United States v. Osborn

• Decision Date: 19 September 1969
• Docket Number: 19124.,No. 17810,17810
• Citation: 415 F.2d 1021
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Z. T. OSBORN, Jr., Defendant-Appellant. Z. T. OSBORN, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

415 F.2d 1021 (1969)

UNITED STATES of America, Plaintiff-Appellee, v. Z. T. OSBORN, Jr., Defendant-Appellant.

Z. T. OSBORN, Jr., Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.

Nos. 17810, 19124.

United States Court of Appeals Sixth Circuit.

September 19, 1969.

Maclin P. Davis, Jr., Nashville, Tenn., for appellant.

Theodore George Gilinsky, Dept. of Justice, Washington, D. C., for appellee; Fred M. Vinson, Jr., Asst. Atty. Gen., Beatrice Rosenberg, Kirby W. Patterson, Attys., Criminal Division, Dept. of Justice, Washington, D. C., Gilbert S. Merritt, Jr., U. S. Atty., Nashville, Tenn., on brief.

Before WEICK, Chief Judge, and O'SULLIVAN, PHILLIPS, EDWARDS, CELEBREZZE, PECK, McCREE and COMBS, Circuit Judges, sitting en banc.

WEICK, Chief Judge.

These appeals were consolidated for argument and were heard by the Court sitting en banc.

Appellant Z. T. Osborn was a prominent Nashville lawyer. He was local counsel for James Hoffa in the criminal case of United States v. Hoffa pending in the United States District Court for the Middle District of Tennessee. That trial resulted in a "hung jury". Osborn was subsequently convicted on May 29, 1964, of endeavoring to bribe a member of the jury panel from which the petit jury to retry the Hoffa case was scheduled to be drawn. He was sentenced to three and one-half years imprisonment. He has since been paroled. Osborn's conviction was affirmed by this Court in United States v. Osborn, 350 F.2d 497 (1966), and by the Supreme Court in Osborn v. United States, 385 U.S. 323, 87 S.Ct. 429, 17 L.Ed.2d 394 (1966), rehearing denied, 386 U.S. 938, 87 S.Ct. 951, 17 L.Ed.2d 813 (1967).

While his appeal was pending in this Court, Osborn filed in the District Court a second motion for a new trial based on newly discovered evidence which he claimed would establish that the Government knowingly used perjured testimony of its witness Robert D. Vick to obtain his conviction. He supported his motion with affidavits and the Government offered counter-affidavits. By stipulation, the District Judge heard the motion on the original record of the criminal trial, affidavits, briefs and oral argument. The Court resolved the factual issues against Osborn in adopting findings of fact and conclusions of law and it denied the motion.

On appeal, in No. 17810, a panel of this Court, one judge dissenting, remanded the case to the District Court "for a full evidentiary hearing on the motion".

The Government filed a motion for rehearing of the appeal en banc, which was granted by the Court, three Judges dissenting. The opinion of the panel was withheld from publication and the mandate stayed pending the outcome of the rehearing en banc.

Upon the rehearing en banc, the Court was evenly divided both as to whether or not the case should be remanded for an evidentiary hearing and as to the procedural effect of an evenly divided vote after the rehearing.¹ Meanwhile, Osborn filed in the District Court a Title 28, Section 2255 motion to vacate sentence embodying in ground No. 5 thereof essentially the same allegations as were set forth in the second motion for a new trial. We ordered that the decision in the appeal in No. 17810 be held in abeyance pending receipt and incorporation into the record of the appeal, the testimony and findings of the District Court relevant to ground No. 5 of said Section 2255 motion.

Prior to the hearing of the Section 2255 motion, Osborn obtained extensive discovery by means of depositions and interrogatories. The District Court ordered his return from prison so that he could prepare for and attend the hearing.

The District Court conducted an evidentiary hearing on the motion on August 19, 20 and 21, 1968. The Court considered the motion on the original record, depositions, exhibits and oral testimony of a number of witnesses including Osborn. It again resolved the factual issues against Osborn. It adopted 30 findings of fact and 6 conclusions of law and denied the motion to vacate sentence. Osborn has appealed therefrom in No. 19124. The record in the Section 2255 hearing has also been filed in Appeal No. 17810 pursuant to our previous order.

The findings of fact and conclusions of law adopted by the District Court are appended hereto.

