course, there is also a state law problem. You must be found, under the state statute, to be engaged in the business of selling at wholesale in West Virginia. So that my example of the sale from Ohio to Indiana is a purely constitutional example, not... not... we would still have to find the business in West Virginia as a Batter of state law.
Speaker: But don't you think that perhaps analysis under apportioned income tax may be somewhat different than analysis under a privilege tax such as this, or do you think they're the same?
Richard R. Dailey: Oh, I think the analysis of the income arising in a jurisdiction is... is the amount of income that's being taxed is quite different in a gross receipts tax case and a net income tax case. As I say, in a net income tax case, it is an accounting impossibility to allocate properly the net incomes of the various taxing jurisdictions, and thus the birth of the unitary business theory. No such problem is presented in the case of gross receipts.
Speaker: If Armco had organized a West Virginia corporation that owned and operated the mine, would there be any basis for any analysis of the unitary system or imposing any tax on the parent corporation?
Richard R. Dailey: I think the question with regard to the sales that are at issue here, Your Honor, would be precisely the same. If a transaction--
Speaker: It would be the same.
Richard R. Dailey: --I think so. If the transaction... if the transactions have a substantial--
Speaker: Do you think West Virginia would assert the same position it asserts here?
Richard R. Dailey: --Oh, I suspect they would. Logically they would. Assuming for a moment that the--
Speaker: Would you... let me pursue that a little further? You think there's no difference in the two situations?
Richard R. Dailey: --Not from the point of view of the issue we're presenting.
Speaker: Of what West Virginia's trying to do here.
Richard R. Dailey: Yes. Assuming for the moment that the application of the unitary business theory is improper, we turn to the question of what else might constitute a sufficient nexus here. One potential source is the very infrequent solicitation of orders by nonresident salesmen who come into West Virginia.
Speaker: And here you'll comment on the pressed steel case.
Richard R. Dailey: Yes, I will comment on the pressed steel case. Standard Pressed Steel involved a Washington tax on gross receipts from sales to a single customer in Washington. Those sales were solicited by a resident of Washington who operated full-time in Washington as an employee of the seller to solicit orders from Boeing, a single customer. The Standard Pressed Steel case involved a continuous presence in the State of Washington, a presence which the Court found contributed directly to the sales in question. We think the same thing was true in the General Motors case; that there was a continuous and important presence within the state that contributed to the production of the sales in question. Here there is no continuous presence at all in the state. Armco's connection with the State of West Virginia so far as these sales go is really flimsy. There's not a great deal to it. And it seems to me that those two cases support our view and carry out the intent of the earlier decision of this Court in the Norton case--
Speaker: Well, that's the closest case in your favor, isn't it?
Richard R. Dailey: --Yes, Your Honor. I believe it is.
Speaker: Because there there was presence for other purposes but not presence for these particular... for the particular sales involved.
Richard R. Dailey: Precisely. And this Court held that you could not, in effect, borrow the nexus from the activities that were clearly being carried on within the state and attribute that nexus to the sales in question.
Speaker: What do you think the theory of Norton was? Wasn't it... it reads to me as though it were a commerce theory rather than a due process theory.
Richard R. Dailey: It's difficult--
Speaker: Or a nexus theory.
Richard R. Dailey: --It... well, it clearly is a nexus theory. As to whether it should be thought of as a due process case or a Commerce Clause case, it is difficult to tell.
Speaker: Well, if it were a Commerce Clause case, you're kind of in trouble, aren't you? You would rather read it as a due process case.
Richard R. Dailey: We are content with reading it either way.
Speaker: Are you?
Richard R. Dailey: Yes. Yes, we think it supports us no matter which provision we're under.
Speaker: Mr. Dailey, what economic difference do you think there really is between a local sales tax borne by local buyers and a business income tax calculated on the basis of sales made to buyers in the taxing state, which is the distinction Norton tried to draw.
Richard R. Dailey: Yes.
Speaker: Do you think there's an economic difference?
Richard R. Dailey: Yes, Your Honor. We do think there's an--
Speaker: Well, what is it--
Richard R. Dailey: --Economic difference. In order to conclude that, let us say, a use tax imposed on a local purchaser is... is comparable to a gross receipts tax imposed on the seller, you have to make a couple of assumptions. One is that it was sort of... it's a matter of indifference to a state legislature whether they enact a use tax on the local buyer or a gross receipts tax on the foreign seller. I don't believe that assumption is warranted. I think that legislatures find a use tax to be a very politically responsive tax imposed on local residents.
Speaker: --Well, I think the... Norton talked about either a sales tax or a business income tax.
Richard R. Dailey: Yes. And in order... it did, you're correct. And in order to find those comparable, you must also assume that in the case of a gross receipts tax imposed on a seller, to make them comparable you must assume that the seller is able to pass on the burden of that tax.
Speaker: Well, we know that he is, don't we?
Richard R. Dailey: I don't know that we do know that, Your Honor.
Speaker: Well, as a matter of pure economics, how could it be otherwise?
Richard R. Dailey: Well, it could be otherwise if the market... the sales price is a price negotiated in some sort of bargaining, and the extent to which a seller is able to pass on a gross receipts tax and place the burden of it on his buyer seems to me to be a factor of a variety of economic considerations.
Speaker: Well, most courts have just recognized the ability to pass it on as a matter of something you can take judicial notice of.
Richard R. Dailey: Well, here I think it's particularly important that we not assume that the tax can be passed on to the purchasers, because the basis of the discrimination argument, which is my final point, is that local manufacturers in West Virginia are exempt from this tax, which may make it a little bit--
Speaker: On their wholesale sales.
Richard R. Dailey: --Yes, yes.
Speaker: But, of course, Armco isn't affected by that. Armco's just importing from out of state and doesn't manufacture--
Richard R. Dailey: That's correct.
Speaker: --The particular products at issue.
Richard R. Dailey: That is correct. Armco does not manufacture. But Armco is selling in competition with those who do manufacture.
Speaker: And they pay a higher tax?
Richard R. Dailey: I beg your pardon?
Speaker: And the people who manufacture within West Virginia and sell their products are, in effect, paying a higher tax than Armco who is importing from out of state.
Richard R. Dailey: Well, it's paying a higher tax on a different activity. It is exempt--
Speaker: Yeah. But they're paying more money; therefore, they presumably have to charge their customers more. So Armco has an advantage there, doesn't it?
Richard R. Dailey: --I don't think so, Your Honor, because... I'm willing to assume that manufacturers in West Virginia pay a variety of taxes, not only a tax on the gross receipts from manufacturing but property taxes and no doubt a variety of taxes to which Armco is not subject at all because it manufactures--
Speaker: But as far as the excise tax burden that we know about from the briefs, it would appear that manufacturers within West Virginia selling their products there pay a higher tax than Armco.
Richard R. Dailey: --That is correct. Armco does no pay any manufacturing tax in West Virginia.
Speaker: Right. Nor any real estate tax.
Richard R. Dailey: No. Nor any sales tax. That's correct. It does, I might say as an aside, pay a considerable amount of tax in Ohio, but in West Virginia, no, it does not.
Warren E. Burger: We'll resume there at 1:00, counsel. You may resume.
Richard R. Dailey: Mr. Chief Justice, and may it please the Court: I would like to return for a moment to Armco's claim that the West Virginia tax on wholesale sales is unconstitutional because it discriminates against interstate commerce. The starting point here is the statute itself which imposes the wholesale tax on manufacturers operating outside West Virginia, but exempts local manufacturers from paying the tax. So far, the discrimination seems clear. Now, the saving grace is said to be the local tax on manufacturing which is imposed on manufacturers in West Virginia, but obviously not imposed on those outside West Virginia. These are, however, entirely different taxes imposed at different rates, and most importantly, imposed upon different activities. The manufacturing tax does not compensate for the tax on wholesale sales in the same manner, for example, that a use tax compensates for a sales tax. And I think the decisions of this Court make it clear that only in the case of taxes which complement or compensate for each other are we to consider them together in judging discrimination. Mr. Chief Justice, I would like to reserve the remainder of my time for rebuttal.
Warren E. Burger: Very well. Mr. Digges.
Robert Digges, Jr.: Mr. Chief Justice, and may it please the Court: I believe a brief explanation of the nature of West Virginia's business and occupation privilege tax system will help clarify the issues raised in this appeal. West Virginia's tax is a typical privilege tax levied upon engaging within the state in certain business activities, and interstate when it is applied to an interstate activity, the subject of the tax is the in-state aspects of that activity. The measure of the tax, however, is the full gross proceeds from the completed business. The subject of the tax at issue in this appeal is the business of selling and not the sale itself. Selling activities taking place within West Virginia are the taxable incident. In form, the West Virginia business and occupation selling tax is virtually identical to the State of Washington's tax levied in General Motors v. Washington and in the Standard Pressed Steel case. I would like to briefly review Armco's in-state activities--
Speaker: Were there differences for the local taxpayers in those cases?
Robert Digges, Jr.: --Excuse me, Your Honor?
Speaker: Were there differences, different tax rates for the domestic corporations in those other cases?
