Earl Warren: Number 583, John Coleman, Petitioner, versus Alabama. Mr. Greenberg.
Jack Greenberg: May it please the Court. I move the admission of Mr. Michael Meltsner of the New York bar for the purpose of arguing this case. I'm satisfied that he has the necessary qualification.
Earl Warren: He may be admitted. Mr. -- Mr. Meltsner.
Michael C. Meltsner: Mr. Chief Justice, may it please the Court. This is a capital case here on certiorari to the Supreme Court of Alabama and it involves the question whether the courts of that state can refuse to give petitioner an opportunity to put on evidence and then affirm his conviction because he failed to carry a burden of proof. The facts are these, petitioner John Coleman is a Negro, who was indicted and convicted for the murder of a white man by juries of Greene County Alabama. Greene County is in the Western part of the state, a very rural country. Approximately 80% of the population is of the Negro race. At petitioner's trial, it was represented by Court appointed white attorney, who failed and did not assert his constitutional rights. The juries chose him without systematic exclusion of Negroes. After conviction, a Negro attorney was called into the case by petitioner's family. He filed a timely motion for new trial explicitly alleging systematic exclusion of Negroes from the grand and petit jury, and a hearing was held on this motion for new trial. But at the hearing, counsel was not permitted to introduce testimony establishing systematic exclusion of Negroes because the trial court, at the urging of the prosecutor, took the view that the question could not be raised for the first time on motion for new trial, that it -- it had to be raised under Alabama procedure prior to the trial. On appeal --
Speaker: Is it both (Inaudible)
Michael C. Meltsner: Yes, Your Honor. On appeal, the Supreme Court of Alabama held that petitioner had had an opportunity at the hearing on the motion for new trial to introduce evidence of systematic exclusion that he had the burden of proof and that he had not placed into evidence sufficient evidence to prove jury discrimination. The Court said absolutely nothing about any waiver and quite clearly decided the case on a ground which made waiver moot. Now, as the ruling of the Supreme Court of Alabama which we ask this Court to reverse is the opportunity which that Court said petitioner had on the hearing for motion for new trial to introduce evidence. I refer the Court to that hearing which is in the record, pages 15 to 23, and mainly we're concerned with that portion of the hearing which begins on page 18. Let's expose what happened at that hearing where the Supreme Court of Alabama says petitioner had an opportunity to carry a burden of proof and to introduce evidence of systematic exclusion. Petitioner's counsel at the hearing attempts to place on the stand the two Circuit Solicitors who had tried petitioner in order to prove the allegations of the motion for new trial. And on page 18, we see the response of the Circuit Solicitor. He argues that the question has been waived and there on the 11th line at page 19, he urges to the trial court, we don't think any evidence along that line would be legal and we would object any evidence because it would just be a waste of time. Now at this point, the trial judge says he doesn't know what petitioner's counsel would put on. Petitioner's counsel attempts to offer proper -- the kind of proof he's willing to put on. He argues that the trial court has the discretion to hear that evidence. The trial judge says, “No. You put your witness on the stand. If there are any objections to the questions you ask him. I'll rule on the questions, on the objections. In that way, we'll determine the issue.” So on page 20, the Solicitor is placed on the stand and the foundation is laid. He -- he testifies that he's practiced law on the county for a number of years, that he is familiar with Negroes and Whites in the county, that he has never missed the grand jury in the county. But when the question comes now, “What's the population or the ratio -- population ratio between the races?” Bang! Objection, the issue can't be raised for the first time on motion for new trial. And on page 22 of the record, the trial court clearly sustains that objection on just that ground. Petitioner's attorney asks two more questions, how many Negroes if any were on the grand jury, same objection, same disposition. How many Negroes if any were on the petit jury, same objection. He can't take advantage of the Fourteenth Amendment this way, same disposition. Now, it's elementary I think that -- that this is not a hearing consummate with due process. There was no opportunity to introduce testimony. And I don't understand the state now to take the position that -- a position contrary to that. Although the state opposed rehearing and the Supreme Court of Alabama on that ground, that petitioner did have an opportunity. But now the state seems to be arguing something different that -- it was in fact the waiver. I don't believe that the opinion of the Supreme Court of Alabama, the judgment here on review, is susceptible to that interpretation. First, the Court said absolutely nothing about waiver.
Speaker: When you're talking about the waiver, do you mean, (Inaudible)
Michael C. Meltsner: That -- the question of systematic exclusion of Negroes from the grand and petit jury, could not be raised for the first time on motion for new trial and that if it were raised for the first time on motion for new trial, no evidence would be permitted, because the right would be waived.
Arthur J. Goldberg: (Inaudible)
Michael C. Meltsner: That's what I mean by waived.
Earl Warren: Was that argued to the Supreme Court of Alabama?
Michael C. Meltsner: The waiver?
Earl Warren: Yes.
Michael C. Meltsner: Yes, it was. The --
Earl Warren: But the Court didn't mention it.
Michael C. Meltsner: The Court didn't mention it. The state cited waiver cases to the Court. They were not cited in the Court -- in the Supreme Court of Alabama's opinion but fairly easy idea to convey. There are many opinions in -- in Alabama where -- where the waiver holding is the one which disposes of the case, nothing like it in this opinion. But most important, the Supreme Court of Alabama decided this case on the ground which is totally incompatible with the finding or holding of waiver. In other words, what the Supreme Court of Alabama did and it's right here on pages 32 and 33 of the record, in its opinion, it held that petitioner had a burden of proof and he hadn't -- haven't met, it held on the evidence. Now, if you don't have any right, it makes no difference whatsoever, how much evidence you put on. What the -- what the trial court did was say you had no right, so you can't put on any evidence. What the Supreme Court of Alabama does, put that -- put the waiver argument to the side and decide completely on the basis of evidence. Now, I don't think it's important whether or not the Supreme Court of Alabama had any power under Alabama law as viewed from prior cases to do what it did. The judgment in this case is bottomed on a finding of the evidence, not on a finding of waiver. The -- the judgment of the -- in this case is bottomed on petitioner's opportunity to introduce proof. But nonetheless, there are Alabama cases, the Clark and Arrington cases which are cited on page 12 in our brief, where the Supreme Court of Alabama has done exactly what it did here. In other words, the jury question was raised for the first time on motion for new trial, the case came up from the Supreme Court of Alabama and it decided the case on the evidence or indicated that it had the power to decide the case on the evidence. There is even a -- a very recent case on coram nobis where the Supreme Court of Alabama said we know in deciding this case that the petitioner here did not raise this question prior to trial or on motion for new trial, that's the Howard case in 151 Southern Reporter. And there's another one where the same statement is made, the Sills case, 126 Southern Reporter. So as we view this case, it comes clearly under the rule of Cole versus Alabama, recently reaffirmed by this Court, I think about two weeks ago in the Shuttlesworth case, that a Supreme Court of a state must dispose of a case upon consideration of what happened in the trial court. Now, in Cole the -- the conviction was affirmed by the Supreme Court of Arkansas on the basis of a violation of law which was not tried below and this Court reversed it because the -- the criminal defendant did not have an opportunity to defend himself to put in evidence. So here, petitioner has not had an opportunity to put in evidence establishing a constitutional defense. The reason he hasn't had that opportunity is because the trial court took the view totally incompatible with the view taken by the Supreme Court of Alabama, that he had no right, no right to establish. Now, I think coming to this record Cole, the Court might have some question about why the Supreme Court did what it did, even though it's totally explicit, what it did. And I think the answer is in two cases briefly discussed in our brief, the Sills and Golsby cases in which the Fifth Circuit has held that in situations like this, where a Negro is represented by a court appointed white lawyer in the South, and the state does not show that he knowingly and intentionally waived his constitutional rights that if the Fifth Circuit is held that it will not be precluded from examining the evidence of the jury question. And the Supreme Court of Alabama knows about this cases and it is modifying what -- what we might call its traditional policy of -- of being fairly hard on litigants who don't raise the question early in light of these cases, in light of its knowledge that the same issue was going to be relitigated in the Fifth Circuit if the Supreme Court of Alabama holds waiver. But I want to make it perfectly clear that I don't think any analysis based on those cases is involved here. The Supreme Court of Alabama did what it did, and that's the judgment here for review. The only -- the only way I can rationalize the State's argument is that they are saying to this Court, Alabama's Supreme Court could've held waiver. It could've decided in this case on nonfederal grounds, and if -- because the Supreme Court of Alabama didn't do it, it could have, this Court should do it. Now there are a long line of cases where this sort of position has been argued to the Court and it's always been rejected. The leading case is -- is Grayson versus Howard -- Harrison in 267 U.S.I would like to reserve my time.
Earl Warren: Mr. Hall.
Leslie Hall: Mr. Chief Justice, members of the Court. I think I should start out by pointing out to the Court the provisions of the Alabama Code that would deal with this particular situation. Title 15, Section 278, provides that no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment except by plea in abatement to the indictment. And no objection can be taken to an indictment by plea in abatement except from the ground of the grand jury who found the indictment were not drawn by the officer designated by law to the draw the same and neither this objection or any other can be taken to the formation of a special grand jury, someone direct -- direction of the Court. And Section 279 of that same title, provides any plea in abatement to an indictment must be filed at the first session at which the indictment was found. If the accused has been arrested or if the accused has not been arrested, such plea in abatement must be filed at the first session at which it is practicable after the defendant has been arrested, and in all cases, such plea in abatement must be filed before the plea to the merits. Now --
Hugo L. Black: Those statutes are not covered in your brief, are they?
Leslie Hall: No sir. They are referred to in my brief and Mr. Justice Black at -- on page 3 but they're not copied into the brief.
Hugo L. Black: Would you mind reading that first one again.
