author: Mr. Justice Marshall Mr. Justice Douglas, Mr. Justice Stewart,

text:
    UNITED STATES v. SKELLY OIL CO.
    No. 280.
    Argued January 15, 1969.
    Decided April 21, 1969.

      Solicitor General Griswold argued the cause for the United States. With him on the brief were Assistant Attorney General Rogovin, Harris Weinstein, Myron C. Baum, and Loring W. Post.

      Robert L. Casey argued the cause for respondent. With him on the brief were Thomas E. Tyre, John A. Craig, and Thomas J. McCoy, Jr.

   Mr. Justice Marshall

delivered the opinion of the Court.

During its tax year ending December 31,1958, respondent refunded $505,536.54 to two of its customers for overcharges during the six preceding years. Respondent, an Oklahoma producer of natural gas, had set its prices during the earlier years in accordance with a minimum price order of the Oklahoma Corporation Commission. After that order was vacated as a result of a decision of this Court, Michigan Wisconsin Pipe Line Co. v. Corporation Comm’n of Oklahoma, 355 U. S. 425 (1958), respondent found it necessary to settle a number of claims filed by its customers; the repayments in question represent settlements of two of those claims. Since respondent had claimed an unrestricted right to its sales receipts during the years 1952 through 1957, it had included the $505,536.54 in its gross income in those years. The amount was also included in respondent’s “gross income from the property” as defined in § 613 of the Internal Revenue Code of 1954, the section which allows taxpayers to deduct a fixed percentage of certain receipts to compensate for the depletion of natural resources from which they derive income. Allowable percentage depletion for receipts from oil and gas wells is fixed at 27%% of the “gross income from the property.” Since respondent claimed and the Commissioner allowed percentage depletion deductions during these years, 27%% of the receipts in question was added to the depletion allowances to which respondent would otherwise have been entitled. Accordingly, the actual increase in respondent’s taxable income attributable to the receipts in question was not $505,536.64, but only $366,513.99. Yet, when respondent made its refunds in 1958, it attempted to deduct the full $505,536.54. The Commissioner objected and assessed a deficiency. Respondent paid and, after its claim for a refund had been disallowed, began the present suit. The Government won in the District Court, 255 F. Supp. 228 (D. C. N. D. Okla. 1966), but the Court of Appeals for the Tenth Circuit reversed, 392 F. 2d 128 (1968). Upon petition by the Government, we granted certiorari, 393 U. S. 820 (1968), to consider whether the Court of Appeals decision had allowed respondent “the practical equivalent of double deduction,” Charles Ilfeld Co. v. Hernandez, 292 U. S. 62, 68 (1934), in conflict with past decisions of this Court and sound principles of tax law. We reverse.

I.

The present problem is an outgrowth of the so-called “claim-of-right” doctrine. Mr. Justice Brandeis, speaking for a unanimous Court in North American Oil Consolidated v. Burnet, 286 U. S. 417, 424 (1932), gave that doctrine its classic formulation. “If a taxpayer receives earnings under a claim of right and without restriction as to its disposition, he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent.” Should it later appear that the taxpayer was not entitled to keep the money, Mr. Justice Brandéis explained, he would be entitled to a deduction in the year of repayment; the taxes due for the year of receipt would not be affected. This approach was dictated by Congress’ adoption of an annual accounting system as an integral part of the tax code. See Burnet v. Sanford & Brooks Co., 282 U. S. 359, 365-366 (1931). Of course, the tax benefit from the deduction in the year of repayment might differ from the increase in taxes attributable to the receipt; for example, tax rates might have changed, or the taxpayer might be in a different tax “bracket.” See Healy v. Commissioner, 345 U. S. 278, 284-285 (1953). But as the doctrine was originally formulated, these discrepancies were accepted as an unavoidable consequence of the annual accounting system.

Section 1341 of the 1954 Code was enacted to alleviate some of the inequities which Congress felt existed in this area. See H. R. Rep. No. 1337, 83d Cong., 2d Sess., 86-87 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 118-119 (1954). As an alternative to the deduction in the year of repayment which prior law allowed, §1341 (a)(5) permits certain taxpayers to recompute their taxes for the year of receipt. Whenever § 1341 (a)(5) applies, taxes for the current year are to be reduced by the amount taxes were increased in the year or years of receipt because the disputed items were included in gross income. Nevertheless, it is clear that Congress did not intend to tamper with the underlying claim-of-right doctrine; it only provided an alternative for certain cases in which the new approach favored the taxpayer. When the new approach was not advantageous to the taxpayer, the old law was to apply under § 1341 (a)(4).

In this case, the parties have stipulated that § 1341 (a) (5) does not apply. Accordingly, as the courts below recognized, respondent’s taxes must be computed under § 1341 (a) (4) and thus, in effect, without regard to the special relief Congress provided through the enactment of § 1341. Nevertheless, respondent argues, and the Court of Appeals seems to have held, that the language used in § 1341 requires that respondent be allowed a deduction for the full amount it refunded to its customers. We think the section has no such significance.

In describing the situations in which the section applies, § 1341 (a)(2) talks of cases in which “a deduction is allowable for the taxable year because it was established after the close of [the year or years of receipt] that the taxpayer did not have an unrestricted right to such item . . . The “item” referred to is first mentioned in § 1341 (a)(1); it is the item included in gross income in the year of receipt. The section does not imply in any way that the “deduction” and the “item” must necessarily be equal in amount. In fact, the use of the words “a deduction” and the placement of § 1341 in subchapter Q — the subchapter dealing largely with side effects of the annual accounting system — make it clear that it is necessary to refer to other portions of the Code to discover how much of a deduction is allowable. The regulations promulgated under the section make the necessity for such a cross-reference clear. Treas. Reg. on Income Tax (1954 Code) § 1.1341-1 (26 CFR § 1.1341-1). Therefore, when § 1341 (a) (4) — the subsection applicable here — speaks of “the tax . . . computed with such deduction,” it is referring to the deduction mentioned in § 1341 (a) (2); and that deduction must be determined, not by any mechanical equation with the “item” originally included in gross income, but by reference to the applicable sections of the Code and the case law developed under those sections.

II.

There is some dispute between the parties about whether the refunds in question are deductible as losses under § 165 of the 1954 Code or as business expenses under § 162. Although in some situations the distinction may have relevance, cf. Equitable Life Ins. Co. of Iowa v. United States, 340 F. 2d 9 (C. A. 8th Cir. 1965), we do not think it makes any difference here. In either case, the Code should not be interpreted to allow respondent “the practical equivalent of double deduction,” Charles Ilfeld Co. v. Hernandez, 292 U. S. 62, 68 (1934), absent a clear declaration of intent by Congress. See United States v. Ludey, 274 U. S. 295 (1927). Accordingly, to avoid that result in this case, the deduction allowable in the year of repayment must be reduced by the percentage depletion allowance which respondent claimed and the Commissioner allowed in the years of receipt as a result of the inclusion of the later-refunded items in respondent’s “gross income from the property” in those years. Any other approach would allow respondent a total of $1.27% in deductions for every $1 refunded to its customers.

Under the annual accounting system dictated by the Code, each year’s tax must be definitively calculable at the end of the tax year. “It is the essence of any system of taxation that it should produce revenue ascertainable, and payable to the government, at regular intervals.” Burnet v. Sanford & Brooks Co., supra, at 365. In cases arising under the claim-of-right doctrine, this emphasis on the annual accounting period normally requires that the tax consequences of a receipt should not determine the size of the deduction allowable in the year of repayment. There is no requirement that the deduction save the taxpayer the exact amount of taxes he paid because of the inclusion of the item in income for a prior year. See Healy v. Commissioner, supra.

Nevertheless, the annual accounting concept does not require us to close our eyes to what happened in prior years. For instance, it is well settled that the prior year may be examined to determine whether the repayment gives rise to a regular loss or a capital loss. Arrow- smith v. Commissioner, 344 U. S. 6 (1952). The rationale for the Arrowsmith rule is easy to see; if money was taxed at a special lower rate when received, the taxpayer would be accorded an unfair tax windfall if repayments were generally deductible from receipts taxable at the higher rate applicable to ordinary income. The Court in Arrowsmith was unwilling to infer that Congress intended such a result.

This case is really no different. In essence, oil and gas producers are taxed on only 72%% of their “gross income from the property” whenever they claim percentage depletion. The remainder of their oil and gas receipts is in reality tax exempt. We cannot believe that Congress intended to give taxpayers a deduction for refunding money that was not taxed when received. Cf. O’Meara v. Commissioner, 8 T. C. 622, 634—635 (1947). Accordingly, Arrowsmith teaches that the full amount of the repayment cannot, in the circumstances of this case, be allowed as a deduction.

This result does no violence to the annual accounting system. Here, as in Arrowsmith, the earlier returns are not being reopened. And no attempt is being made to require the tax savings from the deduction to equal the tax consequences of the receipts in prior years. In addition, the approach here adopted will affect only a few cases. The percentage depletion allowance is quite unusual; unlike most other deductions provided by the Code, it allows a fixed portion of gross income to go untaxed. As a result, the depletion allowance increases in years when disputed amounts are received under claim of right; there is no corresponding decrease in the allowance because of later deductions for repayments. Therefore, if a deduction for 100% of the repayments were allowed, every time money is received and later repaid the taxpayer would make a profit equivalent to the taxes on 27%% of the amount refunded. In other situations when the taxes on a receipt do not equal the tax benefits of a repayment, either the taxpayer or the Government may, depending on circumstances, be the beneficiary. Here, the taxpayer always wins and the Government always loses. We cannot believe that Congress would have intended such an inequitable result.

The parties have stipulated that respondent is entitled to a judgment for $20,932.64 plus statutory interest for claims unrelated to the matter in controversy here; the District Court entered a judgment for that amount. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to that court with instructions that it be returned to the District Court for re-entry of the original District Court judgment.