Robert Digges, Jr.: I'm not sure about the rates or the taxes involved. The tax was levied on engaging within the business or within the state in the business of selling in both... in both instances. I would like to review Armco's in-state activity for a moment. Armco's, as discussed, business activities are divided into... on a divisional basis with each division making products and selling only the products made by that division. Armco's Steel Division employed four salesmen within West Virginia, two each from its Pittsburgh and Cincinnati offices. Such salesmen systematically and repetitively covered the State of West Virginia soliciting business. The salesmen were within the state on an average of once every four to six weeks with one salesman making as much as two monthly visits. The duration of the salesmen's in-state solicitation activities is not in the record. It could have been only one day, or it could have been as long as two weeks. It's just simply not stated. The in-state activities of the Steel Division were described by Armco's witness, Mr. Geary, the Cincinnati district's sales... the Cincinnati district sales manager. I'd like to take this opportunity to clear up a misunderstanding which has resulted from Mr. Geary's testimony. Mr. Geary stated that in 1976, 77 percent of the sales to West Virginia customers from his office, the Cincinnati district of the Steel Division, were solicited outside of West Virginia. Mr. Geary did note that even those sales did have some in-state aspects such as coming in into the state to investigate complaints associated with the sales and servicing of the accounts. The circuit court, which is not the finder of fact in tax appeal cases in West Virginia, misinterpreted Mr. Geary's testimony and concluded that 77 percent of all of Armco's sales at issue from all of its divisions were solicited outside of the state. We believe that conclusion to be clearly erroneous.
Speaker: Well, it really doesn't make any difference to your argument, though, does it?
Robert Digges, Jr.: Yes, Your Honor. We... we are focusing upon the solicitation activities themselves primarily as providing the nexus in this case.
Speaker: And not just the sales, not just the delivery of the goods.
Robert Digges, Jr.: Oh, no, Your Honor. The... the activities associated with procuring the sales.
Speaker: You mean you wouldn't be making this argument about a gross receipts tax at all if there were no solicitation within the State of West Virginia?
Robert Digges, Jr.: No, Your Honor, I don't believe we would. I believe in that circumstance if only all there was in the State of West Virginia was delivery that we would not tax it.
Speaker: And you think constitutionally you'd be forbidden to?
Robert Digges, Jr.: I believe we would, Your Honor. We--
Speaker: Under Norton, is that it?
Robert Digges, Jr.: --No, Your Honor. We simply... we feel like Norton was... was decided long enough... along those lines.
Speaker: So you think that to hold for West Virginia we must acknowledge, as you would put it, that Norton is overruled.
Robert Digges, Jr.: Oh, no, Your Honor.
Speaker: No?
Robert Digges, Jr.: I think Norton can be distinguished in this matter. I think Norton dealt with a situation of whether an interstate activity was significantly or directly associated with an intrastate activity, and at that point and at that time it had to be in order to be taxable. However, now since interstate commerce can be directly taxed, I feel that that aspect of Norton is no longer practical. I feel Norton--
Speaker: Well, so it's just not good law any more, Norton.
Robert Digges, Jr.: --No. I feel Norton is good law as with respect to Mr. Dailey's hypothet in which West Virginia would attempt to tax sales in the State of Indiana. Certainly if there are no in-state selling aspects, due process requirements of Norton would preclude the taxing--
Speaker: But Norton... I take it that Norton would not come out the same way today in your view.
Robert Digges, Jr.: --I don't think Norton would have addressed the same issue. Norton... the issue of whether or not it was associated with an in-state activity wouldn't have been relevant. If this Court... this Court may look at it as to whether that... the activities in Norton were sufficient in and of themselves.
Speaker: Wouldn't you say that if you applied Norton exactly the way it's written that you would lose?
Robert Digges, Jr.: No, Your Honor. I think that there are factual distinctions between this instance and Norton. Norton dealt with only mail order sales, in the first order. They did, however, in the dicta of the case discuss the McCloud case, and in that case McCloud stated that purely itinerant drummers, if that was the only activity within the state, would not afford the jurisdiction to tax. However, we feel that in this case there is something above and beyond that; that this solicitation is a repetitive, continuous type of solicitation. And... I'll get into it in a moment... we also feel that there is something above and beyond just pure solicitation, and in that respect we do rely to some extent on the full scope of Armco's activities within West Virginia.
Speaker: How many of these people were residents of West Virginia?
Robert Digges, Jr.: None, Your Honor. None of the individuals involved in the solicitation of the sales at issue. Armco did have resident salesmen but of another division.
Speaker: Well, I take it they're franchised dealers in one... at least one of these products could put up... could put up their name.
Robert Digges, Jr.: Yes, Your Honor. Excuse me. Those also were... were involved in the state. However we--
Speaker: And those local franchised dealers who weren't agents, but nevertheless, they certainly solicited the sales of Armco products, I suppose.
Robert Digges, Jr.: --They did, Your Honor, but of course, their sales to ultimate customers would have been independently taxed.
Speaker: Exactly.
Robert Digges, Jr.: So that's not... we're not concerned with that. But to review again on the 77 percent basis, as I said, we feel that the solicitation aspects are a significant part of the business of selling in this case. And we feel the record plainly demonstrates that that 77 percent figure which has been presented to this Court is inaccurate; that it only applied to the sales of the Cincinnati office, and it only applied to the 1976 year. And since 1976 was outside the audit period, that estimation isn't relevant to this case.
Speaker: Well, are we supposed to engage in some independent factfinding here based on testimony in the record?
Robert Digges, Jr.: No, Your Honor. I believe that the administrative decision is the proper factfinder and that the decision found simply that Armco did not offer any evidence to support any conclusion other than that the sales at issue were prompted by in-state solicitation.
Speaker: Well, we should... we should not accept what... what one of your courts said the record showed?
Robert Digges, Jr.: Yes, Your Honor. You should not accept what the circuit court... I think it was a clear misinterpretation of the facts at hand. And by examination of the joint appendix, I believe that that will clearly come out. Mr. Geary also testified regarding Union Wire Rope Divisions of Armco's and their activities within the state. They were again similar to the Steel Divisions. Three salesmen operating from Pittsburgh, Ashland and Greensboro, North Carolina solicited business within the state on an average of once or twice a month. Again, the duration of their visits is omitted from the record. Armco's Metal Products Division during the audit period maintained an office in South Charleston, West Virginia from which two salesman conducted selling activities statewide. They sold all of the products of the Metal Products Division except metal buildings, which were handled by franchise agents. Mr. Geary's testimony plainly establishes that with regard to all of the salesmen of all of the divisions sent into West Virginia, they were sent in for the purpose of getting business. And we contend that that would necessarily include determination of a customer's wants and needs, to some extent were customized products made for special uses for the customers, checking customer satisfaction with previous orders, and soliciting future business. The State of West Virginia submits that Armco, pursuant to such activities, clearly was engaging in the business of selling in West Virginia, and that such activities furnished the state sufficient nexus for their taxation. Armco does not contend that its business activities do not constitute engaging in the business of selling. However, they feel that those activities, like in Standard Pressed Steel, are too thin and inconsequential to satisfy constitutional nexus tests. Naturally, the State of West Virginia disagrees with that proposition. We feel that this Court's decisions have clearly held that the business of selling's taxable event to be those activities resulting in the establishment and maintenance of the sales taxed. In the General Motors case versus Washington, the operating incidence of the selling privilege was held to be taxable activities resulting in the establishment and maintenance of sales and those which make possible the continuance of valuable contractual relations. Similarly, in Standard Pressed Steel, the business of selling was viewed as those activities which wake possible the realization and continuance of valuable contractual relationships. We, therefore, conclude that in both instances solicitation activities were the most significant aspect of the business of selling, and where they occurred evidenced where the location or where the state that had the jurisdiction to tax. The State of West Virginia submits that Armco solicitation activities were the taxable event of their selling operations, and since such solicitation activities occurred in West Virginia, nexus is clearly supplied.
Speaker: Why shouldn't just the sale to people in West Virginia be enough of a nexus?
Robert Digges, Jr.: We feel like... we feel, Your Honor, that... that there has to be some activity. This is a privilege tax on the business of selling and not on the sale itself.
Speaker: And why do you feel there has to be more than the sale in West Virginia, to a West Virginia customer, that is?
Robert Digges, Jr.: We feel that due process requires some minimal activity relating to the taxable--
Speaker: And that's based on... and you think that the minimal activity cannot be the sale in West Virginia. Is that because of Norton?
Robert Digges, Jr.: --Well, the sale, Your Honor, technically could occur outside of the state, transfer of title could occur outside of the state, acceptance of the order could occur outside of the state. So just simply the fact that a West Virginia resident consumed the product I don't think would be sufficient. I think--
Speaker: You're basing that on Norton or what?
Robert Digges, Jr.: --Just on general due process laws, Your Honor. I just... our concept of what the constitutional nexus requirements are. We feel that the activity must be--
Speaker: I take it you don't have much confidence in Norton. You seen to evade it all the time.
Robert Digges, Jr.: --I think, as I set out in my brief, that I, at least personally, believe that Norton was... was designed for a different question than is involved here. And still, though, I believe that Norton can be... can be distinguished from this case; and to find that West... that the appellant... or Armco's activities within West Virginia are sufficient for their taxation I think can be done without overruling Norton.
