Hoffa v. United States

PETITIONER:James R. Hoffa
RESPONDENT:United States
LOCATION: U.S. District Court for the Middle District of Tennessee

DOCKET NO.: 32
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Sixth Circuit

CITATION: 385 US 293 (1966)
ARGUED: Oct 13, 1966
DECIDED: Dec 12, 1966
GRANTED: Jan 31, 1966

ADVOCATES:
Assistant General Vinson – for the respondent
Joseph A. Fanelli – for the petitioners
Nathan Lewin – for the respondent

Facts of the case

These are several consolidated cases involving similar circumstances. In the lead case, a district court in Tennessee tried and convicted James Hoffa, the president of a labor union, for attempting to bribe members of a jury in an earlier trial. A paid government informer provided substantial evidence in the bribery trial. The informer was another local union officer who met with Hoffa on several occasions during the first trial. At that time, the government had not hired the officer as an informant. Hoffa alleged that the evidence gathered from this informer violated his Fourth, Fifth and Sixth Amendment rights. The U.S. Court of Appeals for the Sixth Circuit affirmed the conviction.

Question

Did use of the informant’s evidence invalidate the convictions?

Earl Warren:

Number 32, James R.Hoffa, petitioner, versus United States.

Number 33, Thomas Ewing Parks, petitioner, versus United States and Number 34, Larry Campbell, petitioner, versus United States and Number 35, Ewing King, petitioner, versus United States.

Joseph A. Fanelli:

If I may have just a moment?

Earl Warren:

Yes you may Mr. Fanelli, take your time.

Mr. Fanelli.

Joseph A. Fanelli:

Mr. Chief Justice, may it please the Court.

I appear in behalf of all the petitioners in the four individual appeals which are consolidated for argument today.

They are petitioners Hoffa, King, Campbell and Parks.

These four petitioners were convicted in one joint trial on charges of jury tampering.

To the affirmance of the Sixth Circuit Court of Appeals of those convictions, this Court granted certiorari upon one question.

That question reads and I quote whether evidence obtained by the Government by means of deceptively placing a secret informer in the quarters and counsels of the defendant during one criminal trial so violates the defendant’s Fourth, Fifth and Sixth Amendment rights that suppression of such evidence is required in a subsequent trial of the same defendant on a different charge.

The phrases used in this question upon which the court granted certiorari made more intelligible by placing them in the context of the particular facts presented by these cases or by this case, really.

Earl Warren:

They were all tried together.

Joseph A. Fanelli:

The question refers to two criminal trials.

The first of these was the trial of petitioner Hoffa in Nashville on a criminal charge, a misdemeanor charge of violating the Labor Management Relations Act.

That trial started on October 22, 1962 and continued on into December of 1962.

That trial ended with a hung jury.

(Inaudible)

Joseph A. Fanelli:

Yes sir.

I was just about to say that the shorthand reference throughout this argument I shall refer to it as the Test Fleet case or the Test Fleet trial or the Test Fleet offense whichever.

Earl Warren:

This involved in the context.

Joseph A. Fanelli:

The second trial of the two trials referred to in the question upon which this Court granted certiorari is of course the trial in this proceeding.

That trial began and ended in 1964.

In that trial, the petitioners were convicted of tampering with the jury in the Test Fleet case which had occurred in Nashville in 1962 from October 22 then to December.

The question refers to a deceptively placed secret informer.

That reference is to one Edward Partin.

That is P-A-R-T-I-N.

It refers to evidence obtained by the Government.

This means in the context of this particular case incriminating statements, admission statements allegedly made by petitioners Hoffa and King during the course of the Test Fleet trial in 1962.

These as testified to by Partin in this proceeding secured the conviction of petitioners.

Joseph A. Fanelli:

Beginning with October 22, 1962, the opening date of the Test Fleet trial, Partin according to his testimony in this proceeding heard and in summons, he said overheard the alleged incriminating statements petitioners Hoffa and King that he claimed in this proceeding.

Some of them he heard and some of them he overheard in the hotel suite which petitioner Hoffa occupied in the Andrew Jackson Hotel in Nashville during the whole course of the Test Fleet trial and which served during the course of that trial both as his home and as the headquarters for his defense in the Test Fleet case.

Finally, in providing context for the question presented here, we identify two Government officials, Department of Justice officials.

One you’ve already heard a little about.

That is Walter Sheridan, a non-lawyer layman who was assisting in the preparation and prosecution of the Test Fleet, the Government’s Test Fleet case in Nashville in 1962.

The other Department of Justice official involved in this case is Mr. Frank Grimsley, a lawyer in the criminal division of the Department of Justice generally stationed in Atlanta, Georgia who was at all of the relevant times to this argument Mr. Sheridan’s subordinate.

The question on which this Court granted certiorari presents five constitutional issues.

Three of those issues they are points Roman I, II and V of our brief, I will cover in this oral argument in the following order.