Reversed and remanded.

Mr. Justice Douglas,

dissenting.

I share Mr. Justice Stewart’s views as to this case and add only a word.

If we sat in chancery reviewing tax cases, much of what the Court says would have appeal. But we do not sit to do equity in tax cases; that is one of Congress’ main concerns.

The search for equity in the tax laws is wondrous and elusive. As Edmond Cahn said: “[T]hose only are equal whom the law has elected to equalize.” E. Cahn, The Sense of Injustice 14 (1949).

Percentage depletion had its roots in granting a reward to men who go into undeveloped territory in search of oil and gas. But today it is granted anyone who has an interest in oil or gas; the beneficiary need not live the life of the oil wildcatter or bear his risks to obtain the benefits of percentage depletion.

When it comes to capital gains what “equities” are to be applied? Is it fair that earned income pay a heavier tax?

A son who spends $1,000 on his destitute father does not get the same tax benefit as he who pays a like sum to his alma mater. Louis Eisenstein pursues example after example of so-called inequities in tax laws in his book The Ideologies of Taxation (1961). For example, the profits on the sale of unbred pigs are taxable as ordinary income, while the profits on the sale of pigs once bred are taxable as capital gains. Id., 174. The same is true of turkeys but not of chickens, even though “a bred chicken and a bred turkey are similarly situated. Each has feathers and two legs." Ibid.

Treasury recently noted numerous basic inequities resulting in preferred tax treatment for some people’s dollars. Tax Reform Studies and Proposals, U. S. Treasury Dept-., Joint Publication of House Committee on Ways and Means and Senate Committee on Finance, 91st Cong., 1st Sess., pt. 1, pp. 13-17 (Comm. Print 1969).

Apart from certain aspects of percentage depletion were the reduced taxation on long-term capital gains and the exclusion of interest on state and local government bonds. The examples are legion. The Tax Reform study gives an unusual example:

“An individual had a total income of $1,284,718 of which $1,210,426 was in capital gains, the remaining $74,292 from wages, dividends, and interest. He excluded one-half of his capital gains, which he is allowed to do under present law, thereby reducing his present law (adjusted gross) income to $679,405 (after allowing for the $100 dividend exclusion). From this income he subtracted all his personal deductions, which amounted to $676,419 and which included $587,693 for interest on funds borrowed presumably for the purpose of purchasing the securities on which the capital gains were earned. As a result, after allowing $1,200 of personal exemptions his taxable income was reduced to $1,786 and he paid a tax of $274. His overall tax rate, therefore, was about two-hundredths of one percent.” Id., at 15.

This was made possible by using a taxpayer’s deductions only against that part of his income which is subject to the tax, ignoring the excluded part.

Tax laws are indeed arbitrary; the lines they draw are the products of pressures inside the Congress with compromises carrying the day.

The Court of Appeals held that the “item” here in question was properly included in “gross income” prior to 1958 and was an allowable “deduction” in 1958 because the taxpayer did not have “an unrestricted right” to a “portion of such item,” and that the amount of such deduction exceeds $3,000 — all as provided in § 1341. Skelly Oil Co. v. United States, 392 F. 2d 128, 131.

There is no irregularity on the face of the return. There is no conflict with any decision of any other Court of Appeals. We are asked, however, to put a gloss on the statute that Treasury desires. I would adhere to the construction given by the Court of Appeals leaving to Congress the correction of any inequities in the tax scheme.

The Congress many years ago created the Joint Committee on Internal Revenue Taxation, which is a standing committee. 26 U. S. C. §§ 8001-8005, 8021-8023. One of its statutory mandates is “[t]o investigate the operation and effects of the Federal system of internal revenue taxes.” Id,., § 8022.

In that connection a recent report states:

“[T]he Joint Committee staff has in recent years been used as a committee liaison with the Treasury Department in working on tax proposals for the committee. The staff aids the two tax committees in explaining provisions, in writing committee reports, and in aiding in the drafting of bills.”

The Joint Committee makes regular reports to Congress for revision of the tax laws. Inequities that arise as a result of interpretations that are given existing laws either at the administrative or judicial level can be quickly corrected by this agency of oversight.

Treasury unhappily has developed the habit of jockeying in the courts, testing one theory against another. In California, it may take one position and in Massachusetts the opposite position, the issue in each being the same. The hope is that conflicts over litigious and important issues will develop and the case will be brought here.

If we were trained in the art and science of taxation, we might serve a useful function. But taxation is a specialty in which we have only sporadic and no continuous experience. It has been said that one of our decisions is like a “lightning bolt” that “illuminates only a very small portion of the landscape,” leaving a darkness that later decisions do not remove. R. Paul, Studies in Federal Taxation 249-250 (3d series 1940). Our contributions, if such they can be called, are dubious indeed, for the Joint Committee can and does rewrite the Code frequently.

It is therefore the rare tax case we should consider, except the even rarer constitutional case. The present case has no constitutional overtones; the taxpayer followed the words of the tax law literally, using no new or strained construction of words to find a tax advantage; there is no conflict between this case and any other decision. The Solicitor General only claims that the result reached by the Court of Appeals does not fit the neat logic which he finds in a group of related tax cases.

An account of the cost, confusion, and inequity in tax administration that ensues while everyone waits for a conflict among the Circuits (which takes at least 10 years) is related in Griswold, The Need for a Court of Tax Appeals, 57 Harv. L. Rev. 1153 (1944). The role we presently play was stated as follows:

“Our present system of tax adjudication inevitably leaves nearly every question uncertain during the entire period while it must be dealt with, usually in thousands of instances, by the administrative officers. And yet that is just the period when there should be an authoritative rule if the system is to work smoothly, effectively, speedily, fairly, and without discrimination. Under our present system delay and discrimination are typical and inevitable.” Id., at 1161.

In absence of an unmistakably clear conflict among the Circuits, I would abide by the opinions of the Courts of Appeals in tax cases and leave to the Joint Committee whether the gloss which Treasury now tries to put on the statute is or is not desirable.

Mr. Justice Stewart,

with whom Mr. Justice Douglas and Mr. Justice Harlan join,

dissenting.

The Court today denies the respondent a tax benefit fairly provided by the Code for no other discernible reasons than that, under the statute as written, “the taxpayer always wins and the Government always loses,” and that “the approach here adopted will affect only a few cases.” Ante, at 686. But we are not free, even in a few cases, to abandon settled principles of annual accounting and statutory construction merely to avoid what the Court thinks Congress might consider an “inequitable result.”

“[T]he rule that general equitable considerations do not control the measure of deductions or tax benefits cuts both ways. It is as applicable to the Government as to the taxpayer. Congress may be strict or lavish in its allowance of deductions or tax benefits. The formula it writes may be arbitrary and harsh in its applications. But where the benefit claimed by the taxpayer is fairly within the statutory language and the construction sought is in harmony with the statute as an organic whole, the benefits will not be withheld from the taxpayer though they represent an unexpected windfall.” Lewyt Corp. v. Commissioner, 349 U. S. 237, 240.

From any natural reading of § 1341, it is apparent that Congress believed the “deduction” in § 1341 (a) (2) would be in the amount of the “'item” described in § 1341 (a)(1). If that understanding is not manifest from the face of the statute and the legislative history, it is the unavoidable inference from a study of the pre-1954 law which the Court concedes § 1341 (a) (4) was intended to codify. In every case in this area previously decided by the Court the amount deductible in the year of repayment was considered to be exactly the same as the amount of the previously included item. In two of the cases most sharply in congressional focus in 1954, the Government had conceded without hesitation that the taxpayers were “entitled to a deduction for a loss in the year of repayment of the amount earlier included in income.” Healy v. Commissioner, 345 U. S. 278, 284. See also United States v. Lewis, 340 U. S. 590, 591. That has been the express position of the Treasury since at least 1936, and the Court today has not cited a single instance of deviation from that understanding.

The Court says that § 1341 is not alone controlling and that “it is necessary to refer to other portions of the Code to discover how much of a deduction is allowable.” Ante, at 683. I agree that § 1341 must be considered in the context of the Internal Revenue Code as an “organic whole.” But no other provisions of the Code in any manner bolster the Court’s argument. The Court assumes, quite correctly, that either § 162 or § 165 does permit a deduction for the refund. But it does not, and cannot, suggest that either of those sections— or any other statutory provision — limits the amount of the deduction for the undeniable loss of profits in the full amount of the repayment. Instead the Court assumes a broad equitable authority to weed out tax benefits which it calls “double deductions” — a characterization wholly inapposite to the facts of this case.

In prior decisions disallowing what truly were “double deductions,” the Court has relied on evident statutory indications, not just its own view of the equities, that Congress intended to preclude the second deduction. In those cases the taxpayers sought to benefit twice from the same statutory deduction. In this case, by contrast, the respondent has taken two different deductions accorded by Congress for distinct purposes. In the years 1952 through 1957 it deducted the proper amounts for depletion — a deduction which is allowed by Congress “on the theory that the extraction of minerals gradually exhausts the capital investment in the mineral deposit,” and which is “designed to permit a recoupment of the owner’s capital investment in the minerals so that when the minerals are exhausted, the owner’s capital is unimpaired.” Commissioner v. Southwest Exploration Co., 350 U. S. 308, 312. The respondent’s 1958 deduction was granted by Congress for the entirely different reason that the refund of previously reported income constituted a loss, or business expense. In purpose and effect the deductions are wholly unrelated, and each is sustainable on its own merits. Certainly it cannot be said either that the respondent did not in fact exhaust the capital assets for which the deductions were allowed in 1952 through 1957 or that it did not suffer a business loss by the 1958 repayment.