Speaker: Are you in any way defending your highest court's application of the unitary business principle?
Robert Digges, Jr.: Yes, Your Honor. I'll address that in full in a moment. But in basically one of two ways we feel that our court was... was correct or justifiable in... in looking at least... I don't know if you want to term it the unitary concept, at least possibly a form of the unitary concept, at the full scope of Armco's activities within West Virginia. First of all, we feel like the full scope of activities within the state meets certain compliance problems that may have been the basis of the requirement of a fixed presence. And secondly, we feel that nexus is a fact-bound or... is a fact-bound problem, and we believe that in certain factual circumstances such as the General Motors case where activities of the taxpayer are so mingled that it's impossible to determine which activity did result in that sale, then only by looking at the bundle of corporate activity can... can you determine whether there is sufficient nexus. However--
Speaker: Do you think you need to rely on the unitary concept to get the result you want in this case?
Robert Digges, Jr.: --No, Your Honor, I don't believe we do. I believe that the solicitation activities in and of themselves more than satisfy the nexus requirement.
Speaker: I mean why should we muddy up what is apparently a fairly simple concept by trying to import a concept developed by the courts for an income tax?
Robert Digges, Jr.: I... I... I don't believe that you should, Your Honor. And as I said in this, I don't feel that it's necessary. The--
Speaker: Has this Court ever done it in a non-income tax case before?
Robert Digges, Jr.: --I believe... the... the General Motors case has been analyzed in terms of the unitary concept in other cases. I don't quite to this point understand exactly in what context that was used. However, I feel like that the entire business activities of the taxpayer in... in General Motors were looked at in order to... in order to determine whether the sufficient nexus existed, and as such, more than just the activities associated with specific sales was held to be the taxable... to... to provide taxable nexus.
Speaker: Well, what if there were no physical solicitation activities in West Virginia but there were newspaper ads, television ads, and they just answered... they just answered the mail and the telephone calls and filled those orders and shipped in the goods? Why wouldn't that be enough under your theory? The solicitation is certainly within West Virginia. The West Virginians read it in the paper, saw it on television in West Virginia.
Robert Digges, Jr.: Well, that may be an extension of this, Your Honor. I don't think it would be particularly warranted in this case. I believe the physical presence, the face-to-face relationship that's been evidenced, this continuous, repetitive solicitation is far different than placing an ad. And it satisfies the... the minimal process that the person, property or activity, at least a portion thereof, occur in the state.
Speaker: You don't think... you don't think the legality of a compensating use tax has anything to do with this case?
Robert Digges, Jr.: Yes, Your Honor. I feel that it has something to do with the discrimination portion of the... of the case.
Speaker: But not... not this... not this part of the case.
Robert Digges, Jr.: As to whether or not nexus is supplied? No, Your Honor, I... it's not within--
Speaker: Because you do collect out of the wholesale transaction the compensating use tax, an amount of money from a sale that would involve only delivery and no solicitation, only delivery in West Virginia.
Robert Digges, Jr.: --Yes, Your Honor. Well, I believe in the National Geographic case that this Court perhaps has stated that... that was is right in a... in a sales and use tax setting may not be correct in a gross proceeds privilege tax. If the Court would want to extend that principle, certainly the State of West Virginia would be in favor of it.
Speaker: You're very welcome, very welcome. Mr. Digges, do I correctly understand that if you had the facts such as Justice White described with nobody actually in the state but advertising across the borders and so forth, just as a matter of interpreting your own statute, it wouldn't apply, would it?
Robert Digges, Jr.: Yes, Your Honor. It would not apply. They would not be engaging within the business of selling in the state.
Speaker: But the question would be whether there'd be a constitutional difference in the event your statute did cover it.
Robert Digges, Jr.: Yes, Your Honor. It--
Speaker: And you--
Robert Digges, Jr.: --I feel that there might be a due process constitutional nexus difference. To sum up, I believe that Armco's systematic and repetitive solicitation activities were essential to the establishment and maintenance of its sales to West Virginia customers, and the sales at issue, at least at the levels made, would not have existed but for Armco's activities within West Virginia. I believe the only difference between this case and the factual circumstances of the Standard Pressed Steel case is the lack of a fixed, purely local aspect of the sales upon which to base the tax. The State of West Virginia believes that the lack of such a permanent local activity should not be controlling in this case. The local activity requirement can be traced to the Norton and McCloud cases, as... as we discussed. Such cases held that solicitation activities by themselves did not provide the local grip on the seller sufficient to bring the taxation within the state's power... bring the activity within the state's taxing power. The State of West Virginia submits that a re-evaluation of this fixed presence principle is called for in light of intervening decisions. Complete Auto Transit v. Brady announced this Court's intention to judge state taxes' validity according to their practical economic effects, and the Appellee submits that in practical terms solicitation activities supply the same nexus as does an in-state sales operation. In his dissent in the McCloud case, Justice Rutledge stated that "Regular, continuous, persistent solicitation has the same economic and should have the same legal consequences as does maintaining an office for soliciting or even maintaining a place of business where goods are shipped for delivery to the buyer. " West Virginia believes that Justice Rutledge's observation is consistent and accurate with modern economic realities. This Court should examine the results of Armco's in-state sales activities and not where their personnel reside. West Virginia also believes that this Court's elimination of the direct versus indirect distinction with regard to privileged taxation of interstate commerce also plainly supports their position that the solicitation activities by themselves can supply the nexus necessary to tax. In the Washington Stevedoring case, this Court held that since interstate commerce was subject to direct taxation, an activity which was essentially a part of interstate commerce could supply the nexus necessary for its taxation. We believe that the same logic is equally applicable to solicitation activities. Those such activities are essentially a part of interstate commerce. Their local aspects should be viewed to determine whether the nexus necessary is supplied. It is, therefore, Appellee's position that Armco's in-state solicitation activities, which are essential to the establishment and maintenance of its sales to West Virginia customers, furnish the constitutional nexus to justify the State of West Virginia's taxation. If, however, this Court feels that in addition to solicitation activities a fixed local presence is required, the Appellee believes that such requirement is met in this case. West Virginia contends that the local presence requirement was based upon the Court's recognition of possible compliance costs burdens which could discourage interstate commerce. Small businesses who only solicit within a state might withdraw such solicitation if compliance costs outweighed potential profits.
Speaker: --Mr. Digges, if other states had a similar tax scheme, I assume what would happen is that a manufacturer, a local manufacturer selling in West Virginia would pay only the manufacturing tax, is that right? But if he wanted to sell out of state, he... he'd be subject to the manufacturing tax and a sales tax.
Robert Digges, Jr.: The local manufacturer in West Virginia would only pay the manufacturing tax, and if he sold out of state, he would be subject to whatever tax the other states--
Speaker: Right. Assuming other states had a similar tax.
Robert Digges, Jr.: --Similar system. Yes, Your Honor.
Speaker: So wouldn't West Virginia, if that's true, really be taxing exports, and would that violate the Commerce Clause?
Robert Digges, Jr.: I don't... I don't follow Your Honor's question too well. I think that West Virginia's only trying to tax the manufacturing activity within their state. I don't believe that the--
Speaker: Well, but there's a difference. Now, a manufacturer who wants to ship goods across state lines would end up paying two taxes presumably, and the one who just manufactured locally would pay one. So under that scheme would West Virginia be taxing the exports?
Robert Digges, Jr.: --I don't believe, Your Honor, I don't believe they would be. I... I think--
Speaker: Discriminating?
Robert Digges, Jr.: --No, Your Honor. I don't believe that's a type of discrimination that this Court has determined to be... to be a violation of the Constitution. I think that that is only potential. We... we don't know... very few states have a gross receipts tax system such as West Virginia's. The fact that they may possibly be subject to a... to a selling tax in another state is beyond the control of the State of West Virginia. And I think this Court's decision in the Henneford case long ago established that we didn't have to establish our tax system in response to the possibilities of other tax systems.
Speaker: Mr. Digges, let me follow through on that general area. Viewed in isolation, the West Virginia tax is discriminatory, isn't it, because the... the local manufacturer is exempt from the tax that Armco has to pay?
Robert Digges, Jr.: Well, I'm not certain that... that again that's the type of discrimination that this Court... this Court has found to be improper under the Commerce Clause. In the Henneford case again--
Speaker: But it is discriminatory.
Robert Digges, Jr.: --In effect, if that hypothetical situation existed, then an in-state--
Speaker: Well, it does exist.
Robert Digges, Jr.: --Excuse me?
Speaker: It does exist, doesn't it? One local manufacturer doesn't pay a tax that Armco does. Now, that's a difference in--
Robert Digges, Jr.: A different treatment... to the extent that any different treatment is discriminatory, I agree it's discriminatory.
Speaker: --How do you justify it?
Robert Digges, Jr.: First of all, as I said, in the Henneford case there the same situation was presented in which one commodity could be subject to both a sales and use tax. Since it wasn't, this Court refrained from determining whether or not that multiple taxation would be discriminatory. However, the language clearly said that... that this Court was not sure that that type of activity would be discriminatory, but it was going to wait until that... that situation presented itself actually before it was going to make that... make that determination. I think that that's what's called for in this case. The State of Washington has, as I stated, a privilege tax system virtually identical to West Virginia's, and its system of credits in that state brings about a practical effect which is virtually identical to the... to the effect discussed in the State of West Virginia system.