Leslie Hall: Alright sir.
Hugo L. Black: I can't -- what can be done under plea in abatement and what cannot?
Leslie Hall: No objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment except by plea in abatement to the indictment. That's the real pertinent point of that particular one, a subjection to the formation of the grand jury and it has to be done by plea in abatement prior to --
Hugo L. Black: That's what your trial court held, wasn't it?
Leslie Hall: Yes, sir. The trial court held that and the Supreme Court of Alabama in numerous cases has followed that same rule of procedure.
Hugo L. Black: Within this case.
Leslie Hall: In this case, after the trial court refused to allow evidence on the question of the formation of the grand jury in connection with the motion for a new trial. Because of the fact that no plea in abatement had been filed prior to the time that the defendant was arraigned then the defendant who was represented on his motion for new trial by a different counsel appealed to the Supreme Court of Alabama and argued that question before the Supreme Court of Alabama and the Supreme Court of Alabama said there was no evidence. He is correct in that.
Hugo L. Black: That there was -- they said, he was not denied an opportunity, did he not, to offer that evidence?
Leslie Hall: In effect that's what they said, yes.
Hugo L. Black: I -- how can you explain that? I don't -- understand it.
Leslie Hall: Well I --
Hugo L. Black: I don't understand it.
Leslie Hall: I'll explain it this way, if I can --
Hugo L. Black: Because plainly, he was denied the opportunity.
Leslie Hall: He was denied the opportunity to present the evidence in support of his motion for a new trial on the ground that under Alabama procedure, he was supposed to raise that question prior to his pleading to the indictment and he was --
Hugo L. Black: And then he (Voice Overlap) --
Leslie Hall: -- supposed to raise that by plea in --
Hugo L. Black: The Supreme Court affirmed it but not on that ground.
Leslie Hall: They didn't point out that particular ground.
Hugo L. Black: They didn't affirm it on that ground, did they? I -- I just -- I do not understand this opinion.
Leslie Hall: Well, maybe I don't understand either, but the fact remains that they did affirm.
Hugo L. Black: They did affirm it, but --
Leslie Hall: Yes.
Hugo L. Black: -- by saying -- that -- the trial court had given him an opportunity to offer the evidence.
Leslie Hall: No, they denied him the opportunity to --
Hugo L. Black: I know they did, but the Supreme Court said he had been -- he had the opportunity.
Leslie Hall: They used some unfortunate language there, I'm afraid Mr. --
Hugo L. Black: What?
Leslie Hall: -- Justice Black.
Hugo L. Black: (Inaudible) Well, Mr. Hall, I -- (Inaudible)
Leslie Hall: Well now, the --
William J. Brennan, Jr.: (Inaudible) at least tell me whether I'm wrong about it. (Inaudible) -- I'm looking at page 32 of the record and the actual language is appellant's attorney -- I'm speaking now of your Supreme Court, appellant's attorney was given an opportunity on the hearing in the motion for a new trial to produce evidence and so forth. And then they go on to say that he didn't produce enough evidence. And it seems to me that that's to be read as implying a holding that was utterly immaterial that he didn't raise this on a -- a plea in abatement, that his difficulty was that he hadn't offered enough evidence. And the Court make no mention of the fact that he tried to offer enough evidence but the trial court wouldn't let him.
Leslie Hall: I don't think the Court had to even make that statement. They could've founded the --
William J. Brennan, Jr.: Well, they did make it.
Leslie Hall: They did make it.
William J. Brennan, Jr.: And we have to put some reading on it, don't you?
Leslie Hall: Yes sir, yes sir.
William J. Brennan, Jr.: But you agree that he was not given an opportunity.
Leslie Hall: I agree that he was not given enough opportunity --
William J. Brennan, Jr.: And they didn't (Voice Overlap) --
Leslie Hall: -- and the other -- the trial judge denied him the opportunity on the basis of the previous holdings of the Alabama Supreme Court on --
William J. Brennan, Jr.: And then the reason -- and you don't -- you -- you have no idea what evidence would've come into the record had he been given an opportunity.
Leslie Hall: The only thing that was attempted there along that line was when the Circuit's list was put on the witness stand as an adverse witness by the attorneys for the petitioner and attempted to ask him some questions about the population ratio there and bring --
William J. Brennan, Jr.: That was just an opening question?
Leslie Hall: Yes.
William J. Brennan, Jr.: That -- but that was the end of the examination.
Leslie Hall: Yes sir.
William J. Brennan, Jr.: And so the Court is clearly wrong when they said that they -- you said not -- he was granted an opportunity.
Leslie Hall: I'm afraid, I'd have to agree. Is an -- it's an embarrassing situation for me to get into. I'd have to come up here and tell you that but, I think that's correct.
Hugo L. Black: (Inaudible)
Leslie Hall: I'm sorry I'm not familiar with that case Your Honor.
Hugo L. Black: (Inaudible) not affirmed which on a basis which was not (Inaudible) but the judgment below, charging him was a different event, very much likely.
Leslie Hall: Yes.
Hugo L. Black: It was a different event.
Leslie Hall: Yes.
Hugo L. Black: (Inaudible) But here, they -- they affirmed it on the ground that -- which directed them forward.
Leslie Hall: That's correct. There's the -- the record of the trial court does -- does not support that. Now --
Earl Warren: May I ask you Mr. Hall if your court has departed from those statutes at any other time.
Leslie Hall: I don't believe they have, Your Honor.
Earl Warren: Did you hear the cases that (Voice Overlap) --
Leslie Hall: Well, I heard they mentioned the case of Arrington but I don't read that case that way and --
Earl Warren: What does that hold?
Leslie Hall: It holds that the procedure in Alabama requires the defendant who's going to raise any question as to the composition of the jury. Either grant a petit jury to raise that question prior to arraignment of the defendant on the indictment or prior to go into trial pleading to the merits as far as the petit jury is concerned.
Earl Warren: Well, what did it -- what did the Court proceed to do after saying that? Did it -- did it hear the case on the merits?
Leslie Hall: The Supreme Court?
Earl Warren: Yes.
Leslie Hall: As to our understanding it -- my understanding, it did, yes sir.
Earl Warren: Notwithstanding the fact that -- that he had not -- the defendant had not raised it at the proper time --
Leslie Hall: The -- the Court said he was too late in raising --
Earl Warren: I beg your pardon?
Leslie Hall: -- it afterward.
Earl Warren: I beg your pardon?
Leslie Hall: The Court said he was too late in raising the question afterwards.
Earl Warren: But I -- I --
Leslie Hall: A motion for a new trial --
Earl Warren: I don't know (Voice Overlap) --
Leslie Hall: -- was not the place to do it.
Earl Warren: I don't know your case but counsel just cited two cases in which he said that the Supreme Court had considered cases on the merits where those statutes had not been followed.
Leslie Hall: Well, I don't know. I think he's wrong about that, Your Honor.
Earl Warren: Well, alright.
Hugo L. Black: The Court of Appeals has, I believe as you said, it seems to me I recall reading them, held that it would not be bound by that --
Leslie Hall: You mean the Court of Appeals of Alabama?
Hugo L. Black: No, the -- of the --
Leslie Hall: Of this Circuit?
Hugo L. Black: The district -- of the United States courts.
Leslie Hall: Well, let me to point out something in connection with those two cases that the -- they cited here. They mentioned the case of Willie Seals. That's the case of United States on a relation to Willie Seals, Jr. versus Wyman. I'm somewhat familiar with that case. It came in a little bit late but I -- I do know that the Fifth Circuit Court of Appeals reversed his conviction on a habeas corpus proceeding. And he went back and was reindicted and was retried and resentenced this time to a life sentence rather than to the electric chair.
Hugo L. Black: Why did they reverse it the first time?
Leslie Hall: The -- the reason why they reversed it the first time, because he was represented by a white court appointed attorney. And the evidence showed definitely in that case that this white attorney did not know and made no reasonable effort to ascertain the population ratio as far as persons eligible to serve on the grand and petit juries of Mobile County was concerned. He so testified on the stand that he had no idea. That was Judge Johnson brother by the way, Judge Frank M.Johnson's brother who represented him. And -- so the -- the evidence showed clearly in that case that he had no means of knowledge, late -- least he failed to be diligent about obtaining the knowledge in order to -- and properly inform his client as to what his rights were.
Hugo L. Black: Court -- the Court therefore declined in effect to follow these tactics in that case, isn't it?
Leslie Hall: Yes. Now, in the --
Hugo L. Black: It was the other one also.
Leslie Hall: In the Mississippi case, the case of United States on a relation of Golsby versus Harpole. That was another case decided by the Fifth Circuit Court of Appeals and Judge Reeves wrote the opinion in that case. And it -- it just so happens the facts are these, at the time of the arraignment of this man, he was represented by a Negro counsel. But, some reason or another, between the time of his arraignment and the time of his trial, the -- a white counsel were employed to represent him. And, the Court said that this Circuit Court of Appeals said in that case, that his Negro, retained counsel had effectively waived the question at the time of his arraignment. So he was a little different -- when in fact quite a bit difference from the Willie Seals case where they said that his white appointed counsel did not effectively waived the question and therefore, the Court reversed. But in -- in the Harpole case, the Fifth Circuit Court of Appeals said that his counsel had properly and effectively waived the constitutional question forwarded.
Hugo L. Black: Now, did the Seals case come before or after the case -- the decisions (Voice Overlap)?
Leslie Hall: The Seals case was after the Harpole case.
Hugo L. Black: It comes before or after the decision of this case?
Leslie Hall: It was before.
Hugo L. Black: It was before.
Leslie Hall: Yes.
Hugo L. Black: A short time before?