First, we urge that many of the statements, incriminating statements, allegedly obtained by party from petitioners Hoffa and King were barred by the Fourth Amendment as the immediate product of numerous illegal entries made by secret government agent Partin into petitioner office home suite without a warrant and when looking for evidence of jury tampering or other illegal activities.

As we understand the Government’s position, the Government does not deny the illegality of Partin’s repeated entries into petitioner Hoffa’s home suite throughout the duration of the Test Fleet trial.

Potter Stewart:

Well, that may be — that may be agreed upon between you and the Government but I must say I have difficulty understanding why these entries were illegal.

Joseph A. Fanelli:

Well, we say they were illegal because as I will develop in further detail on this argument Mr. Justice Stewart, we say that they were illegal because he was a government agent which was being hidden at the time of these entries into a home for the purpose of looking for evidence that they were therefore illegal because if the Government agrees with us an entry into a home without a warrant by deception and an entry into a home without a warrant by force are equivalents under the Fourth Amendment in view of Gouled and the (Inaudible) case.

Potter Stewart:

Well, what if — let’s say when a plane clothes detective enters premises to investigate whether or not illegal activities, criminal activities going on there, is that an illegal entry?

Joseph A. Fanelli:

Well, if he comes to the door as the helper of the household in the preparation of his defense and as his union colleague but at the same time is and is hiding his identity as a government secret agent.

Now, if your use of the phrase Mr. Justice Stewart, a private detective not connected with the Government.

Potter Stewart:

No, I said a plane clothes.

Joseph A. Fanelli:

But connected with the Government, yes.

Potter Stewart:

A policeman who wasn’t obviously a plane —

Joseph A. Fanelli:

Yes, if he hit the entrance with deception and concealed his identity as a police, we’re not — this opposition —

(Voice Overlap) I didn’t understand the difference (Inaudible).

Joseph A. Fanelli:

Well, Your Honor, what they do as we understand it, and I will advert further to this in the course of my argument, they at no point deny the illegality of the entry.

They go further than that and state that in view of the illegal entry had he been hiding in a closet these admissions would have been inadmissible but that the illegality of the entry is immaterial in view of the fact that the statements was directed to him which I will come into further detail later Mr. Justice Harlan.

As I have already noted in answer to Mr. Justice Stewart’s question, the Government specifically concedes that force is the equivalent of fraud for the purpose of Fourth Amendment entries into a home and it concedes further that the Fourth — the protection of the Fourth Amendment extends to verbal statements although they argue as I will note later not this type of reference.

Second, we urge that the alleged incriminating statements testified to by Partin were barred by the Sixth Amendment as the very product and the very objective of Partin’s intrusion as a secret government agent into petitioner office defense of the Test Fleet case.

The Government admits in its brief and this is not our understanding of it but a specific admission of the Government that Sheridan knowingly risked precisely such a violation of the Sixth Amendment.

In other words, as we logically understand the Government’s position, the question upon which this Court granted certiorari at least so far as it concerns the Sixth Amendment is conceded in our favor if that question as stated accurately reflects the record and finally, in this oral argument we will urge that the testimony was barred, the incriminated statements as the product of a — I’ve forgotten the phrase but Mr. Lewin used this morning as the product of a whole course of Government conduct contrary to the standards of fundamental fairness required by the Due Process Clause.

The remaining two issues, they are points three and four of our brief are concerned with Sixth Amendment rights that counsel with respect to this proceeding rather than the Test Fleet case and with Fifth Amendment rights against self-incrimination with respect — directly with respect to this proceeding rather than the Test Fleet case and these if Your Honors please, we submit on our brief.

The facts which must guide and govern decision on all the constitutional issues presented are the same.

At the outset of a summary event, we should recall the identity of the principle persons who play a role in those facts.

Petitioner Hoffa of course is the defendant on trial in the Test Fleet case beginning on October 22, 1962 and continuing on trial into the December of that year.

Joseph A. Fanelli:

Mr. Sheridan is the Department of Justice official as I mentioned a moment ago who was in Nashville throughout the Test Fleet trial assisting in the preparation and prosecution of a Government’s case.

Mr. Grimsley, his subordinate, Mr. Grimsley, a lawyer, his subordinate generally stationed in Atlanta from the criminal division of the Department of Justice and Edward Partin is no sort a policeman Mr. Chief Justice either state or federal at the opening of these facts.

He is a local Teamster union official in Baton Rouge but prior to the opening of the Test Fleet trial on October 22, he indubitably became as the detail of facts I will recite in a moment would show.

He indubitably became the government secret agent and acted as such throughout the Test Fleet trial.

The opening scene of the facts is in late September 1962.

It finds party in a Baton Rouge jail, local state jail upon a charge of kidnapping with bail having been denied.

At the same time, Partin is facing a 26 count federal indictment for embezzlement and state charges of man slaughter and forgery.