Speaker: Well, suppose your... your manufacturer's tax were 1 percent instead of, what is it, 88 percent?
Robert Digges, Jr.: Yes, Your Honor.
Speaker: Would the case be any different?
Robert Digges, Jr.: Certainly it would. We would then be enticing people to come into the state to perform a manufacturing activity and, in effect, lowering their total tax burden. We're not doing that.
Speaker: Well, are we to decide cases up here according to the rate that West Virginia imposes?
Robert Digges, Jr.: I believe that in cases such as the Boston Stock Exchange case and the Maryland v. Louisiana case that, in effect, the... the total tax burden in a dollars and cents fashion was... was the controlling aspect of the case.
Speaker: I think this gets you into the situation that Justice O'Connor proposed, that when you take the other states' taxes into consideration, you're almost bound to end up with discrimination.
Robert Digges, Jr.: Yes, Your Honor. And that was my... my point about the Washington State tax. Their practical effect of their tax is the same as West Virginia's. Rather than exempting the wholesale sale of taxes that have already been paid under manufacturing, the--
Speaker: Well, suppose... suppose the practical effect weren't the same? And wouldn't... doesn't the practical effect depend on rates, comparative rates? And again I get back to suppose your tax were 1 percent instead of 88 percent?
Robert Digges, Jr.: --Again, I believe that that would be a discriminatory pattern, because we would entice people to come into... through the use of the wholesale sales exemption we would entice people to come in the state and perform more business activities and, in effect--
Speaker: Then where... where is the dividing line between 1 percent and 88 percent? Forty percent?
Robert Digges, Jr.: --Twenty-one percent I would... 26 percent in this. No, Your Honor, I... I think that's... that as long as they could come into the state and receive no less of a tax burden, then I don't believe that that would be any... any influence upon them to withdraw an interstate activity and make it a purely intrastate activity.
Speaker: Well, doesn't the problem come from the interaction of the manufacturing tax and the... the tax on the sale price?
Robert Digges, Jr.: Yes, Your Honor. Exactly.
Speaker: And that's the difficulty. West Virginia could eliminate the problem by reducing its manufacturing tax on those who sell out of state or by eliminating the tax on the sale in-state, but it wants both. And so that leaves you with some kind of an interaction sort of a problem, doesn't it?
Robert Digges, Jr.: Well, I believe that the state should be allowed to compensate in the manner it wishes and to compensate for sales actually made in West Virginia, to note that that is part of the manufacturing process is the sale of the product, and to compensate for an actual burden imposed by West Virginia law and choose not to compensate for a potential burden out of state. And I don't think that that... that's an improper handling of the situation. However, again back to the State of Washington, as... as you said, it's the interaction between the two taxes. In the State of Washington you would have the exact same interaction. A person who manufactures in Washington does not have to pay a manufacturing tax if he pays the wholesale sales tax. So, in effect, in a hypothetical situation described by Armco, if an individual was paying an out-of-state manufacturing tax and then was... and sold his goods in either the State of Washington or the State of West Virginia, he would be subject to tax under two privileges, whereas the in-state manufacturer-wholesaler would only be subject to tax under one privilege. It's the exact same question. This Court examined that situation in both the Standard Pressed Steel and the General Motors cases and determined that no multiple burden actually did exist, and therefore, that this Court was not going to... not going to examine that issue until an actual multiple burden was... was shown. And, again, Armco's situation is entirely hypothetical. They... they don't pay any taxes in the State of Ohio on the manufacture of this product; and so their situation is just hypothetical and one that this Court should not address at this time to--
Speaker: Well, we're certainly going to have to address the issue, and to arrive at your result, it seems to me like you have to do away with the discrimination in some manner. And you say well, it's because the local manufacturer pays a manufacturing tax.
Robert Digges, Jr.: --I think that that's... under... under the Caskey case it's a type of compensating tax, and I don't believe that the compensation, again, could be upset by the fact that hypothetically someone outside the state may have to pay another case on it. But, again, I don't... I don't see... see the relevance of this under this Court's decisions.
Speaker: I'm not sure I understand you. Are you saying it's totally irrelevant whether there's a manufacturing tax imposed in Ohio, for example? Assume that's where its plants are.
Robert Digges, Jr.: If it... if... if that was... were the case and that was shown, no, then that would not be irrelevant.
Speaker: So the constitutionality of the West Virginia tax depends on what Ohio does?
Robert Digges, Jr.: It depends on whether the taxpayer before this Court can show an actual multiple burden.
Speaker: Right. But I mean assuming he proved all the relevant facts, then the critical fact then would be what the Ohio legislature decided to do with respect to the manufacturing tax--
Robert Digges, Jr.: Well, again, Your Honor, I... I... I don't know that that would be the type of discrimination that this Court... this Court has... has outlawed. As I said in the Henneford case, the sales versus use distinction was that... that possibly because it would be subject to two taxes, whereas a purely in-state activity would only be subject to one, the Court said that that necessarily wasn't a type of discrimination. In several of this Court's decisions they've said that the vagaries of one state's taxing scheme will not be forced to concede to another's, such as the... I believe the Mobil Oil case in which it was whether or not the State of New York had the right to tax the dividends, all of the dividends, whereas there was an apportionment problem. Again, this Court said well, that may be the case, but it's not shown here, and one system shouldn't necessarily have to... have to... have to take into recognition what other states are doing. Thank you, Your Honor.
Warren E. Burger: Do you have anything further, Mr. Dailey?
Richard R. Dailey: May it please the Court: What the nexus issue I think comes down to here is this: We have only the most tenuous connection between the transactions being taxed and the State of West Virginia. A handful of salesmen without authority to enter into any contractual relationships visiting West Virginia on a very infrequent basis, to tax these sales comes perilously close, I suggest, to the imposition of a state import duty. West Virginia is attempting to charge for access to its market and so is trying to tax values realized outside the state. This is precisely the type of trade barrier that the Commerce Clause was designed to prevent. Armco submits that the traditional nexus rules have served us well and should be retained. We should require a continuous local presence within the taxing jurisdiction to support the imposition of an unapportioned gross receipts tax on sales. Thank you, Mr. Chief Justice.
Warren E. Burger: Thank you, gentlemen. The case is submitted. We'll hear arguments next in Franchise Tax Board against the United States Postal Service.


Earl Warren: Number 521, Andrew R.Mallory versus United States of America. Mr. Bryant.