The Alleged Erroneous Instruction

Osborn first contends that the District Court in the trial of the criminal case gave an erroneous instruction to the jury which operated to direct the jury to return a guilty verdict against him. Osborn made this same contention in his direct appeal. We noted in our opinion in that case that at the conclusion of the charge both sides stated that they had no exceptions to the charge given, 350 F.2d 497, 507, 508. Osborn was represented by experienced, able counsel. Osborn was an able trial lawyer with wide experience in trial and appellate courts, including extensive experience in the federal courts. He had served as City Attorney of Nashville and as Assistant United States Attorney for the Middle District of Tennessee. If the District Judge really had directed the jury to return a guilty verdict against Osborn, the objections to it, we believe, would have been loud and clear. Instead, not having taken any exception to the Court's instructions, as given, he relies on the plain error rule. Fed.R. Crim.P. 52(b).

In the direct appeal, we found no plain error in the Court's charge to the jury. We stated that considering the charge "as a whole and its paragraphs in proper context, we find the charge essentially fair." 350 F.2d at 508. We decline to change our ruling.

Since our decision was affirmed by the Supreme Court, Osborn should be precluded from litigating the identical issue which has been adjudicated against him. In any event, this issue can only be raised on direct appeal and is not properly the subject of a Section 2255 motion. Banks v. United States, 287 F.2d 374 (7th Cir. 1961); cert. denied, 366 U.S. 939, 81 S.Ct. 1668, 6 L.Ed.2d 850; United States v. Stevens, 260 F.2d 549 (3rd Cir. 1958).

The Sufficiency of the Evidence

Osborn in his direct appeal in this Court, and also in the Supreme Court, raised the question that what he did constituted no violation of the jury-tampering statute (18 U.S.C. § 1503). 350 F.2d at 503 and 385 U.S. at 332, 87 S.Ct. 429. This issue was also decided adversely to him by both courts. He now raises the same question in the present appeals, although in slightly different form.

Osborn contends that since this Court had granted a stay of proceedings in the Hoffa criminal trial pending Supreme Court review of a mandamus action filed by Hoffa against the District Judge, that the petit juror which Osborn endeavored to bribe was really not a prospective juror in the Hoffa trial.

The facts are that on July 29, 1963, the Hoffa case was set for trial in Nashville on October 14, 1963. On October 3, 1963, we granted the stay. The stay was terminated by the Supreme Court on November 12, 1963 when certiorari was denied in the mandamus action.

That Osborn expected a prompt adverse ruling by the Supreme Court in the mandamus action with a dissolution of the stay order and the assignment of the Hoffa case for trial is revealed in his recorded conversation on November 11, 1963 with Robert Vick whom he had instructed to offer a bribe to the prospective juror Elliot:

"`Osborn: Tell him juror Elliott it\'s a deal.

`Vick: It\'s what?

`Osborn: That it\'s a deal. What we\'ll have to do when it gets down to the trial date, when we know the date, tomorrow for example if the Supreme Court rules against us, well, within a week we\'ll know when the trial comes. Then he has has to be certain that when he gets on the jury, he\'s got to know that he\'ll just be talking to you and nobody else.\'

* * * * * *

`Osborn: It will be a week at least until we know the trial date.\'"

350 F.2d at 500, 502.

Osborn attempted to protect himself in his recorded conversation with Vick by stipulating that the prospective juror was not to get the bribe money unless he was accepted as a juror.

The facts as to the stay were brought out in Osborn's criminal trial and were before this Court on appeal. In our opinion in the direct appeal we said:

"This Hoffa jury tampering case was originally scheduled to be tried in the United States District Court for the Middle District of Tennessee, Nashville, Tennessee, and it was expected that the jury panel for that District would be the panel from which the Hoffa, et al., jury tampering case would be chosen." 350 F.2d at 499.

Elliott was on the jury panel expected to try the Hoffa case at the time endeavors were made to bribe him. The unlawful endeavors were not rendered lawful because the jury panel of which Elliott was a member did not eventually try the Hoffa case. Moreover, we have repeatedly held that the sufficiency of the evidence to support a conviction may not be collaterally reviewed on a Section 2255 proceeding. United States v. Shields, 291 F.2d 798 (6th Cir. 1961), cert. denied, 368 U.S. 933, 82 S.Ct. 371, 7 L.Ed.2d 196.

We are of the opinion that there was substantial evidence to support the conviction. The decision of the Supreme Court in Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960), on which Osborn relies and which was a direct appeal, is inapposite.

The Alleged Perjury

The perjury alleged to have been committed by Vick related to his answers to questions affecting his credibility as a witness. It was not on the subject of whether Osborn did endeavor to bribe a prospective juror in the Hoffa case which was the crime that the indictment charged Osborn with committing.

That Osborn did endeavor to bribe the juror was clearly established by his own admission that the transcript of the tape recording the conversation between Osborn and Vick containing his offer to bribe was "substantially correct."

Osborn's defense to the jury tampering charge was by way of confession and avoidance, namely,...