The sole nexus between these distinct transactions on which the Court constructs its “double deduction” theory is that the depletion deductions were computed as a percentage of gross income from the property. But this fact cannot distinguish percentage depletion from any other deduction. If the respondent had elected to take cost depletion in 1952 through 1957, for example, there would also have been a portion of the gross income in those years — perhaps less than 27%%, perhaps more— which was not included in taxable income. Whether a deduction is computed as a fixed percentage of income or in some other manner, it always reduces by some percentage the income which is ultimately taxed. There are other deductions, of course, whose amount is a function of a certain percentage of the taxpayer’s income. With respect to the individual taxpayer, the standard 10% deduction, § 141, and those for charitable contributions, § 170, and medical expenses, § 213, are doubtless the most frequent. Under the Court’s ruling today, any taxpayer who repays money included in gross income in a prior year in which he also took one of the above mentioned deductions will have to reduce his refund deduction by that portion of the previous year’s deduction attributable to the included income. Surely this result contravenes the purpose of the annual accounting concept to prevent recomputations of the prior year’s tax.

The Court says today that there can be no deduction “for refunding money that was not taxed when received.” Ante, at 685. This means nothing less than that, whenever a taxpayer seeks to deduct a refund of money received as income under a claim of right in a prior year, the deduction must be reduced by the percentage of gross income in that prior year which, for whatever reason, was not also taxable income. Otherwise there will be precisely the same kind of so-called “double deduction” as the Court finds in this case.

It is clear that the Court has wrought a major transformation of the deduction which has heretofore been allowed and which Congress recognized in § 1341 (a)(4). That deduction is permitted because, in the words of § 1341, the item “was included in gross income for a prior taxable year” (emphasis added), not because it was included in taxable income. It is no answer to say that the “annual accounting concept does not require us to close our eyes to what happened in prior years.” Ante, at 684. Of course we must look to the prior years to ascertain the amounts included in gross income and the nature of that income as it bears on the provision under which it is deductible in the year of repayment. Arrowsmith v. Commissioner, 344 U. S. 6. But the very purpose of the annual accounting concept is to preclude adjustments in the amount of the deduction to reflect the tax consequences of the item's inclusion in the prior year.

“Congress has enacted an annual accounting system under which income is counted up at the end of each year. It would be disruptive of an orderly collection of the revenue to rule that the accounting must be done over again to reflect events occurring after the year for which the accounting is made, and would violate the spirit of the annual accounting system. This basic principle cannot be changed simply because it is of advantage to a taxpayer or to the Government in a particular case that a different rule be followed.” Healy v. Commissioner, 345 U. S. 278, 284-285.

One of the major factors, in addition to changes in tax rates and brackets, that determine who will benefit from adherence to the annual accounting principles embodied in § 1341 (a) (4) is the extent to which the taxpayer had deductions in the prior or subsequent taxable years to offset gross income. And it is no less inconsistent with annual accounting principles to pare down the allowable loss deduction in the year of repayment because of other deductions in the year of inclusion than because of a lower tax rate or bracket in that year.

Because I cannot agree that the Court’s equitable sensibilities empower it to depart from the sound principles of tax accounting specifically endorsed by Congress in § 1341, I respectfully dissent.

       Section 1341 (a) provides:
      “If—
      “(1) an item was included in gross income for a prior taxable year (or years) because it appeared that the taxpayer had an unrestricted right to such item;
      “(2) a deduction is allowable for the taxable year because it was established after the close of such prior taxable year (or years) that the taxpayer did not have an unrestricted right to such item or to a portion of such item; and
      “(3) the amount of such deduction exceeds $3,000,
      “then the tax imposed by this chapter for the taxable year shall be the lesser of the following:
      “(4) the tax for the taxable year computed with such deduction; or
      “(5) an amount equal to—
      “(A) the tax for the taxable year computed without such deduction, minus
      “(B) the decrease in tax under this chapter (or the corresponding provisions of prior revenue laws) for the prior taxable year (or years) which would result solely from the exclusion of such item (or portion thereof) from gross income for such prior taxable year (or years).
      “For purposes of paragraph (5)(B), the corresponding provisions of the Internal Revenue Code of 1939 shall be chapter 1 of such code (other than subchapter E, relating to self-employment income) and subchapter E of chapter 2 of such code.”
      Section 1341 (b) (2) contains an exclusion covering certain eases involving sales of stock in trade or inventory. However, because of special treatment given refunds made by regulated public utilities, both parties agree that § 1341 (b) (2) is inapplicable to this case and that, accordingly, § 1341 (a) applies.

       In the case of an accrual-basis taxpayer, the legislative history makes it clear that the deduction is allowable at the proper time for accrual. H. R. Rep. No. 1337, 83d Cong., 2d Sess., a294 (1954); S. Rep. No. 1622, 83d Cong., 2d Sess., 451-452 (1954).

       The Commissioner has long recognized that a deduction under some section is allowable. G. C. M. 16730, XV-1 Cum. Bull. 179 (1936).

       The analogy would be even more striking if in Arrowsmith the individual taxpayers had not utilized the alternative tax for capital gains, as they were permitted to do by what is now § 1201 of the 1954 Code. Where the 25% alternative tax is not used, individual taxpayers are taxed at ordinary rates on 50% of their capital gains. See § 1202. In such a situation, the rule of the Arrowsmith case prevents taxpayers from deducting 100% of an item refunded when they were taxed on only 50% of it when it was received. Although Arrowsmith prevents this inequitable result by treating the repayment as a capital loss, rather than by disallowing 50% of the deduction, the policy behind the decision is applicable in this case. Here it would be inequitable to allow a 100% deduction when only 72%% was taxed on receipt.

         Compare the analogous approach utilized under the “tax benefit” rule. Alice Phelan Sullivan Corp. v. United States, 180 Ct. Cl. 659, 381 F. 2d 399 (1967); see Internal Revenue Code of 1954 § 111. In keeping with the analogy, the Commissioner has indicated that the Government will only seek to reduce the deduction in the year of repayment to the extent that the depletion allowance attributable to the receipt directly or indirectly reduced taxable income. Proposed Treas. Reg. § 1.613-2 (e)(8), 33 Fed. Reg. 10702-10703 (1968).

       The 10% standard deduction mentioned in Mr. Justice Stewart's dissent, post, at 697, differs in that it allows as a deduction a percentage of adjusted gross income, rather than of gross income. See § 141 ; cf. §§ 170, 213. As a result, repayments may in certain cases cause a decrease in the 10% standard deduction allowable in the year of repayment, assuming that the repayment is of the character to be deducted in calculating adjusted gross income. See § 62.

       Section 1341 reads as follows:
      (a) General rule. If—
      “(1) an item was included in gross income for a prior taxable year (or years) because it appeared that the taxpayer had an unrestricted right to such item;
      “(2) a deduction is allowable for the taxable year because it was established after the close of such prior taxable year (or years) that the taxpayer did not have an unrestricted right to such item or to a portion of such item; and
      “(3) the amount of such deduction exceeds $3,000,
      “then the tax imposed by this chapter for the taxable year shall be the lesser of the following:
      “(4) the tax for the taxable year computed with such deduction; or
      “(5) an amount equal to—
      “(A) the tax for the taxable year computed without such deduction, minus
      “(B) the decrease in tax ... for the prior taxable year . . . which would result solely from the exclusion of such item . . . from gross income for such prior taxable year . . . .”

       Perhaps the most egregious error that we made in my time (one for which I take partial blame), was Helvering v. Hallock, 309 U. S. 106, an opinion for the Court, written by Mr. Justice Frankfurter that overruled Helvering v. St. Louis Trust Co., 296 U. S. 39, and Becker v. St. Louis Trust Co., 296 U. S. 48. This is one classic example of the type of problem which should be left to the Joint Committee.

       For a classic example see R. Paul, Studies in Federal Taxation 449-450 (3d series 1940).

       The validity of Regulations and the effect of re-enactment of a statutory provision on them present distinct questions. Helvering v. Wilshire Oil Co., 308 U. S. 90; Commissioner v. South Texas Co., 333 U. S. 496; Commissioner v. Stidger, 386 U. S. 287.

       Section 1341, of course, is designed precisely to create a situation where “the taxpayer always wins and the Government always loses.” Strict adherence to annual accounting and the claim-of-right doctrine before 1954 sometimes benefited the taxpayer, sometimes the Government. Section 1341 retains those principles where they benefit the taxpayer but allows recomputation of the taxes of a prior year if that method would result in a greater tax saving.

       Judicial assumptions that Congress did not intend liberal benefits for taxpayers are particularly suspect in the area of percentage depletion, perhaps the most generous business deduction in the Code. And Congress had the recipients of percentage depletion specifically in mind when it drafted § 1341. The House bill excluded from the coverage of § 1341 all refunds relating to inventory sales. The Senate Committee promptly removed refunds by regulated utilities from this exclusion with the following remarks:
      “Your committee’s bill provides that the exclusion of refunds pertaining to inventory sales will not exclude from the benefits of this section refunds made by a regulated public utility where the refunds are required to be made by the regulatory body, such as the Federal Power Commission. It is made clear, for example, that refunds of charges for the sale of natural gas under rates approved temporarily would be eligible for the benefits of this section.” S. Rep. No. 1622, 83d Cong., 2d Sess., 118 (1954).

       The House and Senate Reports give no indication that Congress thought the deduction would be other than the amount of the item included in gross income for the prior year. They refer to the amount of the deduction and of the item interchangeably.
      “If the taxpayer included an item in gross income in one taxable year, and in a subsequent taxable year he becomes entitled to a deduction because the item or a portion thereof is no longer subject to his unrestricted use, and the amount of the deduction is in excess of $3,000, the tax for the subsequent year is reduced by either the tax attributable to the deduction or the decrease in the tax for the prior year attributable to the removal of the item, whichever is greater. Under the rule of the Lewis case (340 U. S. 590 (1951)), the taxpayer is entitled to a deduction only in the year of repayment.
      “In the ease of a cash-basis taxpayer, in order to be entitled to a deduction in the later year, the amount must be repaid. However, in the case of an accrual-basis taxpayer, if the item was accrued but never received, the section applies when the deduction accrues in the later year although there is, of course, no amount to be repaid.” S. Rep. No. 1622, supra, n. 2, at 451.
      See also H. R. Rep. No. 1337, 83d Cong., 2d Sess., a294 (1954).