William B. Bryant: Mr. Chief Justice, Associate Justices, may it please the Court. The case for the Court, Andrew Mallory versus United States, we believe presents three important questions. The first, whether or not the lower courts in the District of Columbia Circuit properly adhered to the pronouncements of this Court in McNabb versus United States and reiterated in Upshaw versus United States relative to alleged confessions of the petition. Number two, I believe that the important question is whether or not the consent allegedly given to the police by the petitioner herein for the search of his home for certain items of clothing while he was arrested and then the police headquarters measured up to that standard of voluntariness which the federal jurisdiction has adopted for itself. And thirdly, whether or not the trial court's comment in answer to a question by the jury after deliberating some four or four and a half hours about the fate of the petitioner in the event that the jury did not impose a death penalty, was proper under the circumstances. Now, the factual picture which -- out of which these questions arises is briefly as follows. On April 7th, 1954, a woman was allegedly raped in the 1200 Block of 12th Street Northwest in the District of Columbia in the basement of an apartment house in which she lived. The next day, at about 2:30, the petitioner was arrested in the Northeast section of Washington D.C. and taken to police headquarters at 13 Indiana Avenue, Northwest. Immediately upon his arrival at the police headquarters, he was interrogated in the so-called identification room at the police headquarters. The arrival was pitched at about 3 o'clock in the afternoon. Here, the petitioner was questioned by at least seven or eight officers of the Sex Squad between 3 o'clock and shortly after 4:00 that he -- and then some times between 4:00 and 5:00 during that questioning, the petitioner denied any implication in the crime. Some times between 4 and 5 o'clock, the police inquired of the petitioner and his two nephews, the children of his half brother who was a janitor of the apartment which the alleged crime occurred and who also in custody. The police inquired as to whether or not they would take the lie detector test. Petitioner is alleged to have agreed to take a lie detector test along with the other two suspects. The man who was an expert at giving the examination was not immediately available and there was a waiting period of -- from about some time between 4 and 5 to about 7 o'clock. The officer eventually arrived, and after exposing the other two men who were in custody to the lie detector apparatus and the testing that goes on with it, the petitioner was called into the room some 120 feet away from the room in which he had been all the time. And there, in the lie detector room, which is a small room about the size enough to accommodate the machinery and the examiner and the -- and the subject, he was given the so-called “lie detector test.” His questioning immediately before -- questioning during the -- during the examination at which time he was attached to the machinery by various wires and hoses and other attachments. After the examination on the machine, he was subjected to still more questioning and some time between 9:30 and 9:45 p.m., according to the examining officer, he made certain oral admissions which implicated him in the crime. Thereupon, the examining officer called the two officers of the Sex Squad who were in charge of the case so to speak and indicated to those officers that the petitioner wanted to make a statement to them. At that time, the oral admission originally made to the examiner, speaking of the lie detector machine technician, were allegedly repeated to officers (Inaudible) I believe. After the admissions were made, one officer to another said, “Try to get a hold of the Commissioner" having reference to the United States Commissioner and then for the District of Columbia. A call was put through to the commissioner at his home and he was at that time unavailable, that was sometimes after 10 o'clock p.m., the first mention of the commission. Thereupon, the petitioner set out under police supervision a written statement embodying what's he had said to the officers are. And immediately following the written statement, there was also a written consent to the officers to go to the premises and search certain areas and take from that area items or clothing. The confessions are -- unwritten were introduced an evidence over objection. The items of clothing which had been procured as the result of the so-called “consent to search” and which had been subjected to certain analysis by the Federal Bureau of Investigation and which should be -- reveal certain culminating characteristics were introduced to the evidence. The jury was instructed, when he took the case, in the usual fashion except that when it got down to the point of the verdicts by virtue of the peculiar characteristic of the District of Columbia statute which allows the jury to add to the verdict of guilty if they so find the defendant who's charged with rape, guilty. He might add the words with the death penalty. Because of that, Judge Holtzoff read to them the following, and I -- I think that in these circumstances, I should read the charge because it is critical. Beginning on page 5 -- page 105 of the record, if the Court please, the fourth paragraph beginning with “If you find the defendant guilty, you still have one more punishment”, the punishment provided by law for the crime of rape is either a death penalty or imprisonment for a term of years. The decision, whether the death penalty should be inflicted, is made by the jury. The jury has the right in the function of determining whether or not the death penalty should be inflicted on a rape case. Consequently, if you find the defendant guilty as charged, you must then decide also whether the death penalty should be imposed. If you unanimously reached the conclusion that the death penalty should be inflicted, then you may add to your verdict of guilty the words “with the death penalty”. In such case, and such as your verdict, it will then be mandatory on the Court to impose the death penalty. The Court will have no discretion under that. On the other hand, if you find the defendant guilty but you do not unanimously reach the conclusion that the death penalty should be inflicted, then your verdict should be simply guilty as charged without any addition to it. In that event, the defendant will be subject to imprisonment which the Court will impose but will not be subject to the death penalty. Whether the death penalty, should or should not be imposed, in case you find the defendant guilty is entirely within your discretion and you have a right to consider any circumstances or weigh in his considerations in reaching the conclusion on that point. That is the critical part of the Court's charge in the light of the question we raised here. If the Court please, after deliberating for something over four hours, we've indicated, the jury indicated that it wanted some explanation or some instructions from the Court and sent the Court a note which asks several questions. The Court deals with this note on page 106 of the record, the Court called counsel to the bench and showed there's a note indicating that the jury had asked one, “Have we other choice of verdicts than this four?”
Felix Frankfurter: Before -- may I?
William B. Bryant: Yes, Your Honor.
Felix Frankfurter: Excuse me for interrupting you --
William B. Bryant: Yes sir.
Felix Frankfurter: -- but if we had no more than that what you read on page 105 Mr. Bryant, have you or have you not a quarrel with that -- that portion of the initial charge made by the Court?
William B. Bryant: I have no quarrel with the general brief.
Felix Frankfurter: All right, that's -- that's not all right, difficulty arises on the response to the subsequent questions.
William B. Bryant: Yes sir. The subsequent questions, I believe, were outlined on page 106 of the record, have we other choice of verdicts than these four. One, guilty with death penalty. Two, guilty as charged. Three, not guilty by reason of insanity. Four, not guilty. Now, the Court answered that question. Now, those four are the only possible verdicts, no other verdict is possible. Then the Court dealt with question number two. Question number two was, on number two above having reference to guilty as charged, "Can we the jury be assured that the defendant legally be imprisoned for the remainder of his natural life? No possibility of release - in his sentence." The Court in response to that question said, "I can give you no such assurance. I think I might explain to you that the maximum term the Court may impose is 30 years, but even if the Court imposes the maximum, and of course I can, even if the Court imposes the maximum, the Court also has to impose a minimum sentence. So that the longest term that the Court can impose would be an indeterminate sentence of 10 to 30 years. The minimum has to be not more than a third of the maximum. Then at the end of the minimum sentence, the Parole Board would have to decide whether the maximum should be served, or anything less than the maximum. So that I can give you no assurance that the defendant would legally be imprisoned for the remainder of his natural life if he's found guilty as charged.
William J. Brennan, Jr.: May I ask you Mr. Bryant?
William B. Bryant: Yes, sir.
William J. Brennan, Jr.: As a statement of what the law is in that regard, do you need to quarrel with it?
William B. Bryant: No, sir, as a statement of what the law is, if Your Honor please, I have no quarrel with it.
William J. Brennan, Jr.: Now, what would you suggest should have been Judge Holtzoff's answer to that question?
William B. Bryant: I think his answer in the circumstances here should have been that is a matter which is not properly before you jurors for your consideration and I will not answer that question.
Felix Frankfurter: You mean -- do I infer from your answer to Justice Brennan that you imply or that you -- you -- we should carry the meaning of what you say that in as much as -- as the amount of the -- in as much as the way in which the judge exercises the discretion other than capital in the sentence that the jury tells particularly.
William B. Bryant: Yes, sir.
Felix Frankfurter: He shouldn't tell him what will influence them because that may influence them in bringing in one sentence rather than another?
William B. Bryant: Positively, Your Honor.
Felix Frankfurter: That's your problem?
William B. Bryant: That's my position. This isn't a case where the jury is charged with the duty of fixing punishment in terms of fixing death or fixing life or fixing a term of years. This is a case where their sole consideration is to determine guilt or innocence on the one hand and then if they determine that he is guilty, whether or not he should be -- his life should be fought. If they decide that it shouldn't be, what happens to him in the alternative is not any -- any area in which they can make any consideration. It's sheer speculation.
Felix Frankfurter: Well, in as much as they have that awful power which they have under statute in various mistakes of deciding whether a man should go to his death or not, are they themselves on how they -- how that should be put to them -- are they themselves entitled to consider suppose a jury brought in a verdict saying we find the defendant guilty and we think and we recommend death because of inevitable speech --
William B. Bryant: Yes, sir.
Felix Frankfurter: -- or they shall because we think that you ought not to be alleged inside the community very soon as he will might be but -- what will you say to that kind of a verdict. Now, that is a --
William B. Bryant: I think if he --
Felix Frankfurter: -- illegal verdict? They gave their reasons from closing, for qualifying the -- or adding to their finding of guilty, the reason for recommending for opposing death as the power --
William B. Bryant: I would say this, if Your Honor please, that that would be a positive determination of death.
Felix Frankfurter: Now, can't they -- your argument must imply that they cannot get some guidance from the Court for consideration that they may as a perfectly conscientious jury take into account in the privacy of the jury?
William B. Bryant: That's right Your Honor.
Felix Frankfurter: Isn't that right?
William B. Bryant: That's right sir. That -- that's my position. Then the Court --
Felix Frankfurter: The answer they got from the judge, what the judge said is something that they could discuss among themselves.
William B. Bryant: That's right, Your Honor.
Felix Frankfurter: In the secrecy and privacy of the -- the jury.
William B. Bryant: That's right.
Felix Frankfurter: But your proposition -- you stand on the proposition that the judge has no business to help from defining -- expounding this.
William B. Bryant: I -- I think that --
Felix Frankfurter: Isn't that right?
William B. Bryant: May I take that position, if Your Honor please.
Felix Frankfurter: I -- I understand it.
William J. Brennan, Jr.: Mr. --
Felix Frankfurter: If I may say so, that is the position to take but I just want to know if that's it.
William B. Bryant: That is my position, if Your Honor please.
William J. Brennan, Jr.: Mr. Bryant, I -- I gather then that you would probably distinguish in a state statute as I think as the case in some states where the verdict of guilty carries automatically the death penalty unless there's an affirmative recommendation of life imprisonment.
William B. Bryant: That's right.
William J. Brennan, Jr.: Is that it? And the --
William B. Bryant: That's right.
William J. Brennan, Jr.: -- distinction you draw here is that a verdict without the appendage with the death penalty automatically leaves to the judge a determination of what the sentence shall be, is that it?
William B. Bryant: That's right Your Honor. In other words, you take the position in -- in the that case that Your Honor cites and I believe that is so in several Ohio --
William J. Brennan, Jr.: Well, there's some in New Jersey I know.
William B. Bryant: That's right, sir, if Your Honor please. Well, in that particular case, the jury is charged with fixing punishment as a matter of fact in the alternative and they aren't here and another distinction is this, in the wisdom of Congress, what happens to a man if the death penalty isn't imposed at the term of years per years, so they aren't be a meaningfully beginning embedding an area which is fraught with speculation from the very beginning. Then they asked for reading of the rape statute and the Court at that time reads the rape statute too and reads the penalty. The Court stated, may the jury have a reading of the D.C. Code, it reads this way, whoever has come knowledge of the female force have been against their will shall be imprisoned for not more than 30 years provided any case of rape the jury may add to their verdict. If he'd be guilty, the words would be death penalty. In which case, punishment shall be death by electrocution provided further that the jury fails to agrees to the punishment, the verdict shall be received and the punishment shall be imprisoned -- imprisonment as provided in this section. Now, as the Court's pleases, I complained of any answer at all to the question.