Being so situated in late September of 1962, Partin tells the local state officials a story of a plot in the preceding summary by petitioner Hoffa to assassinate the then Attorney General Robert Kennedy and Partin as to speak with the federal officials.

As a result, Partin meets with Grimsley, the Department of Justice criminal lawyer, a lawyer in the criminal division at two conferences in early October held in the officers of the local state prosecutor between midnight and dawn on two mornings.

These conferences were held at these unusual hours to hide the fact that Partin was an agent.

As we read —

Potter Stewart:

Hide the fact that Partin was what?

Joseph A. Fanelli:

Was engaging in conferences —

Potter Stewart:

engaging in them, I see.

Joseph A. Fanelli:

— with Grimsley, yes sir.

Potter Stewart:

Thank you.

Joseph A. Fanelli:

And this is not my inference from the record.

This is specifically —

Potter Stewart:

It’s because they trusted the jailer who was on duty at that period.

Joseph A. Fanelli:

That’s right.

Apparently, they had the more trusted jailer at sunrise than the man they had at sunset.

Earl Warren:

What time was this you say?

Joseph A. Fanelli:

One of these — you mean by way of time of day?

Earl Warren:

What time of the day at night, yes.

I thought you made some —

Joseph A. Fanelli:

They were between midnight and dawn.

Now, as we read Grimsley’s testimony in this proceeding, Partin became the Government’s informer at one of these early morning conferences on October 8.

Now, the Government reads it otherwise but in any event, we say it is not of any great materiality in this case because as we shall see in a moment in detail, there is absolutely no question on this record that Partin agreed with Grimsley in Atlanta on October 20th, two days before the Test Fleet case started that he would report evidence of illegal activity, jury tampering, witness intimidation or anything else of interest to the Government.

But to go back to the chronology of the facts, within a few days of these early morning conferences, Partin is released from jail.

By two long distance calls to petitioner Hoffa on October 8 and October 18, Partin successfully invites himself to Nashville to meet with petitioner Hoffa on October 22, the opening day of the Test Fleet trial.

Joseph A. Fanelli:

The ostensible purpose of that meeting as stated by Partin in these telephone conversations and they are in the record was to discuss his personal problems with petitioner Hoffa.

As soon as Partin knew that he was going to be in Nashville on October 22nd to meet with Hoffa, he immediately advised Grimsley and Grimsley advised Sheridan.

Sheridan instructed Grimsley to give his Nashville telephone number to Partin and “to tell Mr. Partin that when he got to Nashville, if he saw any evidence of jury tampering or other illegal activities to call me.”

The quote of course is from Sheridan himself from his testimony in this proceeding.

So instructed by Sheridan, Grimsley got Partin to come from Baton Rouge to Atlanta to confer with Grimsley in Atlanta in October 28th which as I have already remark is two days before the opening of the Test Fleet trial.

At that conference, Partin agreed with Grimsley, to keep his eyes and ears open in Nashville and report to Sheridan on any attempts at witness intimidation or tampering with the jury.

This is a testimony of a local state official who was also present at that conference.

As Grimsley himself sums it up, at that conference, he gave Partin, and I quote.

“Instructions to keep his eyes and ears open when he was in Nashville and if he heard anything of interest to call Sheridan.”

To use Partin’s words on that conference on October 20th in Nashville with immaterial omissions, Grimsley “instructed me to discover or to turn in evidence that would substantiate a violation of the law or jury tampering or something like that.”

And Partin to use his own word for it know that in Nashville he was to observe, this is his word for evidence of illegal activities and as — again as Partin himself puts it when and before he got to Nashville to the opening day of the Test Fleet defense, “I knew what I was looking for.”

When Partin was ready to leave Baton Rouge to go to Nashville for his meeting with petitioner Hoffa on October 22nd, he called Grimsley to advise him of this.

On his actual way to Nashville from Baton Rouge when changing planes at Atlanta, he called Grimsley to tell him that he was on his way and on his arrival in Nashville, on October 22nd, Partin called Sheridan to tell him, “I am here.”

The Government disputes this little fact, but record references 993 and 781 very surely substantiate it.

Now, the Government took many precautions to hide Partin’s identity as a secret agent.

At the very outset of the Test Fleet trial on Partin’s arrival in Nashville, Sheridan instructed Partin on how to communicate with him in order to make his reports to Sheridan.

Partin was assigned with a codename of Andy or Anderson and Sheridan used the codename John Black.

For detailed reports other than reports by telephone, Sheridan was to pick up and deliver Partin on the street away from the Andrew Jackson Hotel where Partin stated and where petitioner Hoffa occupied the hotel suite which served both as his home and as his defense headquarters throughout the Test Fleet trial.

These arrangements made by Sheridan with Partin at the outset of the Test Fleet trial held throughout the trial as Partin met with Sheridan usually in his automobile, sometimes in Sheridan’s Nashville apartment but through the back door and once in a (Inaudible).