       See G. C. M. 16730, XV-1 Cum. Bull. 179, 181 (1936):
      “In the instant case the taxpayer received the income under a claim of right and without restriction as to its disposition. On authority of the cases cited herein, this office is of the opinion that the profits in question should not be eliminated from the taxpayer’s gross income for the years 1928 and 1929 [the years of inclusion], but that the taxpayer is entitled to a deduction, for the year in which paid, of the amount of the profits paid . . . .” (Emphasis supplied.)
      See also 2 J. Mertens, Law of Federal Income Taxation § 12.106a, p. 431 (P. Zimet & J. Stanley rev. ed. 1967).

        Charles Ilfeld Co. v. Hernandez, 292 U. S. 62, and United States v. Ludey, 274 U. S. 295, both involved situations in which the taxpayer tried to take the same deduction twice. In Ilfeld the taxpayer had taken deductions, through consolidated returns, for the annual losses of its subsidiaries; when the subsidiaries’ assets were sold and the companies dissolved, the parent taxpayer sought to take deductions for losses of its investment in the subsidiaries. As the Court held, “[t]he allowance claimed would permit [the parent] twice to use the subsidiaries’ losses for the reduction of its taxable income,” a double deduction that “nothing in the Act . . . purports to authorize .. . .” 292 U. S., at 68. In Ludey the taxpayer had taken deductions for depletion of his mining properties; but when the properties were sold in the taxable year in question, the taxpayer did not, in computing the gain from the sale, adjust the basis of the property to reflect the depletion deductions. The Court held that depletion allowances, like those for depreciation, are granted in recognition of the fact that the asset is disappearing year by year. When it is disposed of, therefore, “the thing then sold is not the whole thing originally acquired. The amount of the depreciation must be deducted from the original cost of the whole in order to determine the cost of that disposed of in the final sale of properties. Any other construction would permit a double deduction for the loss of the same capital assets.” 274 U. S., at 301.

       As the Court recognizes, ante, at 685, n. 4, the Court in Arrow-smith did not hold that the amount of the deduction in the year of repayment would be reduced because in the year of inclusion the money had been taxed at a lower rate or had been offset by deductions. It held merely that the losses fell within the definition of “capital losses” contained in the sections authorizing deductions for the repayment. The Court does not in this case point to any comparable statutory provision affecting the nature or amount of the deduction for the refund.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    NORFOLK MONUMENT CO., INC. v. WOODLAWN MEMORIAL GARDENS, INC., et al.
    No. 1040.
    Decided April 21, 1969.

      Howard I. Legum and Louis B. Fine for petitioner.

      Frederick S. Albrink for Woodlawn Memorial Gardens, Inc., William C. Worthington for Rosewood Memorial Park, Inc., et al., Jefferson B. Brown for Greenlawn Cemetery Park Corp., Bernard Glosser and Stuart D. Glosser for Roosevelt Memorial Park & Cemetery Corp., and William H. King for Jas. H. Matthews & Co. of Virginia et al., respondents.
   Per Curiam.

The petitioner, a retailer of burial monuments and bronze grave markers, brought this action for damages and injunctive relief under §§ 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U. S. C. §§ 15, 26, alleging that the respondents had violated §§ 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §§ 1, 2, by conspiring to monopolize and monopolizing the manufacture and sale of bronze grave markers. The respondents — Matthews, a manufacturer of such markers, and five operators of cemeteries (called “memorial parks”) that sell the markers — were charged with having jointly adopted various restrictive devices to prevent, restrict, and discourage sales of markers by the petitioner for installation in the cemeteries. After extensive pretrial discovery, the District Court granted the respondents’ motion for summary judgment, concluding that there was no material issue of fact and no evidence of conspiracy. 290 F. Supp. 1. The Court of Appeals affirmed. 404 F. 2d 1008.

We cannot agree that on the record before the District Court a jury could not have found that the respondents had conspired to exclude the petitioner from and monopolize the market for bronze grave markers. As Circuit Judge Craven pointed out in his dissenting opinion, the record disclosed the following conduct on the part of the respondents:

“(1) Despite the unskilled nature of the work, all of the memorial parks refuse to permit the plaintiff to install markers sold by it; all of them insist that the work be done by the cemeteries themselves.
“(2) None of the memorial parks charges lot owners a separate installation fee in the case of markers purchased from the cemeteries.
“(3) All of the memorial parks require the payment of an installation fee by the plaintiff for installing markers purchased from the plaintiff. The plaintiff plausibly maintains that the actual cost of installation comes to about $3. Yet, enormous installation fees are charged plaintiff ....
“(4) All of the memorial parks require a specific alloy content in the bronze markers installed, and reserve the right to reject non-conforming markers. The alloy content requirement happens to be the same as manufacturer Matthews’ markers and the same as is implicitly suggested in a pamphlet (‘Modern Cemeteries’) distributed by Matthews to its customers. All of the memorial parks except Roosevelt are customers of Matthews.
“(5) There is evidence that Greenlawn, Wood-lawn and Princess Anne have attempted to dissuade lot owners from purchasing markers from the plaintiff. The affidavit of plaintiff’s president states that numerous other incidents of this nature have occurred.
“(6) Defendant Matthews, in its pamphlet ‘Modern Cemeteries,’ suggests a number of practices which in effect erect competitive barriers to retailers other than the cemeteries themselves.
“(7) Many of these practices have been adopted by the memorial park defendants, as evidenced by affidavits in the record, and by the ‘rule books’ of Rosewood, Princess Anne and Greenlawn.
“(8) There is evidence of numerous visits to and conferences with the memorial parks by sales representatives of Matthews.” 404 F. 2d, at 1012-1014.

The District Court found that the rules relating to the alloy content and installation of the markers were reasonable “[i]n view of the continuing obligation of perpetual care imposed upon the cemeteries, in [their] contracts with lot owners . . . .” 290 F. Supp., at 3. But the business justification for these restrictive rules was disputed by the petitioner, which proffered evidence that the markers required very little permanent care and that, in any event, the funds for that purpose were already provided from another source. The reasonableness of the rules was a material question of fact whose resolution was the function of the jury and not of the court on a motion for summary judgment. The same is true of the inferences to be drawn from respondent Matthews’ pamphlet. The District Court dismissed it as without any possible significance because it was a mere “form book/’ which “specifically points out . . . that it contains suggested standards of fair and reasonable regulations which the cemetery would be advised to adopt but says that ‘. . . Jas. H. Matthews & Co. is not permitted to make recommendations and suggests that the reader consult his own attorney.’ ” 290 F. Supp., at 3. Again this self-serving disclaimer raised a question for the jury, and it surely did not alone conclusively rebut the petitioner’s contention that the pamphlet evidenced an agreement among the respondents to participate in the alleged restrictive practices.

Nor do the other findings of the District Court necessarily dispel the inferences which the jury would be asked by the petitioner to draw. The District Court found, for example, that there was “a wide divergence of prices” charged for installation “which would completely negative any systematic scheming or conscious parallelism.” 290 F. Supp., at 3. The petitioner’s complaint, however, was not that the respondent cemeteries were charging uniform fees but that they were charging deliberately “excessive and unreasonable” fees for the purpose of injuring the petitioner. The fact that the District Court appeared to consider dispositive of the conspiracy allegations was that the petitioner’s principal officer “admitted that he has no letters, agreements, correspondence, or any other testimonials to a conspiracy among the several defendants . . . .” 290 F. Supp., at 3. But it is settled that “[n]o formal agreement is necessary to constitute an unlawful conspiracy,” American Tobacco Co. v. United States, 328 U. S. 781, 809, and that “business behavior is admissible circumstantial evidence from which the fact finder may infer agreement.” Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U. S. 537, 540.

We express no opinion, of course, on the strength or weakness of the petitioner’s case, but hold only that the alleged conspiracy had not been conclusively disproved by pretrial discovery and that there remained material issues of fact which could only be resolved by the jury after a plenary trial. As we have cautioned before, “summary procedures should be used sparingly in complex antitrust litigation where motive and intent play leading roles, the proof is largely in the hands of the alleged conspirators, and hostile witnesses thicken the plot.” Poller v. Columbia Broadcasting System, 368 U. S. 464, 473.

The writ of certiorari is granted. The judgment is reversed, and the case is remanded for further proceedings in the District Court consistent with this opinion.

It is so ordered.

Mr. Justice Harlan, Mr. Justice Fortas, and Mr. Justice Marshall are of the opinion that certiorari should be denied.

      Judge Craven noted that the reason for the disclaimer is that “Matthews is under an injunction prohibiting it from making any suggestions to memorial parks as to the quality of markers installed in the parks.” 404 F. 2d, at 1013, n. 6. The injunction was entered in one of the three consent decrees which have settled prior antitrust actions against Matthews. See 404 F. 2d, at 1014.


author:
Per Curiam.
      Mr. Justice Douglas, Mr. Justice Fortas,

text:
    WATTS v. UNITED STATES.
    No. 1107,
    Misc.
    Decided April 21, 1969.

      Joseph Forer for petitioner.

      Solicitor General Griswold for the United States.

      Ralph J. Temple, Melvin L. Wulf, and Lawrence Speiser for the American Civil Liberties Union et al. as amici curiae.

   Per Curiam.