Leslie Hall: Goes back to 1950 -- 1962, late 1962. If I remember the date correctly, it was May the 30th or May the 20th. I'm not quite sure.
Hugo L. Black: Has there been any change in the statute or anything (Voice Overlap)?
Leslie Hall: No sir. The statute is still the same.
Hugo L. Black: Have there been any other cases besides this one?
Leslie Hall: No recent cases besides this one on that question. We -- I've checked the party parts and the digest on it before and this seems to be most recent case on it. Now, in my brief, I make a quotation here from one of the cases from the Supreme Court of Alabama. That is Brennan versus the State in which the Supreme Court of Alabama said, there's no skilled lawyer would ever attempt to raise such a question until after conviction.
Byron R. White: But, Mr. Hall, I take it when you (Inaudible) even though the decision (Inaudible)
Leslie Hall: I think so, yes.
Byron R. White: But you wouldn't agree that it can't (Inaudible)
Leslie Hall: Well, I'd expect everybody to have due process at least to --
Byron R. White: Well, he wasn't -- he wasn't permitted the (Inaudible)
Leslie Hall: Yes, and the reason being by the lower court that he didn't raise the question at the proper time.
Byron R. White: What (Inaudible) Supreme Court of Alabama said in its opinion, we do not believe that the waiver rule applies here. This man is entitled to raise that (Inaudible) had been brought. I think you assume that (Inaudible) the Government said that.
Leslie Hall: Yes.
Byron R. White: But, he had no opportunity and he didn't produce the evidence.
Leslie Hall: Well, if they had said that, they would've been going contrary to their holdings in -- in other cases and also contrary to the statutes.
Byron R. White: (Inaudible)
Leslie Hall: Well, he -- he had an opportunity for due process. He could've raised it by plea in abatement.
Byron R. White: I know, but assume that the Alabama courts (Inaudible)
Leslie Hall: Well, the -- I think the Alabama Supreme Court would have to reverse what it said in this Brune (ph) case that I was just quoting from about a person taking his chances on getting an acquittal and then if he's dissatisfied and gets convicted, he could then comeback with a motion for new trial and seek to do something that he couldn't do otherwise. Therefore, it's my honest argument gentlemen that the Court affirmed the opinion of the Supreme Court of Alabama.
Earl Warren: Mr. Hall, I just want to ask you one question. I reviewed this para -- short paragraph from the brief of the petitioner. He says, this opinion of the Supreme Court suggest that the Court shows to ignore that failure to raise the question of systematic exclusion, because the case came to that Court under the automatic appeals statute compare Arrington versus State, 253 Alabama 178, where the duty of the Court is, “to examine all evidence for reversible error without the necessity of seasonable objection.” Why do you have to say that?
Leslie Hall: Well, that is due to the statutory provision that we have in Alabama that all capital cases are -- are automatically appealed to the Supreme Court of Alabama and the Supreme Court is required to look at the whole record and determine --
Earl Warren: And -- and that -- you can make a distinction clear in that -- in these cases.
Leslie Hall: Sir?
Earl Warren: In this case.
Leslie Hall: Well --
Earl Warren: Do you --
Leslie Hall: If they found no reversible error, I don't know whether it was necessary for them to even point out wherein they failed to find no reversible error. They could make an affirmance without going into any great detail about it if they examined the whole record as they're required to do by statute.
Earl Warren: But it says, “Without the necessity of seasonable objection.” And you're pointing out to us that they didn't object to the jury --
Leslie Hall: Yes sir.
Earl Warren: -- seasonably.
Leslie Hall: Yes sir.
Earl Warren: Now that -- and your Court has said that in this kind of occasion, this is a capital case also that they're obliged to take the case and to examine all evidence for reversible error without the necessity of seasonable objections. How do you distinguish that case and this one?
Leslie Hall: I'm afraid that I can't.
Earl Warren: Mr. Meltsner.
Michael C. Meltsner: Unless the Court has some additional questions. We have no further argument.
Potter Stewart: Well, I -- I have a question. Let's -- let's assume you're right about this and you certainly are correct, actually it's correct in your -- correct in your characterization of what the Supreme Court of Alabama said. Let's assume we think that you're right, what -- what would you have us -- this Court do?
Michael C. Meltsner: Well, I think the -- the disposition should be similar to Cole. The -- the case should be reversed and --
Potter Stewart: This isn't Cole. Now Cole -- Cole was a case in which I thought the man was tried under the -- something other than which he had been charged with. I didn't mean to interrupt your answer but I -- but I -- okay.
Michael C. Meltsner: I think this petitioner is entitled to an opportunity to prove systematic exclusion in the courts of Alabama.
Potter Stewart: In the trial court?
Michael C. Meltsner: Right, if -- if --
Potter Stewart: Alright. Now, let's say we should -- just thinking you're right by hypothesis and we should set aside the judgment of the Supreme Court of Alabama and remand the case to the trial court. The trial court would be faced with the clear rule in Alabama that the way they were -- raised this is by a plea in abatement, wouldn't that be true?
Michael C. Meltsner: Well --
Potter Stewart: And therefore, I would -- I would -- I -- it's bound to follow the law of Alabama and would therefore deny you the right to put in this evidence at this late date. And that would then be affirmed by the Supreme Court of Alabama on the basis of the Alabama procedural law. Is there anything to prevent that happening?
Michael C. Meltsner: I think that's totally inconsistent with the reading of this Court -- of the opinion of the Supreme Court of Alabama --
Potter Stewart: Yes.
Michael C. Meltsner: -- which this Court would have to make to make that disposition of the case. In other words, to dispose of a case as we suggest --
Potter Stewart: Yes.
Michael C. Meltsner: -- one reason the -- the Supreme Court's opinion is putting the waiver rule aside saying it's not the law of this case.
Potter Stewart: In this case.
Michael C. Meltsner: That's right. You had an opportunity. And certainly the -- the Supreme Court of Alabama had indicated in the past that it -- it had the power to do what it did in this case. But I don't think its material. All these discussions about the statute, it's not material because what the Supreme Court did in this case --
Potter Stewart: Yes.
Michael C. Meltsner: -- is crystal clear and that's the judgment before this Court, not the whole corpus of Alabama law.
Potter Stewart: Well, what -- the Supreme Court of Alabama did in this case among other things is to simply make a factually mistaken statement that the -- that the defendant was given an opportunity to present this evidence. Now, the facts are that he wasn't.
Michael C. Meltsner: And that is --
Potter Stewart: Would they?
Michael C. Meltsner: In that sense denies the petitioner an opportunity to sustain a federal question.
Potter Stewart: Now, you would have us therefore say that despite the law of Alabama which requires in its clear terms that an objection to the makeup of the grand jury has to be raised by a plea in abatement before arraignment on indictment. Despite that clear law, we're to say that in this case, because of the language of the Supreme Court's opinion, this man has a right to a trial of that issue on a motion for a new trial.
Michael C. Meltsner: I suppose, what I'm saying is that this case is also the law of Alabama.
Potter Stewart: Yes.
Michael C. Meltsner: That -- that those statutes don't constitute the full corpus of Alabama law that this cases (Voice Overlap) --
Potter Stewart: Because of this opinion.
Michael C. Meltsner: And this opinion must be read as holding that you can raise the question for the first time.
Potter Stewart: In this case at least.
Michael C. Meltsner: In the -- in this case --
Potter Stewart: Yes.
Michael C. Meltsner: -- but this case also holds that you can raise the question for the first time on motion for new trial.
Potter Stewart: Of course if you --
Michael C. Meltsner: And --
Potter Stewart: This case also holds or at least the opinion says that this man was given a full opportunity to produce this evidence. So we can't take this -- all of these -- all the words --
Michael C. Meltsner: No.
Potter Stewart: -- in this opinion and -- and decide that --
Michael C. Meltsner: Well, maybe --
Potter Stewart: -- he states the law of this case.
Michael C. Meltsner: Well, I think, there, we have to draw some distinction between the -- the interpretive function of this Court and -- and what this opinion says is Alabama law. Now, that perhaps I should indicate that -- that this -- the rule of these statutes is hardly inflexible. The Supreme Court of Alabama in the Clark case cited in brief, in 1940 faced with the identical situation, the question was raised for the first time by a new lawyer on motion for new trial.
Tom C. Clark: Well, I have that opinion in front of me and I don't agree with you reading that, I must say. What the Supreme Court of Alabama did in that case was this, it's another (Inaudible) It said that the motion was not timely. Then it went out and said, “However, we've looked at the evidence and we don't think that the evidence in the record sustains the report.” And that's (Inaudible) and in the paragraphs on page 386, that's not (Inaudible) The Court is claiming that the motion was not timely made and therefore it hasn't any proper motion. However, we've looked at it and we don't think there's any (Inaudible)
Michael C. Meltsner: Well --
Tom C. Clark: (Inaudible)
Michael C. Meltsner: Well, I -- there are -- there is language in that opinion which I think is much stronger than that. After all the court says we are at the opinion and so hold and then decides the case on the evidence.
Speaker: Is it --
Michael C. Meltsner: (Inaudible)
Speaker: (Inaudible) No plea in abatement was brought in this trial, (Inaudible) that it should've been (Inaudible) and the evidence to support and the attempts to be made for the first time on a motion for a new trial. And that's the time to do it. But without regard for the (Inaudible) in presenting the question, then it goes out and (Inaudible) He makes clear that the evidence (Inaudible) I -- I just don't see this as --
Michael C. Meltsner: Well --
Speaker: -- strongly as you do.