Felix Frankfurter: But now, forgive me for this question because I have a great deal of sympathy --
William B. Bryant: Sir?
Felix Frankfurter: I -- will you forgive my question because I have a great deal of sympathy --
William B. Bryant: Certainly.
Felix Frankfurter: -- from your point of views. It comes from a friendly source. Suppose -- suppose the jury instead of having asked the question they did asked had specifically trained this question, we are honored to tell us whether it is a fact that even though you impose the maximum sentence under the existing parole legislation or whatever an existing laws, it doesn't follow that the defendant will have to serve the maximum sentence. He may serve a much less sentence in view of -- he could behave inside. Couldn't he be allowed to answer that question?
William B. Bryant: No, sir. Beyond the place, I think the prohibition is against that even in cases where juries have the right to determine punishment, let's say, in lesser offenses like driving while drunk, for instance, where the range of punishment might be from a $100 to $1000 fine and maybe from 30 days to a year in jail. The function of the parole authorities is a distinct -- the executive functions, it's another branch of the Government. And what the -- what -- what -- confidence the Congress has reposed in the wisdom of those persons, people who may be even unborn should not be frustrated or thwarted by somebody anticipating what might be done. The Court properly should say that that is not --
Felix Frankfurter: None of your business.
William B. Bryant: None of your business, Your Honor.
Felix Frankfurter: On the other hand, the jurors are trying conscientiously to discharge their duty.
William B. Bryant: That's right, sir.
Felix Frankfurter: They have the power of bringing in a death penalty.
William B. Bryant: That's right, sir.
Felix Frankfurter: Or let's view the -- and they want to know by what consideration. It's not a consideration in harm and reflection should guide them in making that awful judgment. And -- and if they -- I wonder if they merely ask that there isn't a difference between asking a specific fact which can be answered in a specific way in making a little speech like this old speech as to which is calculated as you argue, is calculated to make them realize this fellow may observe law. Isn't there a difference? You were raising a very -- you were raising a very -- to my point of view a very far-reaching question as administration of formal justice.
William B. Bryant: If Your Honor please, I think this. I think that this Court about -- gave the answer to the question a long time ago in the Winston cases which arose in the District of Columbia. And in that -- in those cases, we have that federal statute which said that the penalty for murder in the first degree would be death except if the jury should bring back a verdict of guilty without capital punishment. And then at the first few cases that arose under that statute, a judge told the jury that in -- if they came to any conclusion that these -- that these defendants should not be -- should not receive the death penalty or if they came to the conclusion that the verdict should be without capital punishment that they must find some mitigating circumstances and have some objective credited for him. And this Court said that's not so. This Court uses the term and the total evidence in light of all the evidence. I think that's a cue here, if Your Honor please. I don't believe that punishment in the alternative from the death sentence can be properly construed as evidence in the case. I --
Felix Frankfurter: The Winston -- the Winston case really was a strong into measuring or at least, hence in a murder case anything that the trial court judge said that to my point of view is strong and important, anything than -- everything that resorts at great length. But in the Winston case, this Court said in effect, and if I may say, just quite right to -- but the judge practically told them, "You ought to bring a death sentence unless you got a good reason for not doing so." That -- that will be effectuating this.
William B. Bryant: That's right. If Your Honor please --
Felix Frankfurter: If you can't do that, this isn't quite right, this isn't that the crime.
William B. Bryant: If Your Honor please, I have the -- I take the position that it was then.
Felix Frankfurter: That the effect was the same.
William B. Bryant: The effect was the same, particularly, in the light of these circumstances, if Your Honor please. If not death, then there was no life imprisonment that was 30 years. And then with the imposition of 30 years, the indeterminate sentence law is no part of the statute on rape. It's a separate part of the code, and then when Judge Holtzoff mentioned the indeterminate sentence law and then went to the point of the Parole Board having the authority to determine that the end of the minimum period it need not to serve anymore unless they see -- was in effect emphasizing. Now, the possibilities and probabilities that this young -- young man would be out in no time, so that was the effect of it that they could not be escaped and that's why I -- I said at one point that the arrow was sort of progressive arrow.
Felix Frankfurter: What you really think is that they cut there deep into the whole conception went out to the jury, what you really think is that the contradiction or deny what I've put to you earlier, can't they get some rational guidance from the judges to how they should exercise, what is their power maybe to them before the death sentence that what you're really saying is this had better be lasting all in what you will, the feeling, the hunch, the -- the -- some total human feeling of these 12 people, men and women whether this fellowship goes to a death or not.
William B. Bryant: That's right, Your Honor.
Felix Frankfurter: You better not have any inclusion of any kind of enlightenment from the Court on that subject.
William B. Bryant: That's right, Your Honor.
Charles E. Whittaker: Mr. Bryant.
William B. Bryant: To the purpose. Excuse me, sir.
Charles E. Whittaker: Does it not really get down to this whether the question -- the question number two with 107 of the record was proper to be answered in any circumstances? Do you say that if it was to be answered at all that Judge Holtzoff could have done better or anyone else than he did?
William B. Bryant: Yes, Your Honor.
Charles E. Whittaker: If it was to be answered at all, you think it could have been answered better than Judge Holtzoff did answer?
William B. Bryant: Yes, Your Honor.
Charles E. Whittaker: You do?
William B. Bryant: I assert that this is fiduciary and I think it shouldn't have been answered at all.
Charles E. Whittaker: It shouldn't have been asked?
William B. Bryant: It shouldn't have been asked either, if Your Honor please. It shouldn't have been answered at all and the only federal cases we had Your Honor, the Lovely versus United States. Now, in the Lovely case, it's true that Judge Parker pointed out or it was pointed out by someone that this answer that -- that the Court's charge relative to the parole possibilities on a life term were -- were gratuitously offered by the Court and not in response to an inquiry. But the language of Judge Parker was to this effect. That's something with which the jury has nothing to do. I think that's --
Charles E. Whittaker: Well, that's -- that thing I will answer.
William B. Bryant: That's right. Now, specifically as to your question about Judge Holtzoff's correctness or incorrectness in answer to the question, it seems to me, if Your Honor please, that in the circumstances of this case and in the light of the law which had governs in the District of Columbia, death isn't imposed, that if he answered at all, his answer should have been confined to a straight unequivocal, unelaborated upon no. I'm saying this that when he went beyond and gave the jury the range of what might happen to this man, they didn't asked for that. And the extent to which he went almost forward on advocacy, he came to the point where he's injecting himself into that jury room. The emphasis upon the possibilities that at the end of 10 years, this man would be in the street. The jury didn't ask for that, if Your Honor please, and I think that it would (Inaudible) to -- to tell her that.
Felix Frankfurter: I'm a -- I'm a little troubled. Didn't the jury ask the question that the -- on -- in quote on top of page 107?
William B. Bryant: Can we, the jury be assured that --
Felix Frankfurter: Didn't they ask that?
William B. Bryant: They asked --
Felix Frankfurter: Wasn't that there a question? Was there not that question? Did they not put those very words to the judgment?
Charles E. Whittaker: The jury?
Felix Frankfurter: The jury, isn't it? Under the jury verdict?
William B. Bryant: Yes. Yes, sir, that's -- that's what they asked.
Felix Frankfurter: Was an evidence covered by your answer to Justice Whittaker that the jury didn't ask for that?
William B. Bryant: No, I don't mean that.
Felix Frankfurter: Then I misunderstood you.
William B. Bryant: I don't mean that, if Your Honor please. The jury was not asking about alternative sentences. They were asking about an assurance of something that didn't exist. They were asking the --
Felix Frankfurter: In the evidence, supposing he answered, just said no. Can we be -- the jury be assured defendant legally be imprisoned for the remainder of his natural life? Supposing he'd said no, you would have the same -- you would object to that, wouldn't you?
William B. Bryant: I was complained about that, if Your Honor please.
Felix Frankfurter: Yes, you complained but this is different.
William B. Bryant: This is different. This is worse. This is aggravated.
Felix Frankfurter: Is the answer which the judge gave technically are not -- not with reference to your problem. Is it technically correct --
William B. Bryant: It is but --
Felix Frankfurter: -- at the situation of the law?
William B. Bryant: That is right but it's not responsive, if Your Honor please.
Felix Frankfurter: As I understand it. But I mean this is technically correct.
William B. Bryant: Yes, Your Honor.
Felix Frankfurter: Of course, if it was technically wrong, I wouldn't bother along with it.
William B. Bryant: That's right, sir. It would technically be correct, if Your Honor please. As far as it went, I'm saying that he shouldn't have gone as far as he did.
Felix Frankfurter: In that I follow you.
William B. Bryant: Now, some cases have --
Felix Frankfurter: May I -- except one more thing.
William B. Bryant: Yes, sir.
Felix Frankfurter: Suppose -- suppose one should find that he -- that one should agree with you speaking of consequences, it would have to go back for -- it wasn't tried, wasn't it?
William B. Bryant: Yes, Your Honor.