According to Partin’s long distance call arrangements with Hoffa, petitioner Hoffa, he was to be in Nashville to meet with the petitioner on one day October 22, to discuss his personal problems but Partin stayed in Nashville over some eight weeks for most of the trial days in the Test Fleet case which started as I have stated October 22nd and ended in December.

To do this, Partin made 11 round trip plane tickets, plane trips from Baton Rouge to Nashville.

He’s getting evidence and reporting it to Sheridan was admittedly on this record a factor in the process by which his trip to Nashville for a meeting with petitioner Hoffa of one day became 11 trips to Nashville in a period of some eight weeks.

[Inaudible]

Joseph A. Fanelli:

Well, that comes to the question Your Honor of whether compensation was paid to Partin by the Government which I will reach in detail in a moment.

There are some disputes between it.

I should say in candor at the same time Mr. Justice Harlan that it does appear in the record.

I don’t know what the trip’s cost but it does appear in the record that he was drawing union salary during this time as a local union official, Teamster union official in Baton Rouge.

Hugo L. Black:

But he — was he an official in a local Teamster union at the time?

Joseph A. Fanelli:

In Baton Rouge, Lousiana, yes sir.

Earl Warren:

And there’s nothing in the record to show who paid for these trips to Baton Rouge?

Joseph A. Fanelli:

Well, let —

Earl Warren:

No, if it will disturb the order of your argument, you go right ahead (Voice Overlap) —

Joseph A. Fanelli:

I would — I would say that there’s subquestion about it on this record and I will go into it in detail —

Earl Warren:

Sorry.

Joseph A. Fanelli:

— Mr. Chief Justice.

Earl Warren:

(Voice Overlap), in your own way.

Joseph A. Fanelli:

Now, petitioner Hoffa and his Test Fleet defense counsel live in the Andrew Jackson Hotel throughout the Test Fleet trial.

Petitioner Hoffa’s suite served as I have stated both as his home and as the home in which in conjunction with this counsel he was preparing and carrying on his defense in the Test Fleet criminal prosecution.

In petitioner Hoffa’s suite, his counsel conferred with him as to his defense, they interviewed prospective witnesses.

They prepared for the examination and cross examination of witnesses.

They discussed questions of law, and at the end of each day a process with which all of us lawyers if I may so Mr. Chief Justice are familiar.

They consider into the night what would be the trial strategy for the next day.

With one minor exception when Partin was unable to get a room on one of his 11 round trips to Nashville when he was unable to get a room at the Andrew Jackson Hotel with that one exception, Partin also stayed at the Andrew Jackson Hotel throughout the trial days of the Test Fleet trial.

On his first day in Nashville, Partin went to petitioner Hoffa’s suite and thereafter he was constantly hanging around that suite.

In the suite, he got people ashtrays, he moved chairs in the suite for the participants discussing their defense and he acted as doorman to the suite, sitting on occasion, outside, just outside the suite and on occasion just inside the suite.

He even went so far has to deliver the morning newspapers, the early morning newspapers.

According to Partin himself, when he was acting as doorman, petitioner Hoffa “would tell me a lot of things that didn’t pertain to the jury.”

With defense counsel in court everyday in the course of the Test Fleet defense, Partin was there everyday too.

He ate with petitioner Hoffa and his counsel and went to — back and forth from meals in the courthouse with petitioner Hoffa and his counsel.

In some as the detailed facts show and there’s six counsel who participated in the Test Fleet defense testified and we say without contradiction in this record the Government says there was a contradiction but at Partin’s testimony as examined he never squarely denies any of this.

He doesn’t remember.

He wasn’t interested.

He has no recollection.

As these six attorneys testified, Partin had an access to the defense counsel and Partin participated in and associated with defense counsel when defense matters and defense strategy were under discussion.

The record is replete with examples.

Partin was present when defense counsel interviewed a number of prospective witnesses in the Test Fleet case.

He helped assemble typewritten statements of their testimony, of their expected testimony as Sheridan explicitly admitted he told Sheridan about it and as the record sufficiently indicates Sheridan told the Government prosecutor, the man actually on the floor handling the Government’s case in the Test Fleet.

Partin discussed the selection of the jury with petitioner Hoffa and heard counsel, discussed it and in this connection reported to Sheridan that the defense was investigating the prospective (Inaudible) on the jury.

He heard one of defense counsel criticizing other defense counsel as to what they were doing wrong in the case and what should be done in correction.

He was present when the questions for jury voir dire were distributed amongst counsel and on three separate occasions may it please the Court, he interrogated defense counsel on what — on various aspects of trial strategy in the Test Fleet defense.

Joseph A. Fanelli:

Partin himself volunteers that he,”infiltrated” petitioner Hoffa and his counsel.

As a result of the Partin infiltration of the Test Fleet defense, Partin without question got some defense information which he passed on to Sheridan in the course of his daily reports to Sheridan.

Now, at this point I might take a moment to state, may it please the Court that there is some difference between the Government and us as to how much defense information he passed on to Sheridan.

