Osborn v. United States Hoffa v. United States Lewis v. United States

Decision Date12 December 1966
Docket Number32 and 36,Nos. 29,s. 29
Citation385 U.S. 323,87 S.Ct. 439,17 L.Ed.2d 394
PartiesZ. T. OSBORN, Jr., Petitioner, v. UNITED STATES. James R. HOFFA, Petitioner, v. UNITED STATES. Duke Lee LEWIS, Petitioner, v. UNITED STATES
CourtU.S. Supreme Court

Mr. Justice STEWART delivered the opinion of the Court.

The petitioner, a Nashville lawyer, was convicted in the United States District Court for the Middle District of Tennessee upon one count of an indictment under 18 U.S.C. § 1503, which charged him with endeavoring to bribe a member of the jury panel in a prospective federal criminal trial.1 The conviction was affirmed by the Court of Appeals, 350 F.2d 497. We granted certiorari, 382 U.S. 1023, 86 S.Ct. 644, 15 L.Ed.2d 538, primarily to consider whether the conviction rests upon unconstitutionally acquired evidence, although the petitioner also presses other claims.

In late 1963, James R. Hoffa was awaiting trial upon a criminal charge in the federal court in Nashville, and the petitioner, as one of Hoffa's attorneys, was engaged in preparing for that trial. In connection with these preparations the petitioner hired a man named Robert Vick to make background investigations of the people listed on the panel from which members of the jury for the Hoffa trial were to be drawn. Vick was a member of the Nashville police department whom the petitioner had employed for similar investigative work in connection with another criminal trial of the same defendant a year earlier. What the petitioner did not know was that Vick, before applying for the job with the petitioner in 1963, had met several times with federal agents and had agreed to report to them any 'illegal activities' he might observe.

The conviction which we now review was upon the charge that the petitioner 'during the period from on or about November 6, 1963, up to and including November 15, 1963, * * * did unlawfully, knowingly, wilfully and corruptly endeavor to influence, obstruct and impede the due administration of justice * * *' in that he 'did request, counsel and direct Robert D. Vick to contact Ralph A. Elliott, who was, and was known by the said Osborn to be, a member of the petit jury panel from which the petit jury to hear the (Hoffa) trial was scheduled to be drawn, and to offer and promise to pay the said Ralph A. Elliott $10,000 to induce the said Elliott to vote for an acquittal, if the said Elliott should be selected to sit on the petit jury in the said trial.' 2 The primary evidence against the petitioner on this charge consisted of Vick's testimony, a tape recording of a conversation between the petitioner and Vick, and admissions which the petitioner had made during the course of federal disbarment proceedings.

Vick testified that during a discussion with the petitioner at the latter's office on November 7, he mentioned that he knew some of the prospective jurors. At this, according to Vick, the petitioner 'jumped up,' and said, 'You do? Why didn't you tell me?' The two then moved outside into the adjacent alley to continue the conversation. There, Vick testified, he told the petitioner that one of the prospective jurors, Ralph Elliott, was his cousin, and the petitioner told Vick to pay a visit to Elliott to see what arrangements could be made about the case. Vick also testified to meetings with the petitioner on November 8 and November 11, when he told the petitioner, falsely, that he had visited Elliott and found him 'susceptible to money for hanging this jury,' to which the petitioner responded by offering $5,000 to Elliott if he became a member of the jury and an additional $5,000 'when he hung the jury, but he would have to go all the way, and to assure Mr. Elliott that he would not be alone, that there would be some other jurors in there.'


No claim is made in this case that Vick's testimony about the petitioner's incriminating statements was inadmissible in evidence. Cf. Hoffa v. United States, 385 U.S. 293, 87 S.Ct. 408, 17 L.Ed.2d 374; Lewis v. United States, 385 U.S. 206, 87 S.Ct. 424, 17 L.Ed.2d 312. What is challenged is the introduction in evidence of a tape recording of one of the conversations about which Vick testified, specifically the conversation which took place in the petitioner's office on November 11. The recording of this conversation was played for the jury, and a written transcript of it was introduced in evidence. We are asked to hold that the recording should have been excluded, either upon constitutional grounds, Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, or in the exercise of our supervisory power over the federal courts. McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819.