Felix Frankfurter: He couldn't impose the sentence, of course, and the old jury couldn't be called back. And it -- well, could it -- I don't know what do you suggest or either by you or by the Government that could -- that the case suddenly sends back to vacate the death sentence and impose the life sentence. I don't know what the Government (Inaudible)
William B. Bryant: Your Honor, I -- I would want to venture to the answer on that.
Felix Frankfurter: I suppose one might have to face that question if one agreed with you, wouldn't one?
William B. Bryant: That's right, sir.
William J. Brennan, Jr.: Well, the only thing that bothers me about that, Mr. Bryant. If I understand your position, it's a jury determination and I suppose is an integral part of the judgment of conviction that the death sentence should be imposed, isn't it here?
William B. Bryant: As it is now, yes, Your Honor. The death sentence has become a part of the verdict.
William J. Brennan, Jr.: Well then, how -- how can any but the jury (Voice Overlap) --
William B. Bryant: I participate some difficulty in that area, Your Honor. I -- I can understand what's troubling you.
Felix Frankfurter: Well, except that's a difficult question for me was when I -- it doesn't seem irrational to me to say the death sentence was improperly imposed? The death sentence is vacated to the finding of guilty that you do the best you can.(Voice Overlap) --
William B. Bryant: That's right. In the finding of guilty, I don't think there's any equivocation about that.
Felix Frankfurter: If they said nothing that the jury brought in guilty then -- then it wouldn't be death?
William B. Bryant: That's right.
Speaker: I noticed --
Earl Warren: Mr. Bryant, Oh, pardon me, just go right ahead.
William B. Bryant: Thank you, sir.
Speaker: I noticed that the last question that the jury asked was, "May the jury have a reading of the D.C. Code rewrite?" That was one of their questions.
William B. Bryant: That's right, Your Honor.
Speaker: And then the Court proceeded to read the statute.
William B. Bryant: That's right.
Speaker: Now, did he say anything more in his preliminary explanation than was contained in the reading of the statute?
William B. Bryant: In the -- you mean there is no charge.
Speaker: The part that we've been talking about. Now, the part on his -- it's a part of his answer to the jury's earlier question that you objected to. That simply is summarization of the statute, isn't it?
William B. Bryant: That -- that's right, if Your Honor please.
Speaker: Now, do you object to the view -- supposing the Court had said, "I will not answer your question except to say that I -- to read you the statute in response to your last question," would you -- objected to that?
William B. Bryant: No, if he read the -- the statute as he did in his original charge. The safe way that judges usually adopt is to say I've already instructed you on that matter and that's the end of it. If he had said no and then read the statute without regard to the punishment, I would have been satisfied. But I don't think that that was an area for the jury to be concerned with whether or not he got 30 years or 10 to 30 or 9 to 27.
Earl Warren: Mr. Bryant, I suppose implicit in your argument is the -- is the fact that the colloquy of this kind is -- there's a vise in it because it -- it's likely to produce a compromised verdict and that that being true, any -- any verdict that -- that was brought about as a result of such a colloquy is subject to the -- the criticism that it might be -- it might be a compromised verdict.
William B. Bryant: I think so, if Your Honor please. That's my position.
William J. Brennan, Jr.: Well, excuse me, Mr. Bryant, I don't follow that. How could there be a compromised verdict? As I understand it, unless unanimously they attach the death penalty to the verdict, automatically he gets only imprisonment.
William B. Bryant: That's right.
William J. Brennan, Jr.: There couldn't be a compromise.
William B. Bryant: That's right.
William J. Brennan, Jr.: It didn't -- it didn't result in a compromise. I gather your position is that it was an intrusion in the sense that it led the jury unanimously to the finding of death penalty that -- but for what he said that -- at least there may have been a disagreement upon in which he fairly could not have had more than imprisonment, isn't that it?
William B. Bryant: Well, I don't mean compromise in those terms, if Your Honor please.
Earl Warren: I was talking about compromise in this -- in this sense. Some of the jurors might have been for the death penalty. Some of them might have been for -- for life imprisonment. And -- and those who were for the death penalty might have said, "Well, if we could -- if we could be sure that he would stay in jail for the rest of his life, we will -- we would find him guilty of -- of the offense punishable less than death. But unless we can be assured of that fact, we will go with the other group."
William B. Bryant: That's right. That's a deal so to speak.
Earl Warren: It's a deal, it's a compromise.
William B. Bryant: I mean -- in fact the jury say it's -- it's --
Earl Warren: In that sense --
William B. Bryant: That's right.
Earl Warren: -- that's -- that's the sense I used to deal.
William B. Bryant: That's right. And I think --
Felix Frankfurter: It may go even further than that. They go even further than that. One doesn't have to know much about juries to know that there may be jurors on that jury who would say, "I'm ready to find him guilty if he isn't sentenced to death."
William B. Bryant: That's right.
Felix Frankfurter: "But I'd hold out against the verdict of guilty."
William B. Bryant: That's right, Your Honor.
Felix Frankfurter: Was to insist on technically trying there is alternative, he may be switched over from voting for acquittal to guilt?
William B. Bryant: That's right.
Felix Frankfurter: That's not an unknown.
William B. Bryant: So that this -- this I think this -- I think in specific, the answer to your question Your Honor that -- that a jury in arriving in the determination is great as this. It shouldn't impose the death penalty in terms of negative reaction. In other words, the death penalty should reflect the heinousness of the crime in certain things in which it was committed and not any disapproval of anything that the Congress in its wisdom has adopted as alternative. If that isn't their business, strictly isn't their business to say this to them. If it would be improper -- if it were improper -- we'll put another way I should say that the Court's original charge relative to the law and the jury response was the extent to which they should have been informed.
William J. Brennan, Jr.: In other words, what was done is an official, improper -- if that's a good English, intrusion under the function of the jury which vitiates because of its prejudice to the verdict of death.
William B. Bryant: That's right, if Your Honor please. I think --
Speaker: I understood you to say that you objected to the answer that the Court gave to this in -- but I don't find that. Where is it?
William B. Bryant: I -- I -- if Your Honor please, I didn't -- I didn't -- I don't think I said that as to the objective of the introduction of the evidence.
Speaker: Oh, I misunderstood you.
William B. Bryant: But as to the -- And if I did say that, I don't mean that. But I did make it the basis for -- in a motion for a new trial, if Your Honor please.
Speaker: When -- when the questions first came in and as the record says, I want to show you gentlemen, meaning counsel --
William B. Bryant: Yes, sir.
Speaker: -- a note that I received from the jury. I think as to the question they asked on number two. I shall have to say that I cannot give them any such assurance, Mr. McLaughlin, that's the District Attorney.
William B. Bryant: That's correct.
Speaker: That is right and nothing further appears.
William B. Bryant: That's right. Well, if Your Honor please, I might say this. That I was in an unfamiliar situation at that point and I said nothing as the record reflects. But I assure Your Honot that had I had any idea that the judge is going to say what he did say, I would have just objected spontaneously. He said, I'm going to tell him, I can give him the no, the answer is no. I can give no such assurance. I had in my mind at that time that that wasn't a proper thing to do. But certainly if I had any idea in the world --
Speaker: Well, he gave but you didn't say anything?
William B. Bryant: If Your Honor please, I -- I felt helpless under the --
Speaker: I'm not saying that you're bound by that --
William B. Bryant: I understand that.
Speaker: -- I'm just trying to find out.
William B. Bryant: I thought about that to some extent but I can imagine nothing that could have been done in those circumstances that could have protected -- that could have obviated it or at least affected it.
Charles E. Whittaker: That is the jury's reaction but it might have put your record in a little better position?
William B. Bryant: Yes, Your Honor, I agree.
Earl Warren: Mr. Bryant, are you going to find time to discuss the first question, the question of the detention?
William B. Bryant: Yes, if Your Honor please, I would like to complement. If Your Honor please, I think that the confessions in this case fall within the prohibitions of the McNabb doctrine for this reason. At the time this man was taken to the headquarters building in question, he was literally taken down a car on one side across the street for 15 or so judges of the District Court and nine of the Court of Appeals and the United States Commissioner, the width of the street. A block away was the Municipal Court for the District of Columbia, all of the judges on which are empowered to act as committee magistrates. Now, the delay between time of arrest and the time that the Commissioner was sought was not a delay which arose out of expensive circumstances or which the police had no control, it was a delay which was chosen by the police for the purpose of interrogation. And I think, if Your Honor pleases, that the McNabb and Upshaw mean what I'm certain that the Court have said that -- that they mean and who file was to be observed at all that the delay in this particular case were such as to invalidate the confessions.
Felix Frankfurter: You said that the delay was chosen. It was designed --
William B. Bryant: Delay was chosen.
Felix Frankfurter: The design delay.
William B. Bryant: That's right, Your Honor.
Felix Frankfurter: Would you please refer us or quickly state what the evidence in the record is for that statement? What is the -- On what do you based that statement?
William B. Bryant: Well, I had based that statement, if Your Honor please, on the fact that on -- at -- in the record on page 52, I believe. The police -- I am reading down near the -- well, the third question from the bottom. If Your Honor please.
Earl Warren: On what page?