Michael C. Meltsner: Well it -- if the Supreme Court of Alabama had the discretion to decide on the basis of the evidence then -- then our problems are solved because -- then this Court has discretion to review the federal question. And also, it's -- it's easy to see why the Supreme Court of Alabama did what it did in this case because it had the power to decide the case on the evidence alone. Whether or not it did in the Clark case, it certainly indicated that it had the power to do so. And there is like language in the Arlington case and there is like language in the Sills and Howard cases. But, I reiterate, I don't even think that's important because this judgment is bottomed on a finding that you can raise the question on motion for new trial for the first time.
Potter Stewart: Well, now what -- so -- so you asked us to set aside the judgments of the Supreme Court of Alabama, remand this case to the trial court for a full hearing on -- whether or not there was a racial discrimination in the selection of the grand jury, is that correct?
Michael C. Meltsner: Yes.
Potter Stewart: Alright. Now, taking it -- let's assume that we do that that. That we think you're right and we do just that. And then let's say the -- the trial court in Alabama has such a hearing and -- and decides that there was -- here's -- here's a lot of evidence and then decides on the evidence that there was no -- no such racial discrimination. Then it comes up to the Alabama Supreme Court which then says, “Well, it's a matter -- matter of Alabama law. We're not even going to look at that evidence because it was too late.” All I had to -- has been done by a plea of in -- plea in abatement.
Michael C. Meltsner: Well, I -- I think that would just be totally inconsistent with these Court's mandate.
Potter Stewart: Well, but that -- that's the --
Michael C. Meltsner: The court did --
Potter Stewart: Decides the Alabama law, isn't it, the Supreme Court of Alabama?
Michael C. Meltsner: That's true. It's decided that in -- it has failed to assert the state --
Speaker: Was the --
Michael C. Meltsner: -- procedural ground in this case.
Speaker: Or any steps --
Michael C. Meltsner: (Inaudible)
Speaker: -- taken below by either side to get the Alabama Supreme Court to say what it meant, I should think.
Michael C. Meltsner: Yes, we filed application for rehearing and in two briefs filed to support that application, pointed out that we did not have an opportunity in the trial court to introduce evidence. At that point, the states switched its ground that it had been arguing waiver all the time, and it said, “You did have an opportunity", something which -- which counsel of the State here today agrees that we did not have. The rehearing was denied for that opinion. May I say this Mr. Justice Stewart, I -- I think that the problem you poses is perhaps inherent in -- in this Court's jurisdiction. And whenever it decides a -- a question of -- whenever it decides what a Supreme Court of a state has done with respect to state law, this problem is involved.
Potter Stewart: It seems to be, quite rightly involved in -- with the Supreme Court of Alabama. We had that argued yesterday.
Byron R. White: Could you -- could you we maybe asking to correct the Title and Section here, and that your law (Inaudible) the Alabama Supreme Court (Inaudible) Now, (Inaudible) that the Supreme Court of Alabama, it says, "Well, there were two grounds (Inaudible) before us. We just have to (Inaudible)3 rules on federal grounds, (Inaudible) What authority do you have, this Court, you say in the (Inaudible)
Michael C. Meltsner: I'm afraid I don't have any. I -- I haven't considered the question.
Hugo L. Black: What do you think about the -- when was this automatic appeals statute passed?
Michael C. Meltsner: It was passed in 1941 after the --
Hugo L. Black: (Inaudible) -- this cases only?
Michael C. Meltsner: Well, --
Hugo L. Black: Does it relate to -- what kind of cases does this relate to?
Michael C. Meltsner: Oh, we have -- we have -- it relates to capital cases.
Hugo L. Black: Capital -- capital --
Michael C. Meltsner: Yes.
Hugo L. Black: -- case.
Michael C. Meltsner: This is a capital case.
Hugo L. Black: And it says that that may be explained in the Supreme Court's opinion, I am trying to think it might. It says that in all cases of automatic appeals, the appellate court may consider its discretion in a testimony that was here to be prejudicial to the rights of the appellants may reverse thereon even though no lawful objection or exception was made therein. They might have construed that to mean that that's related to the -- an offer of new testimony and that was prejudicial. Which would -- I would presume overriding the other section about the plea in abatement. This was a statute, was it not, passed for the legislature.
Michael C. Meltsner: That's correct. We -- we have cited that -- that provision as supportive of the power of the Supreme Court of Alabama to do what it's done here and suggested it could in other cases.
Speaker: Was there an offer of proof of any grievance?
Michael C. Meltsner: Three times, record shows on pages 19 and 20, that counsel sought to tell the Court what he was going to be prove.
Speaker: (Inaudible) they were -- what I had in mind here is, (Inaudible) Do you think that the Alabama Supreme Court was saying (Inaudible) that will allow to prove what he wanted to prove to the United States (Inaudible)
Michael C. Meltsner: If defendant had been permitted to prove what he wanted to prove, I'm afraid that he can't read the opinion that way.
Speaker: How long (Inaudible) I would think the Alabama appeals statute (Inaudible)
Michael C. Meltsner: Yes, except that it's unclear what the word "evidence" means. It might -- it may mean evidence that could've been brought out which was precluded by a ruling of the lower courts.
Speaker: No, no.
Michael C. Meltsner: Now, I have no case which says that but I --
Speaker: (Inaudible)
Michael C. Meltsner: As applied in the Supreme Court of Alabama's discretion. Thank you.
Earl Warren: You're welcome.


Earl Warren: Number 4, Marc D.Leh, etcetera, Petitioners, versus General Petroleum Corporation, et al. Mr. Harris.
Richard G. Harris: May it please the Court. In this matter, we have had, within the past several months, the decision of this Court in Minnesota Mining & Manufacturing Company versus New Jersey Wood Finishing which was cited in the brief. In that case, the test laid down by this Court for determining the question of tolling was stated to be “was the conduct challenged by the plaintiff complained of in the government action?” As stated at page 323 of the Minnesota Mining case. I submit to the Court that the conduct challenged by the plaintiff was complained of in the government action and referred to the overt acts challenged by the plaintiff and contrast them with the overt acts or conduct complained of by the Government in the following particulars. In the plaintiffs' complaint, we alleged overt acts consisting of, among others, controlling the sale and distribution of refined gasoline in the Southern California area, denying independent jobbers access to a source of supply of refined gasoline, preventing independent jobbers from obtaining refined gasoline from other sources. The government complaint, on the other hand, at paragraphs 70 (b) (6), (7), (8), (10), (11), (12), and (15), charges the defendants there named with foreclosing independent wholesale and retail markets otherwise available to independent refiners by requiring independent jobbers, wholesalers, and retailers to handle exclusively the refined petroleum products of the defendant majors. Again, the plaintiffs' complaint states as an overt act that the defendants prevented the customers of independent jobbers to retailers from obtaining gasoline with which to compete with retail service stations and outlets operated or controlled by the defendants there named. The government complaint, on the other hand, charges the defendants there named with maintaining agreed upon wholesale and retail prices by refusing to sell gasoline to any wholesale or retail distributors who refuse to follow the prices fixed and by adopting the uniformed policy of refusing to sell gasoline to any wholesale distributor, jobber, or retail dealer who would not agree to sell the products of a single dependent major on an exclusive dealing basis. Again, the plaintiffs' complaint charges the defendants with maintaining fixed artificial and uncompetitive prices for the wholesale and retail sale of refined gasoline in the Southern California area. The government complaint charges the defendants there named in almost identical language with fixing and maintaining uniform and noncompetitive resale prices to the charged consumers by retailers handling gasoline. The plaintiffs charge as an overt act that the defendants destroyed any substantial competition afforded them in the wholesale and retail selling and marketing of refined gasoline in the Southern California area. The government complaint charges the defendants with sharing wholesale and retail markets in the sale of gasoline by standardizing the various grades, qualities, and structure of gasoline and by selling gasoline and other refined products at identical prices. The plaintiffs' complaint in the private case charges the defendants as an overt act with controlling the sources of refined gasoline in the Southern California area, and preventing and precluding independent jobbers from obtaining source and supply. The government complaint, on the other hand, charges the defendants with fixing and maintaining uniform and noncompetitive prices for the sale of gasoline by causing the posting of an agreed price for each type and grade of gasoline at wholesale distribution points and by causing each other to post and charge identical prices at such points. Now, from a comparison of those overt acts alleged by the plaintiff in the private case with the comparison of the charges by the Government in the government case, it is submitted that the test of this Court in Minnesota Mining, to with, was the conduct challenged by the plaintiff complained of in the government action, is more than satisfied. However, the respondents in this case address themselves to three distinctions which they urge differentiate that conduct which has just been compared. Distinction number one is that the complaint in the government case charges a conspiracy commencing in or about the year 1936, whereas, the complaint in the private case charges a conspiracy commencing in or about the year 1948. Now, again, in addressing myself to this distinction, I do so by asking, “Is the Government complaining of conduct in 1936 or is the Government complaining of conduct at all times and including 1948 and right up until, and including 1950, the time of filing of the government antitrust action?” In my references, I will refer to the appendix filed by respondents of the government complaint since it's -- since it's in a brief form rather than the typewritten record on which this case is being presented. In answer to that question of 1936 versus 1948 and what the government was complaining about when it filed its complaint in 1950, I refer first to the appendix at page 40, which takes up at that point at paragraph number 21 of the government complaint. At that point, the Government, in its complaint, points out that the Conservation Committee of California Oil Producers had its inception in 1930 but that the present committee was organized in 1936 and goes on to state, in effect, its formation constituted merely a reorganization of predecessor organizations. So that, the 1936 date used in the government complaint, I submit, is clarified as the date upon which the Conservation Committee of Oil Producers was reorganized. At page 49 and 50 of the appendix, commencing at numbered paragraphs 46 of the government complaint, it is to be emphasized, that in describing the commerce and trade affected, the government is not talking about something that happened in 1936 as a static and frozen thing. The Government says, as of January 1, 1949, there were approximately 64 crude oil refineries. Their complying crude oil import -- input was so many barrels per day. Again, further on that, as of January 1, 1949, there were so many barrels refined from the refineries that were opened and 17 refineries were, at that