Osborn v. United States

385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394, 1966 U.S. LEXIS 2940
CourtSupreme Court of the United States
DecidedJanuary 23, 1967
Docket29
StatusPublished
Cited by418 cases

This text of 385 U.S. 323 (Osborn v. United States) is published on Counsel Stack Legal Research, covering Supreme Court of the United States primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Osborn v. United States, 385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394, 1966 U.S. LEXIS 2940 (1967).

Opinions

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 certio-rari, 382 U. S. 1023, primarily to consider whether the [325]*325conviction 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 [326]*326The 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.”

I.

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, ante, p. 293; Lewis v. United States, ante, p. 206. 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 [327]*327are asked to hold that the recording should have been excluded, either upon constitutional grounds, Weeks v. United States, 232 U. S. 383, or in the exercise of our supervisory power over the federal courts. McNabb v. United States, 318 U. S. 332.

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, but, as in Lopez v. United States, 373 U. S. 427, 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.

[328]*328Immediately 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 [329]*329conversations 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 particu- / larity” which the dissenting opinion in Lopez found necessary.8

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Sullivan
2011 Ohio 4967 (Ohio Court of Appeals, 2011)
State v. Delos Santos
238 P.3d 162 (Hawaii Supreme Court, 2010)
Kaleikini v. Thielen
237 P.3d 1067 (Hawaii Supreme Court, 2010)
State v. Martin
2008 VT 53 (Supreme Court of Vermont, 2008)
Bradley v. United States
164 F. Supp. 2d 437 (D. New Jersey, 2001)
United States v. Aguilar
515 U.S. 593 (Supreme Court, 1995)
United States v. Koyomejian
970 F.2d 536 (Ninth Circuit, 1992)
Sparks v. State
603 A.2d 1258 (Court of Special Appeals of Maryland, 1992)
United States v. Andonian
735 F. Supp. 1469 (C.D. California, 1990)
United States v. Smith
729 F. Supp. 1380 (District of Columbia, 1990)
United States v. Bucey
691 F. Supp. 1077 (N.D. Illinois, 1988)
United States v. Biasucci
786 F.2d 504 (Second Circuit, 1986)
Hoback v. State
689 S.W.2d 569 (Supreme Court of Arkansas, 1985)
United States v. Anaya
601 F. Supp. 1318 (E.D. California, 1985)
United States v. Handley
591 F. Supp. 1257 (N.D. Alabama, 1984)
United States v. Dozier
543 F. Supp. 880 (M.D. Louisiana, 1982)
United States v. Raineri
521 F. Supp. 16 (W.D. Wisconsin, 1980)
United States v. Platshorn
488 F. Supp. 1367 (S.D. Florida, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
385 U.S. 323, 87 S. Ct. 429, 17 L. Ed. 2d 394, 1966 U.S. LEXIS 2940, Counsel Stack Legal Research, https://law.counselstack.com/opinion/osborn-v-united-states-scotus-1967.