William B. Bryant: On page 52 of the record where the -- Mr. McLaughlin said, "We're calling your attention after the defendant stated to you that he'd made a verbal statement. You stated he made a verbal statement. Was there any attempt at that time to get in touch with the United States Commissioner?" Answer, “Yes, sir. Sergeant Elliot made a call to the home of the United States Commissioner. Commissioner was unavailable." "And that was approximately what time?" "It was some time after 10 o'clock." Now, I say that the record reflects that this was a matter of choice for this reason, that he was interrogated then they waited for the lie detector man to come to interrogate him some more. There was absolutely no reason indicated by the record why he should not have been arraigned. I say that a test is not the time that --
Felix Frankfurter: What -- what time was he arrested? When was he convicted?
William B. Bryant: He was arrested about 2:30 and arrived at the police headquarters, if Your Honor please, which was across the street from these people and about 3 o'clock, shortly before 3 o'clock.
Felix Frankfurter: Where is the Commissioner --
William B. Bryant: The Commissioner --
Felix Frankfurter: (Voice Overlap), what's the geography of the Commissioner's home?
William B. Bryant: These buildings, if Your Honor please, are directly across the street one from the other directly across the street. The interrogation took place on the fourth floor of this building over here. In third, it seems to be South and Northwest. The United States Commissioner's office is in the Northwest corner of the New United States District Court building, a third is on market-based, and coincidentally, it was about the closest office to the police headquarters.
Felix Frankfurter: Is the Commissioner that we know -- whether the commissioner sitting in his office, is he there particularly available?
William B. Bryant: If Your Honor please, I don't know what he was --
Felix Frankfurter: No --
William B. Bryant: The assumption is that during the business hours that he was. We know --
Felix Frankfurter: The position of the district have a good deal of business or that he -- did he get a full time job
William B. Bryant: He has full time job, if Your Honor please, on a yearly salary. And I'll say that my experience both as with the commissioner, I spent a lot of time with him that he was aware of the fact that he should be on duty at least until the judges were on duty about 4:30. I know that that was a fact that that was the practice there.
Felix Frankfurter: Well, if he's on a full time on a yearly salary --
William B. Bryant: About 95 --
Felix Frankfurter: I don't know nothing about this but I should think Washington is big enough to have a commissioner who's there on full time?
William B. Bryant: That's right, Your Honor. His salary was $9500. I think he was furnished a staff.
Felix Frankfurter: Do you suggest that he should be presumably there until 4:30 anyhow?
William B. Bryant: Oh certainly.
Felix Frankfurter: That's not a wild assumption, is it?
William B. Bryant: Not -- not a wild assumption. I think that at least they should have attempted to get in touch with him in his office some time before 4:30 rather than waiting until after 10.
Felix Frankfurter: What is the exact time when -- when this defendant was brought into police headquarters?
William B. Bryant: 3 o'clock, if Your Honor please.
Felix Frankfurter: 3 o'clock?
William B. Bryant: 3 o'clock.
Earl Warren: But they also have taken him, did you say, to the municipal judges?
William B. Bryant: They -- they could have taken him to the municipal -- municipal judges who I know are in session until after 4 o'clock. They could have taken him to any one of the District Court judges, there's always one on duty at least until the time.
Felix Frankfurter: How many district judges are there?
William B. Bryant: Sir?
Felix Frankfurter: How many district judges are there at the district?
William B. Bryant: There are 13. There were 13 of --
Felix Frankfurter: They're all in that building over there?
William B. Bryant: All in that building, the United States Courthouse, nine of the Court of Appeals judges and 13 district judges and the United States Commissioner.
Felix Frankfurter: Are -- are defendants ever taken before at the District Court arraigned?
William B. Bryant: Yes, sir.
Felix Frankfurter: The District Court's -- the district judges take arraignments --
William B. Bryant: Yes, sir, I've done it, if Your Honor please, personally for the very purpose of -- of eliminating this contention and I would say this that the municipal court judges are utilized fully as much as the United States Commissioner.
Felix Frankfurter: You mean you can break in toward a particular case? I mean there's an arrest at 3 o'clock and a conscientious district attorney could take him to even the Commissioner or he isn't, for some reason, there or busy, you could take him to the municipal court as such --
William B. Bryant: Oh, yes, sir.
Felix Frankfurter: -- and say, “Your Honor, I have a case." Is that all right?
William B. Bryant: Yes, sir.
Felix Frankfurter: No trouble about that?
William B. Bryant: No trouble and the municipal court judges will make themselves available. They will wait for you, late in the evenings, sometimes after 5:00.
Felix Frankfurter: How many municipal court judges are there?
William B. Bryant: There are 11, if Your Honor please.
Felix Frankfurter: One more question, Mr. Bryant.
William B. Bryant: Yes, sir.
Felix Frankfurter: Did you -- on this Court -- on this aspect of your case, unlawful illegal detention, the McNabb one part.
William B. Bryant: Yes, sir.
Felix Frankfurter: Did you properly, technically preserve your -- your claim of error as to that?
William B. Bryant: If Your Honor please, I think I did throughout.
Felix Frankfurter: Raise it early?
William B. Bryant: I raised it early, yes, sir.
Felix Frankfurter: When?
William B. Bryant: When Mr. -- at that trial court when Mr. McLaughlin mentioned to the Court that this is a confession case, if Your Honor pleases. And I was --
William J. Brennan, Jr.: Can you point to the place in the record where you first did, Mr. Bryant, without too much trouble or -- don't use your time doing it now if you can.
William B. Bryant: Well, I can't. I need to put my finger --
William J. Brennan, Jr.: It's all right. I get it, you have provided it.
William B. Bryant: I will need to put my finger on --
Earl Warren: Has the Government challenged the fact as to whether you did bring it to the attention of the Court?
William B. Bryant: No, sir. They haven't challenged it, Your Honor.
Felix Frankfurter: Have they challenged the other question? Have they said, you haven't -- the question that Justice Harlan put that you did not object to the answer by the trial judge? Did the Government raise that?
William B. Bryant: Some references made within the Government's brief but not a formal challenge, I believe in the footnote --
Felix Frankfurter: All right.
William B. Bryant: -- if Your Honor please.
Harold Burton: Until after the lie detector test, did they have enough to arraign him for?
William B. Bryant: Well, if Your Honor please, they had enough to arraign him when they arrested him. Now, if Your Honor means if did they have enough for the commissioner to hold him, I think it's a different question. I think that purposes of arraignment is to determine whether or not there's enough to hold him. I don't think the police -- that was the Upshaw rape case. The police said it didn't they take him there because we didn't have enough for the commission at a holding and that was the fact here, so that --
Felix Frankfurter: That's what you mean by saying the failure to arraign was designed in order to enable him to get the evidence.
William B. Bryant: That's right, the sole purpose of the delay. And I say to Your Honor that when the Commissioner is available and the arresting authority has failed to take advantage of his availability for the purpose of arraigning, then that detention is illegal and --
Hugo L. Black: I understand the Government doesn't argue there as I -- as I gather from their brief. What they say is, they had him there along with two others investigating a crime?
William B. Bryant: That's right.
Hugo L. Black: There was enough -- enough evidence to get anybody?
William B. Bryant: That's right, sir.
Hugo L. Black: And that they claim they had a right to investigate and interrogate witnesses and they recommend an injustice to him to arraign him or charge him with the murder when they didn't have the evidence?
William B. Bryant: That's right.
Hugo L. Black: Your issue is drawn on whether that's a sufficient reasoning.
William B. Bryant: Well, I don't think there's any reason, if Your Honor please. And when the -- when --
Hugo L. Black: But I mean that that's the argument between --
William B. Bryant: That's the argument of the Government.
Hugo L. Black: No, I do not read in the arguments and in the brief of the Government, any challenge to the fact.
William B. Bryant: No, no.
Hugo L. Black: But he could have been taken to a commissioner much earlier?
William B. Bryant: They -- they are saying this that the reasons that they didn't take him were logical reasons and made the delay necessary. I say to Your Honor that the only necessary delay is the delay in which the police are not in the position of choosing.
Felix Frankfurter: What you're saying is that if there is cause for arrest, there must some cause for arrest and there is the question of -- is that sufficient cause for detention?
William B. Bryant: That's right, sir.
Felix Frankfurter: And soon as the -- there is cause for arrest, to justify the arrest, he should be brought before a magistrate and then the Government could say, "Your Honor, we want this witness at all events detained until we can ascertain if anybody is guilty of a crime." At least sufficient evidence to prosecute him and further whether there is sufficient evidence to -- to prosecute these fellows --
William B. Bryant: We ask the --
Felix Frankfurter: -- and therefore, we want him detained. But you were saying, the essence of the McNabb rule is that you can't hold him until you find out whether you've got enough on the fellow. That's your position.
William B. Bryant: Well -- well, I say that that's police's position. That's not mine --
Felix Frankfurter: Well, I'm saying that you say you reject -- you -- you challenge that. That's right, I challenge that.
Felix Frankfurter: That's the whole point.
William B. Bryant: That's right, sir.
Felix Frankfurter: That you can't just arrest a fellow with sufficient expectation or suspicion or -- or feeling, knowledge, probable cause to arrest him and then keep him there until you get out of him what you want and make out a case. That's your case, isn't it?
William B. Bryant: That's right, Your Honor.
Earl Warren: We'll recess now.