Although the Government argues at first for getting when they do get on the subject, they have to admit that there was some defense information passed on to Sheridan.

With all of these going on, may it please the Court, Test Fleet defense counsel I mean with all of these going on, Partin and the petitioner Hoffa’s headquarters telling Sheridan what’s taking place there at the defense counsel, the defense counsel’s consultations.

With all of these going on may it please the Court, Test Fleet defense counsel suspected some sort of Government surveillance of the Test Fleet defense whether by wire tapping or otherwise.

And as early as November 1, 1962, just nine days after this trial had begun they complained to the trial judge in Test Fleet.

The Government flatly denied surveillance of any shape, type or form.

The judge admonished the Government, this is at the Test Fleet trial court judge and I quote his admonition, “Certainly, the defendant is entitled to privacy in dealing with his own counsel and in communicating with his own counsel.”

That right will be respected.

May it please the Court, the Government did not come forward at that time to say to the trial court judge as they now in substance say in their brief, your Honor, we have Government secret agent Partin in and around the Test Fleet defense and we know that that risked a Sixth Amendment violation of his right to the effect of assistance of counsel but Your Honor we are going to leave him there nevertheless because we think this is the way to protect the integrity of the jury.

While in Nashville, Partin reported to Sheridan on a daily basis and from time to time, he also reported to Grimsley by telephone.

Neither Sheridan nor Grimsley ever gave Partin any definition or detail on what is jury tampering or witness intimidation or other illegal activity or anything of interest, the evidence he was to look for in Nashville and neither Sheridan nor Grimsley ever told Partin to keep away from the Test Fleet defense counsels and stop reporting Test Fleet defense information to Sheridan.

So to use of Partin’s own words, he reported “anything that I would have seen.”

Hence, Partin’s reports to Sheridan on the results of his activities in the midst of the Test Fleet defense covered two types of information.

One, Test Fleet defense information, and two the admissions of jury tampering which he claims to have heard or overheard from petitioners Hoffa and King.

Now, while Partin was carrying on this job, this course of conduct as the Government secret agent in Nashville from the very opening day of the Test Fleet trial to its very end, he was at the same time as the Government’s secret informer and agent reporting to the Government on a matter or a bribe of a completely unrelated Government official and an official of National Labors Relations Board.

And after the Test Fleet trial was over and when the grand jury inquiry in respect to this proceeding was in progress, Partin as he testified in the trial below reported to Sheridan that one of petitioner Hoffa counsel was advising all prospective grand jury witnesses to claim the Fifth Amendment and giving them a form for the purpose.

It is a fair indeed in our view inescapable inference from this record that Partin in carrying on his work as the Government’s secret agent did exactly what the Government told them to do no more and no less.

At page 701 of the record, Partin says that he did not keep notes of the time, dates and places of the alleged incriminating admissions to which he testified because Sheridan did not tell him to.

At page 778 of the record, Partin says that he can precisely remember the claimed incriminating admissions and not remember any help discussions amongst counsel of jury selection because it was jury tampering that Sheridan told him to remember.

And at page 1011 of the record, Partin revealingly says in connection with his relationship to Grimsley and to Sheridan, “I figured that they knew well enough what they were doing if it was suggested or even hit it I would have done what they said do, now I would have some syntactical difficulty,” but the “they” there in its context is Sheridan and Grimsley.

I come to the matter that bears upon the question you asked a few minutes ago Mr. Chief Justice the matter of compensation to Partin for his work as a Government agent.

It is the fact in this proceeding that today in the fall of 1966, Partin has never been tried on any of the criminal charges he faced in late September 1962.

Now, the problem that offers a number of explanations for each of these and why it wasn’t tried in our view, we think it may well be a case that the lady does protest too much.

It is the further fact that the Department of Justice paid Partin’s wife a monthly sum of $300.00 for a total of $1200 in the period after the Test Fleet defense, after the close of the Test Fleet trial and before the beginning of this proceeding.

These sums were in exactly the same monthly amounts as Partin was required by court order to pay to his wife for the support of his children.

By written order of Mr. Sheridan in the Department of Justice the sums involved were paid out of a confidential fund by check to Mr. Grimsley, Mr. Grimsley then cashed those checks bought cashier’s checks and sent them to Mrs. Grimsley without showing in any way the identity of its sender.

Did I — to Mrs. Partin, sent them to Mrs. Partin.

Did I say Mrs. Grimsley?

Joseph A. Fanelli:

It was a slip of the tongue.

Grimsley sent these cashier’s checks to Mrs. Partin.

Now, the Government says and let me interpolate there is no question about the facts I have just stated upon this record.

But the Government says that these payments in behalf Partin to his wife were made for expenses that he incurred not in connection with the plane trips that you were inquiring about Mr. Chief Justice but in connection with other trips that he made to various cities in the country to consult with Department of Justice counsel in connection with the preparation of his testimony in this proceeding.