After a jury trial in the United States District Court for the District of Columbia, petitioner was convicted of violating a 1917 statute which prohibits any person from “knowingly and willfully . . . [making] any threat to take the life of or to inflict bodily harm upon the President of the United States ....” The incident which led to petitioner’s arrest occurred on August 27, 1966, during a public rally on the Washington Monument grounds. The crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views. According to an investigator for the Army Counter Intelligence Corps who was present, petitioner responded: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” “They are not going to make me kill my black brothers.” On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President. The United States Court of Appeals for the District of Columbia Circuit affirmed by a two-to-one vote. 131 U. S. App. D. C. 125, 402 F. 2d 676 (1968). We reverse.

At the close of the Government’s case, petitioner’s trial counsel moved for a judgment of acquittal. He contended that there was “absolutely no evidence on the basis of which the jury would be entitled to find that [petitioner] made a threat against the life of the President.” He stressed the fact that petitioner’s statement was made during a political debate, that it was expressly made conditional upon an event — induction into the Armed Forces — which petitioner, vowed would never occur, and that both petitioner and the crowd laughed after the statement was made. He concluded, “Now actually what happened here in all this was a kind of very crude offensive method of stating a political opposition to the President. What he was saying, he says, I don’t want to shoot black people because I don’t consider them my enemy, and if they put a rifle in my hand it is the people that put the rifle in my hand, as symbolized by the President, who are my real enemy.” We hold that the trial judge erred in denying this motion.

Certainly the statute under which petitioner was convicted is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H. R. Rep. No. 652, 64th Cong., 1st Sess. (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.

The judges in the Court of Appeals differed over whether or not the “willfullness” requirement of the statute implied that a defendant must have intended to carry out his “threat.” Some early cases found the will-fullness requirement met if the speaker voluntarily uttered the charged words with “an apparent determination to carry them into execution.” Ragansky v. United States, 253 F. 643, 645 (C. A. 7th Cir. 1918) (emphasis supplied); cf. Pierce v. United States, 365 F. 2d 292 (C. A. 10th Cir. 1966). The majority below seemed to agree. Perhaps this interpretation is correct, although we have grave doubts about it. See the dissenting opinion below, 131 U. S. App. D. C., at 135-142, 402 F. 2d, at 686-693 (Wright, J.). But whatever the “willfullness” requirement implies, the statute initially requires the Government to prove a true “threat.” We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U. S. 254, 270 (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U. S. 53, 58 (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment of the Court of Appeals is reversed. The case is remanded with instructions that it be returned to the District Court for entry of a judgment of acquittal.

It is so ordered.

Mr. Justice Stewart would deny the petition for certiorari.

Mr. Justice White dissents.

Mr. Justice Douglas,

concurring.

The charge in this case is of an ancient vintage.

The federal statute under which petitioner was convicted traces its ancestry to the Statute of Treasons (25 Edw. 3) which made it a crime to “compass or imagine the Death of . . . the King.” Note, Threats to Take the Life of the President, 32 Harv. L. Rev. 724, 725 (1919). It is said that one Walter Walker, a 15th century keeper of an inn known as the “Crown,” was convicted under the Statute of Treasons for telling his son: “Tom, if thou behavest thyself well, I will make thee heir to the Crown.” He was found guilty of compassing and imagining the death of the King, hanged, drawn, and quartered. 1 J. Campbell, Lives of the Chief Justices of England 151 (1873).

In the time of Edward IV, one Thomas Burdet who predicted that the king would “soon die, with a view to alienate the affections” of the people was indicted for “compassing and imagining of the death of the King,” 79 Eng. Rep. 706 (1477) — the crime of constructive treason with which the old reports are filled.

In the time of Charles II, one Edward Brownlow was indicted “for speaking these words, that he wished all the gentry in the land would kill one another, so that the comminalty might live the better.” 3 Middlesex County Rec. 326 (1888). In the same year (1662) one Robert Thornell was indicted for saying “that if the Kinge did side with the Bishops, the divell take Kinge and the Bishops too.” Id., at 327.

While our Alien and Sedition Laws were in force, John Adams, President of the United States, en route from Philadelphia, Pennsylvania, to Quincy, Massachusetts, stopped in Newark, New Jersey, where he was greeted by a crowd and by a committee that saluted him by firing a cannon.

A bystander said, “There goes the President and they are firing at his ass.” Luther Baldwin was indicted for replying that he did not care “if they fired through his ass.” He was convicted in the federal court for speaking “sedicious words tending to defame the President and Government of the United States” and fined, assessed court costs and expenses, and committed to jail until the fine and fees were paid. See J. Smith, Freedom’s Fetters 270-274 (1956).

The Alien and Sedition Laws constituted one of our sorriest chapters; and I had thought we had done with them forever.

Yet the present statute has hardly fared better. “Like the Statute of Treasons, section 871 was passed in a 'relatively calm peacetime spring/ but has been construed under circumstances when intolerance for free speech was much greater than it normally might be.” Note, Threatening the President: Protected Dissenter or Political Assassin, 57 Geo. L. J. 553, 570 (1969). Convictions under 18 U. S. C. § 871 have been sustained for displaying posters urging passersby to “hang [President] Roosevelt.” United States v. Apel, 44 F. Supp. 592, 593 (D. C. N. D. Ill. 1942); for declaring that “President Wilson ought to be killed. It is a wonder some one has not done it already. If I had an opportunity, I would do it myself.” United States v. Stickrath, 242 F. 151, 152 (D. C. S. D. Ohio 1917); for declaring that “Wilson is a wooden-headed son of a bitch. I wish Wilson was in hell, and if I had the power I would put him there,” Clark v. United States, 250 F. 449 (C. A. 5th Cir. 1918). In sustaining an indictment under the statute against a man who indicated that he would enjoy shooting President Wilson if he had the chance, the trial court explained the thrust of § 871:

“The purpose of the statute was undoubtedly, not only the protection of the President, but also the prohibition of just such statements as those alleged in this indictment. The expression of such direful intentions and desires, not only indicates a spirit of disloyalty to the nation bordering upon treason, but is, in a very real sense, a menace to the peace and safety of the country. ... It arouses resentment and concern on the part of patriotic citizens.” United States v. Jasick, 252 F. 931, 933 (D. C. E. D. Mich. 1918).

Suppression of speech as an effective police measure is an old, old device, outlawed by our Constitution.

Mr. Justice Fortas,

with whom Mr. Justice Harlan joins,

dissenting.

The Court holds, without hearing, that this statute is constitutional and that it is here wrongly applied. Neither of these rulings should be made without hearing, even if we assume that they are correct.

Perhaps this is a trivial case because of its peculiar facts and because the petitioner was merely given a suspended sentence. That does not justify the Court’s action. It should induce us to deny certiorari, not to decide the case on its merits and to adjudicate the difficult questions that it presents.

      18 U. S. C. §871 (a) provides:
      “Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

       The prosecution in those cases laid bare to the juries that the treasonous thoughts were the heart of the matter; “the original of his Treasons proceeded from the imagination of his heart; which imagination was in itself High-Treason, albeit the same proceeded not to any overt fact: and the heart being possessed with the abundance of his traitorous imagination, and not being able so to contain itself, burst forth in vile and traitorous Speeches, and from thence to horrible and heinous actions.” Trial of Sir John Perrot, 1 How. St. Tr. 1315, 1318 (1592). “[T]he high treason charged, is the compassing or imagining (in other words, the intending or designing) the death of the king; I mean his NATURAL DEATH; which being a hidden operation of the mind, an overt act is any thing which legally proves the existence of such traitorous design and intention — I say that the design against the king’s natural life, is the high treason under the first branch of the statute; and whatever is evidence, which may be legally laid before a jury to judge of the traitorous intention, is a legal overt act; because an overt act is nothing but legal evidence embodied upon the record.” Trial of Thomas Hardy, 24 How. St. Tr. 199, 894 (1794). And see 84 Eng. Rep. 1057 (1708).
      For a discussion of the adequacy of mere words as overt acts see 3 W. Holdsworth, History of English Law 293 (1927).

       “In the Sedition Act cases, the tendency of words to produce acts against the peace and security of the community was stretched to its utmost latitude. Likewise, judges and juries, in their willingness to presume evil intent on the part of Republican writers, largely nullified the safeguards erected by the Sedition Act itself. Criticism of the President and Congress — in which every American indulges as his birthright — was severely punished; yet this practice manifestly has only a remote tendency to injure and bring into contempt the government of the United States. In short, much that has become commonplace in American political life was put under the ban by the Federalist lawmakers and judges of 1798.” J. Miller, Crisis in Freedom 233 (1951).


text:
    EMANUEL, EXECUTOR, et al. v. CHAPPLE, EXECUTOR.
    No. 1092.
    Decided April 21, 1969.

      James Sharp, Jr., for appellants.

      Howell H. Heard for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    EMANUEL, EXECUTOR, et al. v. CHAPPLE, EXECUTOR.
    No. 1125.
    Decided April 21, 1969.

      James Sharp, Jr., for appellants.

      Howell H. Heard for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    CONTINENTAL CASUALTY CO. et al. v. ROBERTSON LUMBER CO.
    No. 582.
    Decided April 21, 1969.

      Kahl K. Spriggs and James L. Lamb for appellants.

      Harold D. Shaft for appellee.

      Solicitor General Griswold, at the invitation of the Court, filed a memorandum for the United States.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.


text:
    PENDERGRAFT v. MISSISSIPPI.
    No. 834.
    Decided April 21, 1969.

      W. S. Moore for appellant.

      Joe T. Patterson, Attorney General of Mississippi, and G. Garland Lyell, Jr., Assistant Attorney General, for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of jurisdiction. Treating the papers whereon the appeal was taken as a petition for a writ of certiorari, certiorari is denied.

Mr. Justice Douglas is of the opinion that probable jurisdiction should be noted.


text:
    OTTLEY et al. v. LONG ISLAND COLLEGE HOSPITAL.
    No. 1045.
    Decided April 21, 1969.

      Stephen C. Vladeck and Judith P. Vladeck for appellants.

      Theodore R. Iserman and Frederick T. Shea for appellee.