There is no question of the accuracy of the recording. The petitioner testified that it was a 'substantially correct' reproduction of what took place in his office on November 11. There can be no doubt, either, of the recording's probative relevance. It provided strong corroboration of the truth of the charge against the petitioner.3 The recording was made by means of a device concealed upon Vick's person during the November 11 meeting. We thus deal here not with surreptitious surveillance of a private conversation by an outsider, cf. Silverman v. United States, 365 U.S. 505, 81 S.Ct. 679, 5 L.Ed.2d 734, but, as in Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, with the use by one party of a device to make an accurate record of a conversation about which that party later testified. Unless Lopez v. United States is to be disregarded, therefore, the petitioner cannot prevail.4

But we need not rest our decision here upon the broad foundation of the Court's opinion in Lopez, because it is evident that the circumstances under which the tape recording was obtained in this case fall within the narrower compass of the Lopez concurring and dissenting opinions. Accordingly, it is appropriate to set out with some precision what these circumstances were.

Immediately after his November 7 meeting with the petitioner, at which, according to Vick, the possibility of approaching the juror Elliott was first discussed, Vick reported the conversation to an agent of the United States Department of Justice. Vick was then requested to put his report in the form of a written statement under oath, which he did.5 The following day this sworn statement was shown by government attorneys to the two judges of the Federal District Court, Chief Judge Miller and Judge Gray. After considering this affidavit, the judges agreed to authorize agents of the Federal Bureau of Investigation to conceal a recorder on Vick's person in order to determine from recordings of further conversations between Vick and the petitioner whether the statements in Vick's affidavit were true. It was this judicial authorization which ultimately led to the recording here in question.6

The issue here, therefore, is not the permissibility of 'indiscriminate use of such devices in law enforcement,'7 but the permissibility of using such a device under the most precise and discriminate circumstances, circumstances which fully met the 'requirement of particularity' which the dissenting opinion in Lopez found necessary.8

The situation which faced the two judges of the District Court when they were presented with Vick's affidavit on November 8, and the motivations which prompted their authorization of the recorder are re- flected in the words of Chief Judge Miller. As he put it, 'The affidavit contained information which reflected seriously upon a member of the bar of this court, who had practiced in my court ever since I have been on the bench. I decided that some action had to be taken to determine whether this information was correct or whether it was false. It was the most serious problem that I have had to deal with since I have been on the bench. I could not sweep it under the rug.'

So it was that, in response to a detailed factual affidavit alleging the commission of a specific criminal offense directly and immediately affecting the administration of justice in the federal court, the judges of that court jointly authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth of the affidavit's allegations. As the district judges recognized, it was imperative to determine whether the integrity of their court was being undermined, and highly undesirable that this determination should hinge on the inconclusive outcome of a testimonial contest between the only two people in the world who knew the truth—one an informer, the other a lawyer of previous good repute. There could hardly be a clearer example of "the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment" as 'a precondition of lawful electronic surveillance.'9 We hold on these facts that the use of the recording device was permissible, and consequently that the recording itself was properly admitted as evidence at the petitioner's trial.


The petitioner's defense was one of entrapment, and he renews here the contention made in his motion for acquittal at the trial that entrapment was established as a matter of law. We cannot agree.

The validity of the entrapment defense depended upon what had transpired at the meetings between the petitioner and Vick which took place before the recorded conversation of November 11. According to the petitioner, Vick initiated the idea of making a corrupt approach to Elliott on October 28, and the petitioner at first resisted the suggestion and tried to discourage Vick from carrying it out. The petitioner conceded that he ultimately acquiesced in the scheme, out of 'weakness' and because he was exhausted from overwork, but said that he never seriously intended actually to carry out the plan to bribe Elliott. But Vick's version of what had happened was, as stated above, quite different, and the truth of the matter was for the jury to...

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    ...41, 87 S.Ct. 1873, 18 L.Ed.2d 1040; Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576, and Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394. In order to consider the defendant's statutory claims, we must first examine the constitutional background of wiret......
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  • Obstruction of justice.
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    • American Criminal Law Review Vol. 49 No. 2, March 2012
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