But Partin never submitted a statement, voucher or bill for any of these claimed trips and it is interesting to note in connection with the subject that I touched upon a moment ago that the reason he did not do so is that Sheridan didn’t tell him to do this.

And secondly, Grimsley although he tried and he made an affidavit I think it appears in this record sufficiently indicated its original form in the record, he had about a half sheet of paper and he tried to relate these monthly payments to what the trips might have cost.

He finally admitted that he was unable to do this and that the sums paid to Mrs. Partin was set in exact accordance with the amounts that Partin owed her for the support of his children on the court order.

And finally in this connection, on the matter of compensation of Partin, Grimsley unguardedly states in another connection that some of these trips claimed by the Government as the basis of the payments to Partin to consult with counsel in preparation of his testimony in this proceeding had nothing to do with this proceeding.

Hugo L. Black:

Was there evidence of any other received by the local union in Louisiana?

Joseph A. Fanelli:

Well, just what I said a few minutes ago I think Mr. Justice Harlan as I recall a record in this case, it is the fact that he was withdrawing salary from here.

Hugo L. Black:

So, there’s any —

Joseph A. Fanelli:

Evidence that they were paying his expenses?

Tom C. Clark:

Yes.

Joseph A. Fanelli:

None that I know of.

Hugo L. Black:

None was offered.

Joseph A. Fanelli:

I’m sorry.

Hugo L. Black:

No evidence was offered on that.

Joseph A. Fanelli:

There is no evidence on that precise point of whether he was paid by the union for these trips.

Hugo L. Black:

But as here —

Joseph A. Fanelli:

As I recall —

Hugo L. Black:

Any other in the record, how much he was paid by the union during that time?

Joseph A. Fanelli:

I don’t think so.

He was drawing his regular salary.

Hugo L. Black:

What was that?

Joseph A. Fanelli:

I’m not sure of that.

That is — I don’t think the record shows that Mr. Justice.

He was drawing whatever he usually drew from the union.

We would say on the basis of the facts that I have just summarized, on the facts as to compensation that rather clearly Partin was paid by the Government both by way of these checks to his wife and by way of — to put it at its mildest, easy treatment on the criminal charges that were pending against him, but our basic contention is that this question isn’t very material to this case because the fact remains whether he was paid or not that Partin was the Government secret agent before he got to Nashville and remained the Government’s hard working and complaisant secret agent throughout the Test Fleet defense.

I have taken considerable time, may it please the Court to state these facts at length in detail and in their full color and one of the reasons that I have done so is that the writers of the Government’s brief in relation to the facts of this case tend to close their eyes, shut their ears, do something like this and argue this case as if Partin with no prior connection with the Government as a private visitor in petitioner Hoffa’s home is entrusted with confidences as to jury tampering and as a good citizen reports them to the Government but that is not this case.

Here, no matter how minor conflicts in the evidence may be resolved or not resolved at all, the basic set of facts are clear, Partin contracted with Grimsley in Atlanta on October 20th before the opening of the Test Fleet trial to look for jury tampering in Nashville.

Joseph A. Fanelli:

He repeatedly looked for evidence of jury tampering in Nashville.

He repeatedly looked for such evidence in petitioner Hoffa’s home and in the same place petitioner Hoffa’s defense headquarters and according to his own testimony he there heard or overheard much of what he was looking.

Now, Partin did not tell petitioners Hoffa or King that he was acting for the Government throughout the Test Fleet trial.

As Partin puts it, he did not so tell them, “because if they wasn’t violating the law they shouldn’t care.”

This is Partin’s view of the protection of the Fourth and Sixth Amendments.

Admittedly however, there was so explicit statement in the Government’s brief that it is the Government’s view too.

Now, petitioner Hoffa did not assume that a private visitor to his home would reveal a confidence as to illegal activity to the Government as a good citizen what Partin.

I’m sorry, what petitioner Hoffa assumed was that there was no policeman in his home unless he appeared at the door with a warrant and announced his police identity and purpose.

This brings us may it please the Court to our argument on the Fourth Amendment.

The admissions which Partin claims to have gotten from petitioners Hoffa and King are set forth in detail at pages 14 to 18 of our main brief.

So far as the Fourth Amendment is concerned, the following plain facts are important as to these claim admissions.

First, any single one of them would have been seriously prejudicial to the petitioners, second, some of them who have gotten by Partin in petitioner Hoffa’s suite.

These were the objective and direct result of Partin’s repeated entries into that suite as a Government secret agent on October 22nd, the opening day of the Test Fleet trial and on that day, two entries, on October 23rd, October 25th, October 26th, October 29th, November 7th, November 14th, two entries, November 15th and November 20th, a total of 11 distinct and separate entries into their home suite in a period of four weeks.

Third, on all of these entries, Partin as a secret government agent was looking for evidence.

Fourth, on all of these entries, Partin as the Government secret agent was looking for evidence of nothing more definite that witness intimidation, jury tampering or other illegal activities.