      Louis J. Lefkowits, Attorney General of New York, pro se, Samuel A. Hirshowitz, First Assistant Attorney General, and Maria L. Marcus and Amy Juviler, Assistant Attorneys General, for the Attorney General of New York as amicus curiae in support of appellants.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a properly presented federal question.


text:
    CITY OF CHICAGO et al. v. UNITED STATES et al.
    No. 1047.
    Decided April 21, 1969

      Raymond F. Simon, Nuél D. Belnap, and Harold E. Spencer for appellants in No. 1047. John W. Adams, William J. O’Brien, Jr., James H. Durkin, Bryce L. Hamilton, and Louis A. Schwartz for appellants in No. 1048.

      Solicitor General Griswold, Assistant Attorney General McLaren, Robert W. Ginnane, Leonard S. Goodman, and Raymond M. Zimmet for the United States et al. in both cases.
    Briefs of amici curiae were filed in No. 1047 by William J. Scott, Attorney General, and Robert F. Scott, Assistant Attorney General, for the State of Illinois; by Frank J. Kelley, Attorney General, Robert A. Derew-goski, Solicitor General, and Nicholas V. Olds, Jerome Maslowski, and Curtis G. Beck, Assistant Attorneys General, for the State of Michigan; by Paul W. Brown, Attorney General, and Shelby V. Hutchins and /. Philip Redick, Assistant Attorneys General, for the State of Ohio; and by Joseph H. Nathanson for the Toledo-Lucas County Port Authority.

      Together with No. 1048, Illinois Central Railroad Co. et al. v. City of Chicago et al., also on appeal from the same court.

   Per Curiam.

The motion to affirm is granted and the judgment is affirmed.


text:
    ESTES EXPRESS LINES et al. v. UNITED STATES et al.
    No. 1121.
    Decided April 21, 1969.

      Harry J. Jordan for appellants.

      Solicitor General Griswold, Assistant Attorney General McLaren, Robert W. Ginnane, and Raymond M. Zimmet for the United States et al., and William H. Marx and H. Merrill Pasco for Railway Express Agency, Inc., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    CONSOLIDATED COPPERSTATE LINES v. UNITED STATES et al.
    No. 1128.
    Decided April 21, 1969

      David Axelrod for appellant in No. 1128. Dennis G. Lyons and Joe A. Keith for appellant in No. 1141.

      Solicitor General Griswold, Assistant Attorney General McLaren, Robert W. Ginnane, Nahum Litt, and Jerome Nelson for the United States et al., T. S. Christopher for appellee Braswell Motor Freight Lines, Inc., and Carl L. Phinney for appellee Herrin Transportation Co. in both cases. Phillip Robinson for appellees Central Freight Lines, Inc., et al., and Reagan Sayers for appellee Ryder Truck Lines, Inc., in No. 1128. Robert E. Joyner, Phineas Stevens, and Charles D. Mathews for appellees Arkansas-Best Freight System, Inc., et al. in No. 1141.

      Together with No. 1141, Strickland Transportation Co., Inc. v. United States et al., also on appeal from the same court.

   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.

Mr. Justice Fortas took no part in the consideration or decision of these cases.


text:
    JONES v. FLORIDA.
    No. 807,
    Misc.
    Decided April 21, 1969.

      Phillip A. Hubbart for petitioner.

      Earl Faircloth, Attorney General of Florida, and Harold Mendelow, Assistant Attorney General, for respondent.
   Per Curiam.

The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated and the case is remanded to the District Court of Appeal of Florida, Third District, for further consideration in light of Bruton v. United States, 391 U. S. 123, and Roberts v. Russell, 392 U. S. 293.


author: Mr. Justice Brennan Mr. Justice Harlan, Mr. Justice Black, Mr. Justice Stewart,

text:
    DAVIS v. MISSISSIPPI.
    No. 645.
    Argued February 26-27, 1969.
    Decided April 22, 1969.

      Melvyn Zarr argued the cause for petitioner. With him on the brief were Jack Greenberg, Michael Meltsner, Anthony G. Amsterdam, and Jack Young.

      G. Garland Lyell, Jr., Assistant Attorney General of Mississippi, argued the cause for respondent. With him on the brief was Joe T. Patterson, Attorney General.
   Mr. Justice Brennan

delivered the opinion of the Court.

Petitioner was convicted of rape and sentenced to life imprisonment by a jury in the Circuit Court of Lauder-dale County, Mississippi. The only issue before us is whether fingerprints obtained from petitioner should have been excluded from evidence as the product of a detention which was illegal under the Fourth and Fourteenth Amendments.

The rape occurred on the evening of December 2, 1965, at the victim’s home in Meridian, Mississippi. The victim could give no better description of her assailant than that he was a Negro youth. Finger and palm prints found on the sill and borders of the window through which the assailant apparently entered the victim’s home constituted the only other lead available at the outset of the police investigation. Beginning on December 3, and for a period of about 10 days, the Meridian police, without warrants, took at least 24 Negro youths to police headquarters where they were questioned briefly, fingerprinted, and then released without charge. The police also interrogated 40 or 50 other Negro youths either at police headquarters, at school, or on the street. Petitioner, a 14-year-old youth who had occasionally worked for the victim as a yardboy, was brought in on December 3 and released after being fingerprinted and routinely questioned. Between December 3 and December 7, he was interrogated by the police on several occasions— sometimes in his home or in a car, other times at police headquarters. This questioning apparently related primarily to investigation of other potential suspects. Several times during this same period petitioner was exhibited to the victim in her hospital room. A police officer testified that these confrontations were for the purpose of sharpening the victim’s description of her assailant by providing “a gauge to go by on size and color.” The victim did not identify petitioner as her assailant at any of these confrontations.

On December 12, the police drove petitioner 90 miles to the city of Jackson and confined him overnight in the Jackson jail. The State conceded on oral argument in this Court that there was neither a warrant nor probable cause for this arrest. The next day, petitioner, who had not yet been afforded counsel, took a lie detector test and signed a statement. He was then returned to and confined in the Meridian jail. On December 14, while so confined, petitioner was fingerprinted a second time. That same day, these December 14 prints, together with the fingerprints of 23 other Negro youths apparently still under suspicion, were sent to the Federal Bureau of Investigation in Washington, D. C., for comparison with the latent prints taken from the window of the victim’s house. The FBI reported that petitioner’s prints matched those taken from the window. Petitioner was subsequently indicted and tried for the rape, and the fingerprint evidence was admitted in evidence at trial over petitioner’s timely objections that the fingerprints should be excluded as the product of an unlawful detention. The Mississippi Supreme Court sustained the admission of the fingerprint evidence and affirmed the conviction. 204 So. 2d 270 (1967). We granted certiorari. 393 U. S. 821 (1968). We reverse.

At the outset, we find no merit in the suggestion in the Mississippi Supreme Court’s opinion that fingerprint evidence, because of its trustworthiness, is not subject to the proscriptions of the Fourth and Fourteenth Amendments. Our decisions recognize no exception to the rule that illegally seized evidence is inadmissible at trial, however relevant and trustworthy the seized evidence may be as an item of proof. The exclusionary rule was fashioned as a sanction to redress and deter overreaching governmental conduct prohibited by the Fourth Amendment. To make an exception for illegally seized evidence which is trustworthy would fatally undermine these purposes. Thus, in Mapp v. Ohio, 367 U. S. 643, 655 (1961), we held that “all evidence obtained by searches and seizures in violation of the Constitution is, by that same authority, inadmissible in a state court.” (Italics supplied.) Fingerprint evidence is no exception to this comprehensive rule. We agree with and adopt the conclusion of the Court of Appeals for the District of Columbia Circuit in Bynum v. United States, 104 U. S. App. D. C. 368, 370, 262 F. 2d 465, 467 (1958):

“True, fingerprints can be distinguished from statements given during detention. They can also be distinguished from articles taken from a prisoner’s possession. Both similarities and differences of each type of evidence to and from the others are apparent. But all three have the decisive common characteristic of being something of evidentiary value which the public authorities have caused an arrested person to yield to them during illegal detention. If one such product of illegal detention is proscribed, by the same token all should be proscribed.”

We turn then to the question whether the detention of petitioner during which the fingerprints used at trial were taken constituted an unreasonable seizure of his person in violation of the Fourth Amendment. The opinion of the Mississippi Supreme Court proceeded on the mistaken premise that petitioner’s prints introduced at trial were taken during his brief detention on December 3. In fact, as both parties before us agree, the fingerprint evidence used at trial was obtained on December 14, while petitioner was still in detention following his December 12 arrest. The legality of his arrest was not determined by the Mississippi Supreme Court. However, on oral argument here, the State conceded that the arrest on December 12 and the ensuing detention through December 14 were based on neither a warrant nor probable cause and were therefore constitutionally invalid. The State argues, nevertheless, that this invalidity should not prevent us from affirming petitioner’s conviction. The December 3 prints were validly obtained, it is argued, and “it should make no difference in the practical or legal sense which [fingerprint] card was sent to the F. B. I. for comparison.” It may be that it does make a difference in light of the objectives of the exclusionary rule, see Bynum v. United States, supra, at 371-372, 262 F. 2d, at 468-469, but we need not decide the question since we have concluded that the prints of December 3 were not validly obtained.

The State makes no claim that petitioner voluntarily accompanied the police officers to headquarters on December 3 and willingly submitted to fingerprinting. The State's brief also candidly admits that “[a] 11 that the Meridian Police could possibly have known about petitioner at the time . . . would not amount to probable cause for his arrest . ...” The State argues, however, that the December 3 detention was of a type which does not require probable cause. Two rationales for this position are suggested. First, it is argued that the detention occurred during the investigatory rather than accusatory stage and thus was not a seizure requiring probable cause. The second and related argument is that, at the least, detention for the sole purpose of obtaining fingerprints does not require probable cause.

