169 Opinion of WARREN, C. J. tion and content-was violative of the Speech or Debate Clause. I also join the Court in its remand of the conspiracy count for a new trial, this time purged of offensive matter. The Court's refusal to decide the validity of the conviction under the seven substantive counts, however, prompts me to dissent. In my view, the conflict of interest counts are properly before us, raise important questions and should be resolved now since the respondent will probably raise these issues on his forthcoming reprosecution. I. The Court explains its refusal to reach the substantive counts by referring to a single statement made by the Government's counsel at the outset of oral argument, p. 186, n. 16, ante. In the same colloquy, the Government remarked that it did not consider the issues raised by the substantive counts to be of general importance, and felt that the question of the effect of the tainted evidence on these counts would unavoidably require an examination of the entire 1,300-page record. Prior to oral argument, the Government had argued these issues exhaustively in the Court of Appeals, and had mentioned them in its petition for certiorari in compliance with Supreme Court Rule 40 (1)(d)(1) and (2), and in its reply brief on the merits. Both in its reply brief and later in oral argument, in answer to inquiries from the Bench, it contended that the evidence, arguments and instructions on the conspiracy count were distinct from the substantive counts. At best, then, the Government's position is ambiguous, if not puzzling.' Beyond that, 1I confess to some surprise that the Government almost abandoned these issues when in this Court, even though the major question in the case is the application of the Speech or Debate Clause. In the first place, this Court has not had occasion to deal with the conflict of interest statutes as applied to a Member of Congress Opinion of WARREN, C. J. 383 U.S. the respondent himself specifically urged this Court to consider the issues in his brief on the merits, pp. 100-101 and n. 86, devoted 33 pages of argument to this phase of the case and addressed himself to the questions on oral argument. Under these unique circumstances, I think it is our duty carefully to scrutinize all the facts and issues involved in the prosecution. II. After reading the record, it is my conclusion that the Court of Appeals erred in determining that the evidence concerning the speech infected the jury's judgment on the substantive counts. The evidence amply supports the prosecution's theory and the jury's verdict on these counts that the respondent received over $20,000 for attempting to have the Justice Department dismiss an indictment against his co-conspirators, without disclosing his role in the enterprise. This is the classic example of a violation of § 281 by a Member of the Congress." See May v. United States, 175 F. 2d 994, 1006 (C. A. D. C. Cir.); United States v. Booth, 148 F. 112, 117 (Cir. Ct. D. since 1906, Burton v. United States, 202 U. S. 344, and they remain viable although lately revised, see Manning, Federal Conflict of Interest Law 14-73 (1964). Moreover, the Government itself has argued strenuously and successfully in many cases that an erroneous conviction on one count does not vitiate a conviction on other counts, especially where concurrent sentences are involved, see, e. g., United States v. Romano, 382 U. S. 136; United States v. Gainey, 380 U. S. 63, 65; Sinclair v. United States, 279 U. S. 263, 299; Barnard v. United States, 342 F. 2d 309 (C. A. 9th Cir.), certiorari denied, 382 U. S. 948. There are, in addition, numerous cases in which the issue was raised in this Court and the petitioner-defendant was denied certiorari. 2 The sentence given was lenient-six months on each count, but all to run concurrently. The conspiracy statute, 18 U. S. C. § 371, authorizes a five-year prison term and a $10,000 fine, and the conflict of interest statute in effect at the trial permitted a two-year sentence and a $10,000 fine for each violation, 18 U. S. C. § 281. 169 Opinion of WARREN, C. J. Ore.). The arguments of government counsel and the court's instructions separating the conspiracy from the substantive counts seem unimpeachable. The speech was a minor part of the prosecution. There was nothing in it to inflame the jury and the respondent pointed with pride to it as evidence of his vigilance in protecting the financial institutions of his State. The record further reveals that the trial participants were well aware that a finding of criminality on one count did not authorize similar conclusions as to other counts, and I believe that this salutary principle was conscientiously followed. Therefore, I would affirm the convictions on the substantive counts. IDAHO SHEET METAL WORKS, INC. v. WIRTZ, SECRETARY OF LABOR. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT. No. 30. Argued December 8, 1965.-Decided February 24, 1966.* In No. 30 the employer, petitioner, has 12 workers who fabricate, install and repair sheet metal products. While about 60% of sales in number are to the general public, about 83% of gross income comes from work done, generally on individual specifications for sizable pieces of equipment, for five potato processing companies which dehydrate and freeze potatoes for interstate shipment. In reply to respondent's claim that it was violating the overtime provisions of the Fair Labor Standards Act of 1938, petitioner denied that its workers engaged in or produced goods for interstate commerce and asserted that it was a "retail or service establishment" under § 13 (a)(2) of the Act, which exempts certain establishments 75% of whose dollar volume of sales is not for resale and is recognized as retail sales or services in the industry. Petitioner showed that 75% of its dollar volume was not for resale and that its officials and salesmen who sell to it regarded the business as retail. The District Court agreed with petitioner, but the Court of Appeals reversed. Respondent employer in No. 31 is a franchised tire dealer with 47 employees engaged in selling, recapping and repairing tires. More than half its gross income comes from sales and repairs of tires furnished to businesses using heavy industrial or construction vehicles or fleets of trucks, operating to a sizable but unspecified extent in interstate commerce. Respondent alleged that it came within the § 13 (a) (2) exemption and showed that 75% of its sales were not for resale and that the industry's use of the word retail applied to all sales not for. resale, despite the commercial character of the tires and an established pattern of quantity discounts. Petitioner showed that the word retail was used by the industry in other senses which excluded commercial sales and that respondent's commercial customers did not regard *Together with No. 31, Wirtz, Secretary of Labor v. Steepleton General Tire Co., Inc., et al., on certiorari to the United States Court of Appeals for the Sixth Circuit. their purchases as at retail. Petitioner also introduced his official guidelines, which class as nonretail all sales to fleets of five or more vehicles at "wholesale prices," defined as those charged on sales for resale or on sales to 10-vehicle fleets. The District Court held respondent to be within the interstate commerce coverage of the Act but to be entitled to the exemption, and the Court of Appeals affirmed. Held: 1. The industry-usage test is not in itself controlling in determining when business transactions are retail sales under the Act. Pp. 199-202. 2. While the typical retail sale is one involving goods or services that are frequently acquired for family or personal use, Congress also intended that the retail exemption extend somewhat beyond consumer goods and services, to include certain nondomestic or nonconsumer products-for example, farm implements and certain types of trucks. Pp. 203-204. 3. Within the category of goods and services that can be sold at retail, not every sale can be so classified. Sales for resale are excluded by the language of the exemption, and the legislative history and common usage indicate that the term retail becomes less appropriate as the quantity and price discount increase in a transaction. Pp. 204-205. 4. The sheet metal company is disqualified as a retail establishment since 83% of its gross income is derived from the fabrication and maintenance of potato processing equipment, which appears to have no private or noncommercial utility and bears little resemblance to those strictly commercial articles which may be sold at retail. Pp. 205-207. 5. The tire company, which as the employer has the burden of proof in establishing its exemption under § 13 (a) (2), has not met that burden, as it has failed to show that the transactions qualified as retail under the Secretary's guidelines for retail sales, which in pertinent part are sustained in view of the common conception of the term retail as excluding sales made in quantity and at significant discounts, and in view of the legislative history in respect thereto. Pp. 207-209. 335 F. 2d 952, affirmed; 330 F. 2d 804, reversed. Eli A. Weston argued the cause for petitioner in No. 30. On the brief was T. H. Eberle. |