Fifth, for none of these entries did Partin have a warrant of any sort.

And sixth, throughout of course of all of these petitioner Hoffa’s home, petitioner Hoffa in that home was preparing his defense of the Test Fleet charges in conjunction with his counsel so that these entries in violation of the Fourth Amendment as we claimed were part of a continuous process of a pervasive intrusion on the Test Fleet defense by the Government through the Sheridan-Partin operation.

(Inaudible)

Joseph A. Fanelli:

No he did not.

(Inaudible)

Joseph A. Fanelli:

Not on this record.

But I would like to comment on that question if I may Mr. Justice Harlan that Partin — I’m sorry petitioner Hoffa was never in a position to object to the entries of a Government agent because he was never told of that identity.

In other words, there was no understanding of intelligible facts, no intelligible way of conduct.

Now all of Partin’s entry in petitioner Hoffa’s suite were unreasonable and violated the Fourth Amendment because they were entries made without a warrant of any sort into a man’s home to make general searches for evidences.

As I remark before, the Government does not really deny this and I will come in a moment to what their position is.

Indeed, the Government as we think it must see the authority cited at pages 36 and 37 of our brief, explicitly concedes that for purposes of the Fourth Amendment, a Government entry into a home without warrant by deception of the Government’s identity is as much a violation —

Earl Warren:

Finish your sentence Mr. Fanelli.

Joseph A. Fanelli:

Of the — I was wondering about the slightest — the recess —

Earl Warren:

It’s alright.

Finish your sentence.

Joseph A. Fanelli:

— is as much a violation of the Fourth Amendment as a — as such a Government entry into a home by force.

Earl Warren:

We’ll recess now.

Joseph A. Fanelli:

I would like to elucidate my answer further to Mr. Justice Black’s question about whether the union was paying for these trips to Nashville and apparently to state to the record on that Mr. Justices that Partin does state at one point that the union was paying his salary and expenses at the time of these trips to Nashville.

He also testifies at another point that there were many long periods when the union did not pay him at all.

Now, the union that you’re speaking about Mr. Justice Black is his local union in Baton Rouge.

Hugo L. Black:

The Local Teamster union?

Joseph A. Fanelli:

It’s a Local Teamsters union however, so far as the union did pay him salary and expenses on these 11 trips to Nashville, this would not be Mr. Hoffa of course personally paying it and also Mr. Hoffa as general president of the Teamster International Union would have nothing whatsoever to do with whether the local union paid him or didn’t pay him or how much paid him or anything else.

Mr. Justice Harlan there’s nothing like a luncheon recess and in a little further (Inaudible) of a question you asked me as to whether Partin ever took anything out of the suite.

I had understood that in the context of whether any of the evidence of Partin’s documentary evidence rather than incriminating admissions and hence that Your Honor know.

But if one removes it from that context, he did take some defense exhibits on which he had done some minor clerical work and took them to the printer as part of his activities in his role of defense fact (Inaudible), also —

(Inaudible)

Joseph A. Fanelli:

Not — there’s nothing in the record that these particular exhibits were given to the Government.

Of course, since the Government does — did not introduced any documentary evidence because that would have removed any legal question out of this case because of Gouled.

Hugo L. Black:

Because of what?

Joseph A. Fanelli:

Because of Gouled where there was a fraudulent entry, a deceptive entry by a Government, a secret government agent into this man’s office and documents were taken.

Only God would know, I suppose, how many and maybe the Government how much it might have taken by way of documents.

But I think also pertinent to your question Mr. Justice Harlan, is the fact that the 11 entries that I have enumerated and detailed were the 11 entries that produced the incriminating statements to which he testified but he was there on 33 days, 33 trial days of the Test Fleet case.

He was constantly hanging around in the suite and he was that time in that suite when neither petitioner Hoffa nor petitioner King was there but there was no evidence that at time he took any documents.

Now, to get on with where I was in my argument, I had just stated that the Government concedes as we believe it must in accordance with the authority cited at pages 36 and 37 that an entry into a man’s home by deception to look for evidence without a warrant is as violative of the Constitution of the Fourth Amendment as such an entry made by force.

And further the Government concedes as it must because of Wong Sun against United States, 371 U.S. 471 that the Fourth Amendment protects not only against documents and other concrete things but against verbal statements.

These Government concessions made in accordance with the authorities, it seems to us to dispose of the Fourth Amendment contention in our favor.

Decision here in our favor is controlled by Gouled against the united States in the 255 Volume of this Court’s reports at page 98 and Go-Bart and the decision of this Court Go-Bart Importing Company against the United States in the 282nd Volume of the official reports in this Court at page 344 for the only difference of substance between Gouled and Go-Bart on the one hand and this case on the other is that in Gouled and Go-Bart, the deceptive entry obtained incriminating documents and in this case, the Government’s deceptive entry obtained incriminating statements and so far as that difference is concerned we say that Wong Sun makes that difference immaterial.