It is true that at the time of the December 3 detention the police had no intention of charging petitioner with the crime and were far from making him the primary focus of their investigation. But to argue that the Fourth Amendment does not apply to the investigatory stage is fundamentally to misconceive the purposes of the Fourth Amendment. Investigatory seizures would subject unlimited numbers of innocent persons to the harassment and ignominy incident to involuntary detention. Nothing is more clear than that the Fourth Amendment was meant to prevent wholesale intrusions upon the personal security of our citizenry, whether these intrusions be termed "arrests” or “investigatory detentions.” We made this explicit only last Term in Terry v. Ohio, 392 U. S. 1, 19 (1968), when we rejected “the notions that the Fourth Amendment does not come into play at all as a limitation upon police conduct if the officers stop short of something called a ‘technical arrest' or a ‘full-blown search.’ ”

Detentions for the sole purpose of obtaining fingerprints are no less subject to the constraints of the Fourth Amendment. It is arguable, however, that, because of the unique nature of the fingerprinting process, such detentions might, under narrowly defined circumstances, be found to comply with the Fourth Amendment even though there is no probable cause in the traditional sense. See Camara v. Municipal Court, 387 U. S. 523 (1967). Detention for fingerprinting may constitute a much less serious intrusion upon personal security than other types of police searches and detentions. Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person’s prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the “third degree.” Finally, because there is no danger of destruction of fingerprints, the limited detention need not come unexpectedly or at an inconvenient time. For this same reason, the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.

We have no occasion in this case, however, to determine whether the requirements of the Fourth Amendment could be met by narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause to arrest. For it is clear that no attempt was made here to employ procedures which might comply with the requirements of the Fourth Amendment: the detention at police headquarters of petitioner and the other young Negroes was not authorized by a judicial officer; petitioner was unnecessarily required to undergo two fingerprinting sessions; and petitioner was not merely fingerprinted during the December 3 detention but also subjected to interrogation. The judgment of the Mississippi Supreme Court is therefore

Reversed.

Mr. Justice Fortas took no part in the consideration or decision of this case.

Mr. Justice Harlan,

concurring.

I join the opinion of the Court, with one reservation. The Court states in dictum that, because fingerprinting may be scheduled for a time convenient to the citizen, “the general requirement that the authorization of a judicial officer be obtained in advance of detention would seem not to admit of any exception in the fingerprinting context.” Ante, this page. I cannot concur in so sweeping a proposition. There may be circumstances, falling short of the “dragnet” procedures employed in this case, where compelled submission to fingerprinting would not amount to a violation of the Fourth Amendment even in the absence of a warrant, and I would leave that question open.

Mr. Justice Black,

dissenting.

The petitioner here was convicted of a brutal rape of a woman, committed in her own home. Fingerprints of the petitioner, left on the window sill of her home, were the clinching evidence bringing about petitioner’s conviction. The Court, by once more expanding the reach of the judicially declared exclusionary rule, ostensibly resting on the Fourth Amendment, holds the fingerprint evidence constitutionally inadmissible and thereby reverses petitioner’s conviction. The rape occurred on December 2, 1965, and, as was their duty, the police authorities began to make a searching investigation the morning of December 3. The raped woman was originally able to describe the rapist only as a young Negro male. With this evidence the police proceeded to interrogate a number of young Negroes on the streets, at their homes, or at the police station, and then permitted them to go on their way. The petitioner was among those so interrogated on December 3, at which time his fingerprints were made. The fingerprints were again taken on December 14. The record does not show that petitioner or any other young man who was questioned and fingerprinted ever made the slightest objection. Apparently all of them cooperated with the police in efforts to find out who had committed the rape. This case is but one more in an ever-expanding list of cases in which this Court has been so widely blowing up the Fourth Amendment’s scope that its original authors would be hard put to recognize their creation. For this most unnecessary expansion of the Amendment, the Court is compelled to put its chief reliance on a Court of Appeals decision, Bynum v. United States, 104 U. S. App. D. C. 368, 262 F. 2d 465. I think it is high time this Court, in the interest of the administration of criminal justice, made a new appraisal of the language and history of the Fourth Amendment and cut it down to its intended size. Such a judicial action would, I believe, make our cities a safer place for men, women, and children to live.

I dissent from this reversal.

Mr. Justice Stewart,

dissenting.

I do not disagree with the Court’s conclusion that the petitioner was arrested and detained without probable cause. But it does not follow that his fingerprints were inadmissible at the trial.

Fingerprints are not “evidence” in the conventional sense that weapons or stolen goods might be. Like the color of a man’s eyes, his height, or his very physiognomy, the tips of his fingers are an inherent and unchanging characteristic of the man. And physical impressions of his fingertips can be exactly and endlessly reproduced.

We do not deal here with a confession wrongfully obtained or with property wrongfully seized — so tainted as to be forever inadmissible as evidence against a defendant. We deal, instead, with “evidence” that can be identically reproduced and lawfully used at any subsequent trial.

I cannot believe that the doctrine of Mapp v. Ohio, 367 U. S. 643, requires so useless a gesture as the reversal of this conviction.

       The statement was not introduced at the trial.

       Fingerprint evidence would seem no more “trustworthy” than other types of evidence — such as guns, narcotics, gambling equipment — which are routinely excluded if illegally obtained.

       Brief for Respondent 8.

       The Government argued in Bynum that the controversy over the introduction in evidence of a particular set of fingerprints was “much ado over very little,” because another set properly taken was available and might have been used. The Court of Appeals rejected this argument: “It bears repeating that the matter of primary judicial concern in all cases of this type is the imposition of effective sanctions implementing the Fourth Amendment guarantee against illegal arrest and detention. Neither the fact that the evidence obtained through such detention is itself trustworthy or the fact that equivalent evidence can conveniently be obtained in a wholly proper way militates against this overriding consideration. It is entirely irrelevant that it may be relatively easy for the government to prove guilt without using the product of illegal detention. The important thing is that those administering the criminal law understand that they must do it that way.” 104 U. S. App. D. C., at 371-372, 262 F. 2d, at 468-469. On Bynum’s retrial another set of fingerprints in no way connected with his unlawful arrest was used, and he was again convicted. The Court of Appeals affirmed this conviction. 107 U. S. App. D. C. 109, 274 F. 2d 767 (1960).

       Brief for Respondent 3.

       The State relies on various statements in our cases which approve general questioning of citizens in the course of investigating a crime. See Miranda v. Arizona, 384 U. S. 436, 477-478 (1966); Culombe v. Connecticut, 367 U. S. 568, 635 (concurring opinion) (1961). But these statements merely reiterated the settled principle that while the police have the right to request citizens to answer voluntarily questions concerning unsolved crimes they have no right to compel them to answer.

      See, e. g., Bumper v. North Carolina, 391 U. S. 543 — another rape ease; Spinelli v. United States, 393 U. S. 410; Aguilar v. Texas, 378 U. S. 108; Recznik v. City of Lorain, 393 U. S. 166; and Griswold v. Connecticut, 381 U. S. 479.

      At the original trial the victim of the rape, under oath, positively identified the petitioner as her assailant. There now exists, therefore, ample probable cause to detain him and take his fingerprints.


author: Mr. Justice Marshall

text:
    FRAZIER v. CUPP, WARDEN.
    No. 643.
    Argued February 26, 1969.
    Decided April 22, 1969.

      Howard M. Feuerstein argued the cause for petitioner. With him on the brief was R. A. Nahstoll.

      Arlen Specter argued the cause for respondent. On the brief were Robert Y. Thornton, Attorney General of Oregon, and David H. Blunt, Assistant Attorney General.
   Mr. Justice Marshall

delivered the opinion of the Court.

Petitioner was convicted in an Oregon state court of second-degree murder in connection with the September 22, 1964, slaying of one Russell Anton Marleau. After the Supreme Court of Oregon had affirmed his conviction, 245 Ore. 4, 418 P. 2d 841 (1966), petitioner filed a petition for a writ of habeas corpus in the United States District Court for the District of Oregon. The District Court granted the writ, but the Court of Appeals for the Ninth Circuit reversed, 388 F. 2d 777 (1968). We granted certiorari to consider three contentions of error raised by petitioner. 393 U. S. 821 (1968). Although petitioner’s case has been ably briefed and argued by appointed counsel, we find none of these allegations sufficient to warrant reversal.

I.

Petitioner’s first argument centers on certain allegedly prejudicial remarks made during the prosecutor’s opening statement. Petitioner had been indicted jointly with his cousin, Jerry Lee Rawls, who pleaded guilty to the same offense. Prior to petitioner’s trial, petitioner’s defense counsel told the prosecutor that Rawls would invoke his privilege against self-incrimination if he were called to the stand; defense counsel warned the prosecutor not to rely in his opening statement upon Rawls’ expected testimony. The prosecutor replied that he would act on the basis of “all of the information I have concerning [Rawls’] testimony.” Before trial, he consulted with a police officer who had spoken to Rawls and with Rawls’ probation officer; each indicated his belief that Rawls would testify. Similar information came, through a sheriff’s report, from some of Rawls’ close relatives. Because of these reports, the prosecutor concluded that Rawls would testify if asked to do so. The court below felt that the prosecutor also relied on the fact that Rawls had pleaded guilty and was awaiting sentence. This would give him reason, the court felt, to cooperate with the prosecutor.

In any case, after the trial began the prosecutor included in his opening statement a summary of the testimony he expected to receive from Rawls. The summary was not emphasized in any particular way; it took only a few minutes to recite and was sandwiched between a summary of petitioner’s own confession and a description of the circumstantial evidence the State would introduce.