point, idle. At pages 52 and -- at page 50, rather, numbered paragraph 50, during 1948 the total gasoline produced by refiners in the Pacific States area was approximately 120 million barrels, at which defendant majors produced and sold approximately 108 million barrels for approximately 90%. At pages 52 and 55 of the appendix, numbered paragraph 56, the Government, in concluding the description of the trade and commerce affected, uses these very significant paragraphs. And it is to be emphasized that it was emphasized by this Court in the Minnesota Mining case where the Court might recall there was an argument made that the Federal Trade Commission, in that case, was put to a burden only of showing a possible effect on competition, whereas, the plaintiff was put to the burden of showing an actual effect on competition. And, the Court pointed out as a significant factor that the Federal Trade Commission had alleged both in terms of possible and positive effect that is that there could be restraint and that there was a restraint. So, also, the Government in this case alleges speaking in the present tense, not about 1936. Each defendant major requires independent distributors who handled its refined petroleum products to deal exclusively in the refined petroleum products of said defendant major, and to refrain from dealing in the petroleum products of independent refiners and marketers. Each defendant major also requires the independent distributors handling its refined petroleum products to sell said products to retail dealers and to large consumers at prices fixed by defendant majors, and otherwise, to conduct their business in the manner desired by defendant majors. At page 55, each of the defendant majors -- this is numbered paragraph 62, each of the defendant majors requires the independent operators who sell its refined petroleum products to purchase the requirements exclusively from the respective defendant major and not to handle or sell the petroleum products of others. At page 58, at the top of the page, except for the area within a three-mile radius of Los Angeles Harbor, defendant majors enjoy, in the present tense, a virtual monopoly in the wholesale and retail sale of gasoline and other refined petroleum products manufactured and sold in the Pacific States area. Now, Mr. Kirkham will undoubtedly say that I have quoted up to that point from numbered paragraph 4 of the government complaint which describes the trade and commerce affected. However, I submit that is relevant in determining whether the Government is there talking about 1936, 1948, or 1950, or a combination in a continuing thing going up until June of 1950 and thereafter which they were trying in 1950 to prevent. However, commencing with paragraph V, charging the actual offenses set down by the Government at page 58, numbered paragraph 69, the actual language used by the Government is the following, “beginning in or about the year 1936 and continuing thereafter up to and including the date of filing the complaint, the defendants have been and now are engaged in a combination and conspiracy to restrain unreasonably,” etcetera. In numbered paragraph 70, “the actual monopolizations have consisted of continuing agreement and concert of action among the defendants, its potential terms of which have been,” etcetera. And, again -- and, finally, at page 66, “in concluding immediately before the prayer, the Government accuses the defendants of controlling completely the competition of independent producers, retailers and marketers.” And you'll recall that in the brief in opposition in this case, the respondents have said that they wish to ignore everything but the marketing aspect. Of course, the Government was concerned with all phases, and I will advert to that shortly. But, the Government specifically accuses the defendants of controlling completely the competition of producers, refiners, and marketers. The defendant majors' quadruple monopoly of the production, transportation, refining, and marketing of crude oil and refined petroleum products “has stabilized completely the entire oil industry in the Pacific States area and has resulted in the elimination of all price competition in the sale to consumers of gasoline and other refined petroleum products. Now, it is submitted, therefore, that Government was concerned with a conspiracy which was in existence at least from 1936 and probably earlier than 1936 date being selected because of the reorganization on that date of the Conservation Committee of California Oil Producers, and was concerned with conduct which was continuing in 1948, 1949, and 1950. And that, therefore, with in the test laid down by the Minnesota Mining case of whether the Government was complaining of conduct complained of in the plaintiffs' complaint, the plaintiffs submit that it was. As stated by the Court in Philco versus R.C.A, cited in the brief, we see nothing novel in stating a conspiracy within a conspiracy. And, indeed, that would seem to be the normal situation in the private antitrust case. In other words, the Government is concerned with conspiracy in a grand manner on a grand scale covering perhaps the nation or in this case, the five western states. The impact of that conspiracy on a local level is what the individual private litigant is concerned with, and it has been referred to several times in this term of conspiracy within a conspiracy or a smaller conspiracy within the large, and seems to be the typical pattern.
Tom C. Clark: Your -- your case involves the help yourself or self-service, what do you call it?
Richard G. Harris: Yes, Mr. Justice Clark. We were distributors or jobbers of gasoline to self-service stations. We were not retailers. We sold the gasoline to the retailer who, in turn, sold it through a self-service channel.
Tom C. Clark: Your defendants, are they the same as the other defendants in the standard stations?
Richard G. Harris: No, they are not, and I will refer to that as the second distinction urged here. The defendants do not include, in this case, the Conservation Committee of California Oil Producers or the Shell Oil Company. On the other hand, we have included as a defendant, now dismissed, the Olympic Oil -- the Olympic Refining Company which was not included in the government case.
Tom C. Clark: You've dealt with these defendants, your man?
Richard G. Harris: Yes, they dealt with the defendants, specifically General Petroleum Corporation and Olympic Refining Company.
Tom C. Clark: When the -- when was the inception of the help yourself idea?
Richard G. Harris: Approximately 1947, Mr. Justice Clark. The date being selected, it received nationwide coverage in a magazine, Life Magazine, and, as a matter of fact, the station there portrayed was the very station that my plaintiffs were servicing as jobbers, the Gilmore station. That is in the nationwide magazine showing the new way of marketing gasoline. It so happen that the Gilmore station was portrayed in that magazine. This was approximately 1947.
Tom C. Clark: The standard station was filed in '50?
Richard G. Harris: June of 1950.
Tom C. Clark: Thank you.
Richard G. Harris: The interesting thing about the idea of a conspiracy within a conspiracy is that it has been used in a much stronger setting than is urged by the plaintiffs in this case, and that setting is under Section 5 (a) rather than Section 5 (b). In other words, it has been used as prima facie proof of a local combination or conspiracy from the national combination or conspiracy shown to exist by the Government in the government action. And, I would like to cite two cases not cited in the brief in that particular. The first is Loew's Inc.versus Cinema Amusements, a case in which two of the members of this Court were on the brief, reported at 210 F.2d, page 86, the Tenth Circuit of 1954, page 86 particularly page 90. And, Twentieth Century-Fox Film Corp. versus the Brookside Theatre Corporation, reported at 194 F.2d 846, particularly to 853, 1729 an Eighth Circuit case, 1952. In those cases, we had the concept of a national conspiracy being proved to exist by the theatre cases which was then applied as prima facie evidence of a local-level conspiracy, and this was again referred to in the Nisley case, which I have set in the brief at page 529 of Nisley. Now, the Tenth Circuit and Eighth Circuit agreed with that treatment. The Seventh Circuit, however, when faced with the problem of whether or not a decree would be used as a prima facie evidence which is, admittedly, a much stronger thing than the plaintiffs are here seeking. The Seventh Circuit refused to go along in a hypothetical situation which is stated very clearly in another case not cited in the brief, Sun Theatre Corporation versus RKO, 213 F.2d 284, at page 290, Seventh Circuit, 1954. In that case, the Court set up a hypothetical complaint and conspiracy in terms of a, b, c, and d as follows. If a decree is entered that a, b, c, and d have conspired together on a national scale to eliminate competition, this decree is admissible in plaintiffs' action as prima facie proof of the nationwide conspiracy but not to prove the existence of a conspiracy directly affecting any particular locality. Now, the Tenth and Eight Circuits took exactly the contra view of that particular proposition and said that it was admissible to prove the conspiracy at a local level. However, when the Seventh Circuit addressed itself to the question of tolling at page 291, it said as follows, “our hypothetical complaint charges and our hypothetical decree finds that a, b, c, and d conspired together to eliminate competition on a national scale. The decree is prima facie evidence as to this question only, and then going on very significantly, p rips the full benefit of Section 5 if the statute is suspended as to the parties named.” So that, apparently, the Seventh Circuit, while refusing to apply the decree as prima facie evidence under Section 5 (a), would nevertheless suspend the statute at a local level under Section 5 (b) which is all that we are seeking here. The second distinction referred to by the defendants is that the conspirators are not identical. Mr. Justice Clark has already pointed out by his questioning and I have stated wherein the conspirators are not at -- conspirators are not identical. Now, this was a relevant test under the Steiner case. However, it is no longer a relevant test under the case of Minnesota Mining and Manufacturing, as decided by this Court last May, because under that case, of course, we no longer have the rules of or never did have in that case decided that the rules lf collateral estoppel were no longer pertinent under Section 5 (b) while perhaps still pertinent under Section 5 (a). Therefore, whether or not the defendants are or are not the same is not any longer a distinguishing feature, and I think that contention has been completely eliminated by the Minnesota Mining case. The third distinction urged by the -- the respondents in this case is that the cut-off date, that is our overt act which caused us damage which reached us and hurt us, occurred in 1954, some-four years after the filing of the government complaint in June of 1950. However, for several reasons, this is a distinction without substance. Number one, the legislative history quoted in the brief, while as I stated in the brief it is somewhat ambiguous, lends credence to the idea that violations occurring after the filing of the government complaint are likewise to be tolled. Number two and more important, as a question of policy, certainly, if this Court, as it has committed itself to do in the Minnesota Mining case, desires to give the full benefit to the private litigant of government antitrust actions, it would be a very strange rule to state that no tolling were to exist after the filing of the government complaint. It would be as if by magic, all offenses were to stop with the filling of the government complaint. And, in fact, instead of protecting the private person, it would hurt the private person and that it might give the persons charged in the government complaint a right to do things as to which the statute of limitations would run whereas, beforehand, the statute of limitations would be suspended. Finally, this same situation --
Potter Stewart: But before you go on, if you may, I don't -- I didn't quite get that last point and I wonder if you could illustrate what you mean.
Richard G. Harris: Yes. In this case, we have a situation where the Government has filed a lawsuit in June of 1950.
Potter Stewart: Yes.
Richard G. Harris: Now, let us assume that we had a violation of the antitrust laws, hurting a private litigant in 1949. There would be no question, assuming that we have the necessary holder in part doctrine under Section 5 (b) complied with. There would be no question but there would be a suspension of the running of the statute of limitations on that cause of action for as long as the government case was filed. In this case, it was filed for a full 10 years, from 1950 to 1960. However, if the Court were to adopt the doctrine and say that any overt acts happening after June of 1950 are not suspended so that, let's say, in 1954, as in our case, we were cut off, we alleged, the statute of limitations would run on us and we would be barred using the four-year statute which is now uniform. We would regard in 1958, whereas the cause of action which accrued in 1949 would continue merrily on its way until 1961. That is to say, 10 years, the period of the Government's suit plus the one year extra allowed, which is a very anomalous result and I'm certain that's not one that was intended by Congress.
Potter Stewart: I see what you mean.
Richard G. Harris: And, the Green's case has expressly stated that this should not be so. I have cited the Green's case in the brief but not for this particular point. And, I refer now to page 336. At page 336, Green says as follows, “It was the purpose of Congress that a person, desirous of taking advantage of the use as prima facie evidence of a judgment or decree rendered in a suit brought by the United States under the antitrust laws, might have an opportunity to do so in a private action commenced after the government suit had ended,” and then the very significant phrase added, “even though his cause of action arose while the latter suit was pending,” which is exactly what's happened here. Our cause of action arose in 1954 while the government suit was pending. That's at 336 of Greens which is in 232 Federal Reporter. We submit, therefore, that the private right of action asserted by the plaintiffs in this case is based, at least in part, on matters complained of in the Government's suit. This is all that is required by 5 (b) and all that is required by Minnesota Mining laid down by this Court in May of this year. Thank you.
Earl Warren: Mr. Kirkham.
Francis R. Kirkham: Mr. Chief Justice, may it please the Court. At the outset, I should say that there are no disputed issues of law that remain in this case. We have no disagreement as far as this particular case is concerned with any of the tests that have been urged by petitioners, either in their brief or at the oral argument. The only question that remains, is one of fact on the test that we concede to be the same as those that petitioner has stated, was the plaintiffs' complaint in this case based in whole or in part on any matter complained of in the Government's complaint. The Government's suit was brought in 1950. The plaintiff alleges -- plaintiff in a suit brought in 1956, during the pendency of the government case which was finally settled in 1958. The suit brought by plaintiff in 1956 alleged a conspiracy commencing in or about 1948 which injured him in 1954. In appraising the relationship between the two cases, one matter should be kept in mind. The case was filed in 1956 in the same Court in which the Government's action had been pending for six years. The government case was familiar to the plaintiff and if there had been a cause of action which plaintiff deemed -- plaintiffs deemed was one that was complained of by the Government, certainly, they had the full opportunity to plead at that time. Secondly, pretrial proceedings have occurred over the course of more than six years, thousands of pages of discovery, and the decision of the Court upon this motion was made in the District Court after the discovery. There -- certain facts have come out which are undisputed, which served to clarify, in part, the situation of parties upon the complaint itself. In the first place, as petitioners up here stated, petitioners are what are called rebrand jobbers. In California, as in many states, gasoline is sold by the major oil companies under the major oil brand, Standard Gasoline, Union Gasoline, and so on. Under the statute of the State of California, that gasoline may be sold to an independent jobber and rebranded, if permission is given, and that is the familiar gasoline seen usually in the stations of independence. The Standard of California might sell to a rebrand jobber of gasoline. That will be rebranded and resold as Gilmore Gasoline and its station. Now, the essence of petitioners' complaint in this case is that the defendants in this case conspired to eliminate this type of operation. He was a member of the class of rebrand jobbers and the defendants conspired to eliminate him from competition. If we turn to the allegations of the complaint in this case which is set out at page 18 of our appendix, the aforesaid combination -- I'm now reading the plaintiffs' case, “the aforesaid combination conspiracy to restrain trade and commerce, and so on, consisted of the following agreement and concert of action, (a) agreed to exclude independent jobbers of refined gasoline from the distribution of refined gasoline throughout Southern California area by forcing such independent jobbers out of the market, eliminating a source of supply of refined gasoline to such independent jobbers, eliminating all competition by or from such independent jobbers.” There followed then, numbered paragraphs, through (h). And, the only important or significant addition to the allegations that I've read in (a) are that, in the succeeding paragraphs, the complaint alleges an agreement to eliminate the customers of independent jobbers or an agreement to maintain monopolistic control over distribution or so on by fixing and controlling the price at which gasoline would be sold, if at all, to independent dealers and jobbers selling gasoline in the Southern California area. The District Court, when it decided this case, pointed out, in line with the particularization of the issues that had arisen in the course of pretrial, that this was a case in which the charge was that the major oil companies and Olympic Oil Company, named in this -- in the plaintiffs' complaint, had conspired to eliminate this type of marketer from the market. The statements by counsel in the course of the pretrial proceedings were so limit the issues that are set out in our brief. Now, in comparison to that complaint, and I may say that I feel that for the purposes of this case which we consider to be one which is-- which should be summarily disposed of, for the purposes of this case, we should apply the broadest test that the Court would possibly apply under Section 5 (b). If we turn to the -- the allegation of the Government's complaint in the west coast case and, thereafter, a recital of the description of the industry in the west coast, the complaint at page 57 of the appendix, under the heading “Control of the Industry,” points out or alleges, which was never proved of course, that the oil industry in the Pacific States area is controlled and dominated completely by the defendant majors. Now, that suit was brought against all seven of the major oil companies operating on the west coast and the Conservation Committee of California Oil Producers which was alleged to have been a tool of the major oil companies in limiting production in aid of their monopolization of the west coast industry. It was a typical American Tobacco case, an allegation that, in an oligopolistic market, there had been a concert of action among the companies, the major oil companies that dominated the industry. And, in paragraph 65, after reviewing the industry, the Government alleged that these seven major oil companies controlled 94% of the crude oil produced, that after transportation level, they controlled approximately 97% of all crude oil trunk lines and 70% of gathering lines, that at the refining level, they controlled 85%, that at the marketing level, they controlled 86%. And then, with this allegation of the power -- the joint power of the -- alleged joint power of these companies, the complaint alleged in paragraph 69 in the general language of the Sherman Act that beginning in or about the year 1936 and continuing up to and including 1950 when the complaint was filed, the defendants engaged in a combination of conspiracy unreasonably to restrain and to monopolize and had monopolized trade and commerce in the production, transportation, refining, and marketing of crude oil. And then, specifically, in paragraph 70, come the matters complained of by the Government in this case. The aforesaid combination of conspiracy and the monopolization have consisted of a continuing agreement and concert of action among the defendants, the substantial terms of which have been that the defendants (a) agree to eliminate competition among themselves in the Pacific States area. And, may I ask the Court to just turn the page to 61 to the (b) allegation. First, they agree to eliminate competition among themselves in the Pacific States area. Secondly, and (b), they agree to utilize their control of the production, transportation, refining, and marketing of crude oil and refined petroleum products to restrict and to eliminate the competition of independent producers, refiners, and marketers in the Pacific States area. Now, under each of those subdivisions of the alleged conspiracy are the terms of the conspiracy. They are set out. And the agreement to eliminate competition among themselves in the Pacific ar -- States area was by stabilizing the amount of crude oil to be produced, by fixing and maintaining uniform and noncompetitive prices to be paid for crude oil, I'm reading the numbered paragraphs on page 59, by pulling their respective crude oil transportation facilities for the reciprocal use of each of them, and then come the allegations with respect to marketing at the top of page 60, by sharing wholesale and retail markets with each other in the sale of gasoline and other refined petroleum products. And, let me read here more particularly, (a) by standardizing the various grades, qualities, and structure of gasoline and other refined petroleum products in such manner as to make such products really interchangeable among themselves, (b) by making exchange agreements among themselves which permit each defendant major to penetrate markets not otherwise available, (c) by selling gasoline and other refined petroleum products at identical prices, thus, confining effective competition among themselves to the advertising of brand names and the offering of free services. Then, (6) by fixing and maintaining uniform and noncompetitive prices for the sale of gasoline and other refined petroleum products at wholesale by causing one to post prices and all the other to follow those posted prices, (7) by fixing and maintaining uniform and noncompetitive resale prices to be charged to consumers by retailers, resale price maintenance at the retail level, and (8) by maintaining the wholesale and retail prices agreed upon, first, by refusing to sell gasoline to those who would not sell at the prices fixed by the majors and (b) by adopting a uniform policy of exclusive dealing contracts. Now, those are the only allegations in the complaint relating to marketing except that under (b), which is the only allegation in the Government's complaint which relates to the exclusion of marketers in the Pacific States area, there is, in the last paragraph of (b) on page 64, an allegation that the major oil companies agreed to foreclose independent wholesale and retail markets otherwise available to independent refiners by requiring independent jobbers, wholesalers, and retailers to handle exclusively the refined petroleum products of defendant majors. All of the other allegations of (b) relate to the production of crude oil, Conservation Committee, and to the alleged activities of the major oil companies in seeking to eliminate independent refiners on the Pacific Coast area.