At one point the prosecutor referred to a paper he was holding in his hands to refresh his memory about something Rawls had said. Although the State admitted in argument here that the jury might fairly have believed that the prosecutor was referring to Rawls’ statement, he did not explicitly tell the jury that this paper was Rawls’ confession, nor did he purport to read directly from it. A motion for a mistrial was made at the close of the opening statement, but it was denied. Later, the prosecutor called Rawls to the stand. Rawls informed the court that he intended to assert his privilege against self-incrimination in regard to every question concerning his activities on the morning of September 22,1964. The matter was not further pursued, and Rawls was dismissed from the stand. His appearance could not have lasted more than two or three minutes. The motion for mistrial was renewed and once again denied.

Petitioner argues that this series of events placed the substance of Rawls’ statement before the jury in a way that “may well have been the equivalent in the jury’s mind of testimony,” Douglas v. Alabama, 380 U. S. 415, 419 (1965), and that, as in Bruton v. United States, 391 U. S. 123, 128 (1968), the statement “added substantial, perhaps even critical, weight to the Government’s case in a form not subject to cross-examination . . . .” In this way, petitioner claims he was denied his constitutional right of confrontation, guaranteed by the Sixth and Fourteenth Amendments to the Constitution. See Pointer v. Texas, 380 U. S. 400 (1965). Although the judge did caution the jurors that they “must not regard any statement made by counsel in your presence during the proceedings concerning the facts of this case as evidence,” petitioner contends that Bruton v. United States, supra, disposes of the contention that limiting instructions of this sort can be relied upon to cure the error which occurred. Although the question thus posed is not an easy one, we cannot agree with petitioner’s conclusion.

First of all, it is clear that this case is quite different from either Douglas or Bruton. In Douglas, the prosecutor called the defendant’s coconspirator to the stand and read his alleged confession to him; the coconspirator was required to assert his privilege against self-incrimination repeatedly as the prosecutor asked him to confirm or deny each statement. The Court found that this procedure placed powerfully incriminating evidence before the jury in a manner which effectively denied the right of cross-examination. Here, Rawls was on the stand for a very short time and only a paraphrase of the statement was placed before the jury. This was done not during the trial, while the person making the statement was on the stand, but in an opening statement. In addition, the jury was told that the opening statement should not be considered as evidence. Certainly the impact of the procedure used here was much less damaging than was the case in Douglas. And unlike the situation in Bruton, the jury was not being asked to perform the mental gymnastics of considering an incriminating statement against only one of two defendants in a joint trial. Moreover, unlike the situation in either Douglas or Bruton, Rawls’ statement was not a vitally important part of the prosecution’s case.

We believe that in these circumstances the limiting instructions given were sufficient to protect petitioner’s constitutional rights. As the Court said in Bruton, 391 U. S., at 135, “Not every admission of inadmissible hearsay or other evidence can be considered to be reversible error unavoidable through limiting instructions; instances occur in almost every trial where inadmissible evidence creeps in, usually inadvertently.” See Hopt v. Utah, 120 U. S. 430, 438 (1887). It may be that some remarks included in an opening or closing statement could be so prejudicial that a finding of error, or even constitutional error, would be unavoidable. But here we have no more than an objective summary of evidence which the prosecutor reasonably expected to produce. Many things might happen during the course of the trial which would prevent the presentation of all the evidence described in advance. Certainly not every variance between the advance description and the actual presentation constitutes reversible error, when a proper limiting instruction has been given. Even if it is unreasonable to assume that a jury can disregard a coconspirator’s statement when introduced against one of two joint defendants, it does not seem at all remarkable to assume that the jury will ordinarily be able to limit its consideration to the evidence introduced during the trial. At least where the anticipated, and unproduced, evidence is not touted to the jury as a crucial part of the prosecution’s case, “it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately.” United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 239 (1940).

The Court of Appeals seemed to feel that this aspect of the case turned on whether or not the prosecutor acted “in a good faith expectation that Rawls would testify.” 388 F. 2d, at 780-781. While we do not believe that the prosecutor’s good faith, or lack of it, is controlling in determining whether a defendant has been deprived of the right of confrontation guaranteed by the Sixth and Fourteenth Amendments, we agree with the Court of Appeals’ factual determination in this case. The evidence presented in the record is sufficient to support the Oregon Supreme Court’s conclusion that “the state could reasonably expect [Rawls] to testify in line with his previous statements.” 245 Ore., at 9, 418 P. 2d, at 843, Accordingly, there is no need to decide whether the type of prosecutorial misconduct alleged to have occurred would have been sufficient to constitute reversible constitutional error. Cf. Miller v. Pate, 386 U. S. 1 (1967). Therefore, because we find neither prosecutorial misconduct nor a deprivation of the right of confrontation, we agree with the Court of Appeals that nothing which occurred during the prosecution’s opening statement would warrant federal habeas relief.

II.

Petitioner’s second argument concerns the admission into evidence of his own confession. The circumstances under which the confession was obtained can be summarized briefly. Petitioner was arrested about 4:15 p. m. on September 24, 1964. He was taken to headquarters where questioning began at about 5 p. m. The interrogation, which was tape-recorded, ended slightly more than an hour later, and by 6:45 p. m. petitioner had signed a written version of his confession.

After the questioning had begun and after a few routine facts were ascertained, petitioner was questioned briefly about the location of his Marine uniform. He was next asked where he was on the night in question. Although he admitted that he was with his cousin Rawls, he denied being with any third person. Then petitioner was given a somewhat abbreviated description of his constitutional rights. He was told that he could have an attorney if he wanted one and that anything he said could be used against him at trial. Questioning thereafter became somewhat more vigorous, but petitioner continued to deny being with anyone but Rawls. At this point, the officer questioning petitioner told him, falsely, that Rawls had been brought in and that he had confessed. Petitioner still was reluctant to talk, but after the officer sympathetically suggested that the victim had started a fight by making homosexual advances, petitioner began to spill out his story. Shortly after he began he again showed signs of reluctance and said, “I think I had better get a lawyer before I talk any more. I am going to get into trouble more than I am in now.” The officer replied simply, “You can’t be in any more trouble than you are in now,” and the questioning session proceeded. A full confession was obtained and, after further warnings, a written version was signed.

Since petitioner was tried after this Court’s decision in Escobedo v. Illinois, 378 U. S. 478 (1964), but before the decision in Miranda v. Arizona, 384 U. S. 436 (1966), only the rule of the former case is directly applicable. Johnson v. New Jersey, 384 U. S. 719 (1966). Petitioner argues that his statement about getting a lawyer was sufficient to bring Escobedo into play and that the police should immediately have stopped the questioning and obtained counsel for him. We might agree were Miranda applicable to this case, for in Miranda this Court held that “[i]f . . . [a suspect] indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning.” 384 U. S., at 444-445. But Miranda does not apply to this case. This Court in Johnson v. New Jersey pointedly rejected the contention that the specific commands of Miranda should apply to all post-Escobedo cases. The Court recognized “[t]he disagreements among other courts concerning the implications of Escobedo,” Johnson v. New Jersey, supra, at 734, and concluded that the States, although free to apply Miranda to post-Escobedo cases, id., at 733, were not required to do so. The Oregon Supreme Court, in affirming petitioner’s conviction, concluded that the confession was properly introduced into evidence. Under Johnson, we would be free to disagree with this conclusion only if we felt compelled to do so by the specific holding of Escobedo.

We do not believe that Escobedo covers this case. Petitioner's statement about seeing an attorney was neither as clear nor as unambiguous as the request Escobedo made. The police in Escobedo were unmistakably informed of their suspect’s wishes; in fact Escobedo’s attorney was present and repeatedly requested permission to see his client. Here, on the other hand, it is possible that the questioning officer took petitioner’s remark not as a request that the interrogation cease but merely as a passing comment. Petitioner did not pursue the matter, but continued answering questions. In this context, we cannot find the denial of the right to counsel which was found so crucial in Escobedo.

Petitioner also presses the alternative argument that his confession was involuntary and that it should have been excluded for that reason. The trial judge, after an evidentiary hearing during which the tape recording was played, could not agree with this contention, and our reading of the record does not lead us to a contrary conclusion. Before petitioner made any incriminating statements, he received partial warnings of his constitutional rights; this is, of course, a circumstance quite relevant to a finding of voluntariness. Davis v. North Carolina, 384 U. S. 737, 740-741 (1966). The questioning was of short duration, and petitioner was a mature individual of normal intelligence. The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the “totality of the circumstances,” see, e. g., Clewis v. Texas, 386 U. S. 707, 708 (1967), and on the facts of this case we can find no error in the admission of petitioner’s confession.

III.

Petitioner’s final contention can be dismissed rather quickly. He argues that the trial judge erred in permitting some clothing seized from petitioner’s duffel bag to be introduced into evidence. This duffel bag was being used jointly by petitioner and his cousin Rawls and it had been left in Rawls’ home. The police, while arresting Rawls, asked him if they could have his clothing. They were directed to the duffel bag and both Rawls and his mother consented to its search. During this search, the officers came upon petitioner’s clothing and it was seized as well. Since Rawls was a joint user of the bag, he clearly had authority to consent to its search. The officers therefore found evidence against petitioner while in the course of an otherwise lawful search. Under this Court’s past decisions, they were clearly permitted to seize it. Harris v. United States, 390 U. S. 234 (1968); Warden v. Hayden, 387 U. S. 294 (1967). Petitioner argues that Rawls only had actual permission to use one compartment of the bag and that he had no authority to consent to a search of the other compartments. We will not, however, engage in such metaphysical subtleties in judging the efficacy of Rawls’ consent. Petitioner, in allowing Rawls to use the bag and in leaving it in his house, must be taken to have assumed the risk that Rawls would allow someone else to look inside. We find no valid search and seizure claim in this case.

Because we find none of petitioner’s contentions meritorious, we affirm the judgment of the Court of Appeals.

Affirmed.

Mr. Chief Justice Warren and Mr. Justice Douglas concur in the result.

Mr. Justice Fortas took no part in the consideration or decision of this case.

      A more specific limiting instruction might have been desirable, but none was requested.