Potter Stewart: If one were to look simply at the -- at the first generalized statement of (b), that would cover, would it not, the -- and embrace the alleged wrong in the present case?
Francis R. Kirkham: If one were to look only to --
Potter Stewart: Without railroad materials --
Francis R. Kirkham: If there had been no other allegation in the complaint, it might be --
Potter Stewart: Without reference to the bill of particulars.
Francis R. Kirkham: It might be argued. Also, it might be argued that it's 69 only -- paragraph 69 only had been alleged that -- which is simply the allegation of the violation of the conspiracy and the monopolization and the terms of the statute.
Potter Stewart: Right.
Francis R. Kirkham: And nothing else. However, in response to that, Justice Stewart, such a pleading of course, with no trial, no case would ever have gone to trial on such pleading. There would have been an immediate motion for a more definite statement.
Potter Stewart: Yes.
Francis R. Kirkham: The more definite the statement would have been made, and what the Government complained of would have been set forth. Now, the very significant thing in connection with that language, Mr. Justice, is this. That the only allegation in the Government's complaint that relates to an alleged agreement to eliminate the competition of “independent marketers,” is the allegation 15 which is exactly 180% different from the right of action which is alleged by the plaintiff in this case. There, it is stated that we have attempted to foreclose independent wholesale and retail markets otherwise available to independent refiners, not by excluding independent jobbers from the market but by retaining them in the market and tying them up with exclusive-dealing contracts to sell our products instead of the products of independents, an allegation that is exactly the opposite. Now, there is no allegation, in the first place --
Tom C. Clark: Mr. Kirkham, when you deal with -- then only on an exclusive basis under 15, couldn't they?
Francis R. Kirkham: Under 15, it would be under -- yes, that the --
Tom C. Clark: Well, if an independent did not waste a deal on an exclusive basis, he wouldn't be able to be deal with an independent refiner, would he?
Francis R. Kirkham: That is the allegation. That we would tie up the independent jobbers in the situation of the plaintiff.
William O. Douglas: Mr. Kirkham, the point that you argue was -- is one that neither the District Court nor the Court of Appeals passed on, isn't that right?
Francis R. Kirkham: No, I don't think that's right, Mr. Justice Douglas.
William O. Douglas: I mean, in their opinions, they dealt with the statute of limitations.
Francis R. Kirkham: They dealt with both points. They dealt with the three-year statute of limitations and the 5 (b) point. Is that what You Honor means?
William O. Douglas: The point that you're making that the -- that these are not -- these causes of action have nothing in common or no identity.
Francis R. Kirkham: No, they -- they passed upon that point. In the opinion of the District Court, both the District Court and the Circuit Court of Appeals referred to the strict rule of the Steiner case, and perhaps we should mention that a moment. Ten years ago, in the Ninth Circuit, the Court of Appeals decided the case -- the Steiner case and there, the Court held in a case that involved the question as to whether there should be a tolling under 5 (b), there, the Court held that in order to be a tolling there must be a greater similarity, and I'm quoting from page 8 of our brief, the small brief, “there must be a greater similarity then than the same conspiracies. The same means must be used to achieve the same objectives of the same conspiracies by the same defendants,” in other words, the same overt acts. After that decision in the Steiner case, the Tenth Court -- Circuit Court in the Nisley case, Union Carbide against Nisley, expressly disagreeing with the Court of Appeals for the Ninth Circuit, said that 5 (b) should not be given such a narrow construction. I should say that, in reaching this decision, the Ninth Circuit applied the reasoning that 5 (b) should be given the same interpretation as 5 (a) with its quasi res adjudicata features. It followed Judge Wyzanski's opinion and the Momand case in doing that. In the Nisley case, the Tenth Circuit said that as of this Court did at the last term in the Minnesota Mining case, that that was too rigid a test to place upon 5 (b), that 5 (b) should be given a broader application. In the Goldwyn case, which came up later then in the Ninth Circuit, after Nisley had disapproved and disagreed with the Steiner case, the Ninth Circuit held in that case that the statute had been tolled, in a motion picture case, even though the conspiracy that was alleged by the Government in the government case had not alleged that it was directed against the class of persons to whom the petitioner belonged in the Goldwyn case. They adopted a more liberal construction and said, as this Court said in Minnesota Mining, that the plaintiff's case need be based only in part and not entirely on the allegation -- the matters complained of in the Government case. Later, the -- this case was decided and answering your question, Mr. Justice Douglas, in the District Court is the principle point considered there, as it was in the Court of Appeals, was whether the three-year or one-year statute of limitations of California applied to this case. The plaintiff had relied upon the three-year statute. It was in time that that was applicable and both the District Court and the Court of Appeals held that the one-year, and not the three-year statute, was applicable. Then the plaintiff was compelled to turn to -- to rely upon the tolling statute and it had principally relied, of course, upon the three-year statute before that. And, toward the end of the District Court's opinion, the Court does consider the question as to whether or not the plaintiff's action is -- is barred or is not tolled by 5 (b). And there, the Court cites the strict test -- the District Court cites the strict test of the Steiner case and says that under that test, the statute was not tolled. When the case got to the Court of Appeals, however, the Court of Appeals cited not only its original decision in Steiner but it cited the decision in Nisley, which was quoted and approved by this Court in the Minnesota Mining case last term. The test in the Nisley case, as I take is really the test in the Minnesota Mining case, is whether there is a substantial identity of subject matter between the two complaints. And the --
Potter Stewart: You're not depending on the Steiner case here.
Francis R. Kirkham: I'm not depending on the Steiner case. The Steiner case obviously was incorrectly decided as far as its reasoning was concerned.
Potter Stewart: Yes.
Francis R. Kirkham: I am stating, Justice Stewart, that there is not a conflict of decisions.
Potter Stewart: Yes.
Francis R. Kirkham: And that the representation that there was a conflict of decisions when the petition for certiorari was asked for was mistaken because in this case, the Court of Appeals recognizing specifically that as earlier Steiner decision stated a more rigid rule than had been stated by Nisley and having said in the Goldwyn case that it would reexamine its Steiner decision when the case -- a proper case came before it. In this case, it said that, under either the Nisley case or the Steiner case, in either of those tests there was no such identity of subject matter here as to toll the statute. So, both --
Tom C. Clark: (Inaudible) don't you think it says that if the action is based in whole or in part, on what, on any?
Francis R. Kirkham: Any matter complained of.
Tom C. Clark: Any matter. So, if you run through the two complaints, I suppose the state is going through the complaints, is it not?
Francis R. Kirkham: Well, it -- it could be based -- I think, in this case, it was based upon the ultimate issues framed after pretrial.
Tom C. Clark: On the pretrial.
Francis R. Kirkham: But, we are prepared, for the purposes of decision here, to let it rest on that or upon the memorandum of contentions or upon the complaints themselves.
Hugo L. Black: Well, your position is that there is no matter in the Government's complaint upon which the complaint here could be based. That's your position.
Francis R. Kirkham: Our position is that the plaintiffs' complaint in this case is not based in part upon any matter complained of in the Government's complaint, and that, it appears to us, is -- is -- is manifest. Now, let me state as to the matters that Mr. Harris has mentioned. In the first place, the question as to whether or not this conspiracy commenced in 1948 and the injury occurred in 1954 might be -- that is not -- we do not consider that that is determinative. When one complaint, the Government complaints -- complaint, alleges that a conspiracy commenced in or about 1936 among seven major oil companies and the conservation committee and when the plaintiffs' complaint comes along later and specifically says “my conspiracy commenced in 1948 among less than all of the defendants, six of the eight conspirators in the Government's case and one additional company,” then at least that is a flag, an indication, that there -- that there might be an entirely different cause of action alleged. And that is particularly so when the facts complained of, the conduct complained of, and the matter -- subject matter of the plaintiffs' complaint is a phenomenon in the oil industry, the self-served station, that came into existence 12 years after the complaint and the Government's case was filed. But, we don't urge that as a determinative test. Obviously, if this complaint had said that the conspiracy existed in 1948 and hurt me later on, there -- and the Government's case had said the conspiracy was formed in 36 and continued until ‘50, there wouldn't be any question. And if the plaintiff, instead of saying existed, said the plainti -- the conspiracy commenced in ‘48, whereas, the Government's commenced in ‘36, applying the substantial identity test, Mr. Justice Clark, I don't think the plaintiff would be thrown out of Court because he used the word “commenced” instead of “existed.” So, the question is “are the conspiracies the same? Are the terms of the conspiracies the same? Are the overt acts alleged to have occurred the same in such substantial degree that it can be said that they -- that the plaintiffs' case is based in whole or in part upon any matter complained of by the Government?” So, I -- I say that the fact that there is a specific allegation that the con -- conspiracy commenced in 1948 and related to an event which had not even been in existence at the time the Government's case was brought is a significant factor to consider. Secondly, on the members of the conspiracy, now this, it seems to me, is a significant fact in this case. The Government alleged that all seven oil companies in an oligopolistic market combine completely to monopolize the petroleum industry on the west coast. The Government's complaint would not have been the same in any way at all if it had alleged, as the plaintiff does in this case, that not all of the major oil companies but only part of it had combined and conspired because the presence of all of those companies was essential to the conspiracy which the Government alleged, namely an overall monopolistic conspiracy. When the plaintiff comes along and alleges a conspiracy without the presence of the Shell Oil Company or the Conservation Committee, which was -- which was kernelled that core of the Government's case, and with the presence of an independent oil company as a separate conspiracy commenced at a different time, then you are very definitely, and it seems to me uncontrovertibly, stating a different conspiracy. They can't be the same conspiracy.
Tom C. Clark: (Inaudible) a vertical conspiracy running from production through marketing.
Francis R. Kirkham: In every aspect --
Tom C. Clark: This jobber would be dealing entirely with marketing, wouldn't he?
Francis R. Kirkham: That is correct.
Tom C. Clark: So, that depends upon whether there is any matter in the Government's complaint with reference to marketing, upon which the complainant here could hang his head.
Francis R. Kirkham: Well, that -- that would be the ultimate test, Justice Clark. I think the first test that you apply in this case is “are the conspiracies the same in any way at all?” Now, the conspiracies are not the same. The Government's conspiracy is a conspiracy that all the major oil companies agreed among themselves to eliminate competition with each other and, as it is alleged in paragraph 74 of the complaint, to conduct their businesses as though they were under a single management and a single ownership in a complete monopolization. Now, the plaintiffs' complaint later on did not include the Shell Oil Company, one of the major oil companies. It included an independent oil company. It did not include the conservation committee and it did not allege a monopolization. It alleged a conspiracy on the part of those different defendants to eliminate a particular type of marketer in the business, the rebrand independent jobber. Now, if the test is “are the conspiracies the same?” and that is the test that was applied in the Nisley case and the Goldwyn case, as well as in the Steiner case, then obviously, they're not the same. But, coming to your point, Mr. Justice Clark, if we go one point beyond that, and we say that you look only to the -- you have to separate and look at every overt act or every term of the conspiracy, then if you read the term of the Government's complaint one by one through the 38 paragraphs, each one which is alleged to be a term of the conspiracy and by 71, the complaint has alleged that the major oil companies did the things which they are charged of having agreed to do so there the overt acts under the conspiracy, if you separate and treat each one of those as something complained of by the Government which, in fact, it wasn't but if you treat it as a separate conspiracy, still the plaintiffs' complaint doesn't read on any of them. Now, let me call your attention to those that refer to marketing because there are no others. They're obviously -- the other allegations concerning production, refining, and so on are not the same. If you turn to page 60 of the appendix and you look at the four allegations there that relate to marketing, paragraph 5 says that the defendants in that case agreed to eliminate competition among themselves, and let's forget the overall broad conspiracy part, and just say that the defendants agreed to share wholesale and retail markets with each other in the sale of gasoline and other refined petroleum products, how? (a) by standardizing the various grades, qualities, and structure of gasoline and other refined petroleum products in such manner as to make such products really interchangeable among themselves, (b) by making exchange agreements among themselves to prevent defendant majors to penetrate markets; (c) by selling gasoline and other refined petroleum products at identical prices, thus, confining competition among themselves to the advertising of brand names and the offering of free services. There is no allegation in the plaintiffs' complaint that reads on that in any way whatsoever. There's a primary price fixing and elimination of competition among the majors. If you turn to (6), by fixing and maintaining uniform and noncompetitive prices for the sale of gasoline and other refined petroleum products of wholesale by causing one of them to post to each of the wholesale distribution points an agreed price for each type of grade of gasoline and by causing each fee of the defendants to post and charges prices identical. Here is an allegation of primary price fixing among the defendants on the products that they sell. The plaintiff alleges only that we fix prices at which we would -- for the sale of product to a particular brand or type of distributor. If you turn over to his allegations on page 18 again, (b) -- take (b) agree to eliminate the customers of independent jobbers of refined gasoline by refusing to sell gasoline to independents, refusing to sell to the customers of independents, and fixing and controlling the price at which gasoline would be sold, if at all, to independent dealers and jobbers. Now, an allegation of an overall stabilization of price at the primary level is entirely different from a conspiracy which alleges a discriminatory use of price at a particular level and with respect to a particular class to eliminate that class of marketer from the market. Reading then in (7), by fixing and maintaining uniform and noncompetitive resale price to be charged to cus -- consumers by retailers, handling the gasoline and other refined petroleum products of defendant majors. Now there, again, there is no allegation in this complaint -- in the plaintiffs' complaint that the -- that the companies have fixed resale prices at the retail level. And then, finally, (8), and this is the one that Mr. Harris read to the Court, by maintaining the wholesale and retail prices agreed upon, how? By refusing to sell their gasoline and other refined petroleum products to any wholesale or retail distributor who fails or refuses to follow the prices fixed by them. There is no allegation in the plaintiffs' complaint that there has been -- that there was a conspiracy that refused to sell to persons that would not maintain the price, resale price maintenance. And, that's an entirely different conspiracy. So, we say that, upon examination of it, there's no issue of law between us, no conflict of decisions, and an examination of the two complaints leads to the conclusion that they are not -- that the plaintiffs' complaint is not based in part on any matter complained of in the Government's complaint. Thank you.
Earl Warren: Mr. Harris.
Richard G. Harris: Yes, in the five minutes that I have left, Your Honor, I would like to address myself briefly to three points raised by the respondent. Number one, he points out that the complaint in the government case and the complaint in the private case were filed in the same district of the same court and, therefore, we had available to us the various materials that the Government had unearthed. Nothing could be farther from the truth. Similarly, it is not so that discovery was completed in our case. In the government pleas, the files were very early sealed by court order. In fact, in 1950 or 1951, I moved in 1958 or 1959, I don't know which, to unseal those files. The files have never, to this day, been unsealed. That is still pending because, at that time, Judge Mathes suspended our case pending the outcome of the government case, the Texaco case being continued on, and then subsequently decided the statute of limitations issue so that this case should go back to the District Court. At that time, much discovery remains to be completed. The government files have never been unsealed in this case. I've never seen them.
Potter Stewart: Well, it doesn't really make any difference to the question involved at all, does it? I mean, that --
Richard G. Harris: Well, perhaps not.
Potter Stewart: The result wouldn't depend on that, on the facts --
Richard G. Harris: The inference was that I had all of these available to me and if I wanted to draw the complaint this way, I could've. It wasn't available to us.
Potter Stewart: Whether you did or whether you didn't, the statute either applies here or doesn't.
Richard G. Harris: I think that --
Potter Stewart: Whether it's filed in the same court or a court across the country 3,000 miles away.
Richard G. Harris: I think that's a fair statement, Mr. Justice Stewart. Now, the second point that was raised, the defendants or respondents place great reliance upon the fact that the government complaint charges that the defendants agreed among themselves, and they've even italicized this language at page 3 of their brief, as the Court has probably noted. However, this argument is completely laid to rest by the Goldwyn case which they, themselves, cite at page 10 of their brief because Goldwyn, you'll recall, involved a government conspiracy alleging that the theatre people were attempting to conspire and did conspire and combined to achieve a monopolization of theatres that has retail distribution of films. Goldwyn was an independent motion picture producer and it was argued all through the Goldwyn case that he was not, within a car-see language, within the target area of the conspiracy because he was an independent motion picture producer and the Government was talking about people that were conspiring to freeze distribution houses of motion pictures. And, the Court there didn't find any difficulty at all with that, even in the Ninth Circuit. They said that even though the Government talked about this type of conspiracy, Goldwyn could still be hurt by it. So, the fact that the government complaint alleges they conspired among themselves. It, seems to me, isn't relevant here, insofar as we are claiming that we have been hurt by the same conspiracy.
William J. Brennan, Jr.: Mr. Harris, had the Government's case gone to trial, would your evidence had been relevant in support of the Government's complaint?
Richard G. Harris: Well, that has been our contention from the beginning, Your Honor. Of course, we haven't seen all the evidence but there had been various motions in this case from the beginning to limit proof, to cut off proof at various dates, which we've always resisted and said we wish to go into matters going back to 1936, 1937, 1938, and so on. And, this is all part of the pretrial order and contentions which I've set forth in which it had been (Voice Overlap).
William J. Brennan, Jr.: Well, you're talking about your own case. I'm asking if the Government's case had gone to trial. I understand the Government's case was settled, wasn't it?
Richard G. Harris: That's correct.
William J. Brennan, Jr.: After you had brought your case.
Richard G. Harris: That's correct.
William J. Brennan, Jr.: And after there'd been, I gather, considerable pretrial discovery in like.
Richard G. Harris: In the government case?
William J. Brennan, Jr.: In the government case.
Richard G. Harris: Yes, Mr. Justice Brennan.
William J. Brennan, Jr.: My question was if that case had gone to trial and had been settled, the proofs on which you rely for your case have been relevant to the proof of the Government's case?
Richard G. Harris: Yes, that is my contention. I assume the respondents would resist the same as they are here, but that would certainly be my contention. Still on this point as to whether the allegations between the complaints are the same, first, the charge about conspiring among themselves has to be considered in light of Goldwyn. And then, the overt acts that Mr. Kirkham referred to at page 18 of his appendix of course alleges -- at page 18, he's referring to matters where we have set forth the terms and conditions of the conspiracy alleged at some length. However -- and these, we submit, are quite relevant and are based on, at least in part, the government case. However, when you get over to the overt acts which we allege, which of course are the things most often referred to in the decisions, at page 21 of the appendix, paragraph 22, the overt acts are practically parallel with the charge of the government complaint. And it was from the overt acts that I quoted at the start of my argument, and I won't re-quote them but, considering page 21, I don't think we have any question that we're talking about, in the language again of the Minnesota Mining case the matters complained of by the government in its case. And then, finally, there can be no question that the Ninth Circuit relied upon Steiner from simply considering the opinion which is part of the petition for certiorari, of course. It's true they cited the Nisley case in a footnote. However, the Ninth Circuit said “from Steiner versus Twentieth-Century-Fox Film Corporation, supra, this Court has already held” and then set forth the test of Steiner “(a), (b), (c),” then said “none of these tests are met.” Now, the Steiner case has not been repudiated. They did not state the Nisley test. They quoted Nisley in a footnote but it was no question that Steiner was applied by the Ninth Circuit. Thank you.