But the Government says and now I come to what it is they are really argue Mr. Justice Harlan but the Government says that Gouled and Go-Bart Importing Company would be controlling here if and only if Partin having achieved entry into the Government suite by deception had heard the alleged incriminating statements by eavesdropping.

Now, it is the fact in this record may it please the Court that several of the alleged incriminating statements were eavesdropped, they were overheard by petition — by Partin from petitioners Hoffa and King.

However, in a further sniffing off of Fourth Amendment protections to tailor that Fourth Amendment so that this case falls outside of it, the Government says further that for Fourth Amendment protection, not only must Partin have been eavesdropping overhearing but in addition he must have been hiding as in a closet or it may be in a toilet.

Analyze says the Government and Your Honors got an information of this in Mr. Lewin’s argument in the case preceding this, the statements, the alleged incriminating statements could just as well have been made on the street and so they are outside Fourth Amendment protection.

This is the Government’s position and its argument and to state it is almost to answer it.

In its major aspects as we all know, the fourth Amendment is precisely directed to the protection of the privacy of particular areas and especially may it please the Court the privacy of a man’s home.

As Judge Frank put it in his opinion in the Second Circuit in the On Lee case quoted with approval by this Court later, a man’s home, “the inviolate place which is a man’s castle.”

The full quotation from Mr. — from Judge Frank’s description of the privacy of a home as a sizable hunk of liberty may it please Court worth protecting from encroachment is set forth at page 33 in the footnote of our brief.

Joseph A. Fanelli:

The alleged incriminating statements in this case Your Honors were not made in the street.

They were made in petitioner Hoffa’s home.

Partin, the Government’s secret agent got into that home by 11 entries in violation of the Sixth Amendment — of the Fourth Amendment I beg your pardon.

The statements allegedly obtained by Partin cannot be separated from those illegal entries for they were the very objective of those entries and their immediate product.

No amount of finespun the Government theorizing to meet the facts of this case can change or eliminate those simple and immutable facts.

Further more may it please the Court, it makes no sense to say that Partin entered petitioner Hoffa’s suite by deception in violation of the Fourth Amendment but somehow left that Fourth Amendment lying here by the door when he immediately continued in the same deception in talking with petitioners Hoffa and King.

And may it —

(Inaudible)

Joseph A. Fanelli:

I’m sorry Mr. Justice.

Suppose the Government (Inaudible).

Joseph A. Fanelli:

Well, Mr. Justice Harlan, I want to be absolutely sure just what it is you were asking.

If you are saying to me as I understand it —

[Inaudible]

Joseph A. Fanelli:

That is with no previous connection.

I would put it this way that obviously it is not this case and I need not make that comment that a decision in our favor in this case would not control a decision upon those facts.

I think that it would present a much more doubtful question of Fourth Amendment violation but I would say in my view and I would be prepared to argue without a representative of the petitioner in such a case that it is indeed a violation of Fourth Amendment but that’s just my opinion.

But that is not this case.

Tom C. Clark:

(Inaudible)

Joseph A. Fanelli:

Pardon me.

Tom C. Clark:

(Inaudible)

Joseph A. Fanelli:

Not on those precise facts Mr. Justice Clark.

It makes no sense at all may it please the Court to say that the Fourth Amendment protects the householder against a policeman hiding in a closet but not against the policeman who is hiding under his role of helping you in your defense of a criminal trial.

In both cases above all things the Fourth Amendment protects the privacy of the home be it ever so humble or be it a hotel suite.

In both cases, no matter where that policeman or how that policeman is hiding, the Government is secretly in the home eavesdropping, listening in on all conversations.

Surely Your Honors in the light of centuries of American and Anglo-Saxon history and remembering Lord Chatham’s noble statement that the king’s men cannot without warrant enter the cottage of the poorest villager and considering for a moment what it is about the police state that we oppose it throughout the world.

We cannot rationally believe that our forefathers in adopting the Fourth Amendment and the members of this Court in applying that amendment for almost 200 years ever contemplated that the Government secret listening in on the home conversations of a free people would ever be permissible under the Fourth Amendment.

In reliance on an invalid eavesdropping theory, the Government sees no differences between this case, the Lopez case, the On Lee case and the Lewis case which follows our case upon the argument calendar.

But On Lee unlike this case did not involve an area protected under the Fourth Amendment and Lopez unlike this case did not involve a government secret agent.

In both Lopez and Lewis the petitioner invited the government agent to his home or office for the very purpose of the transaction that took place, the offer of a bribe in Lopez and the sale of narcotics in Lewis.

Here petitioner did not invite Partin to his suite to bribe them as a juror and influence him as a juror.

Joseph A. Fanelli:

Partin of course was not a juror or perspective juror and Hoffa in fact made no such offer or attempt to influence in relation to Partin.

Petitioner Hoffa did not invite Partin.

Partin invited himself by those telephone conversations on October 8th and 18th recorded by the state officials with reporting going to Grimsley and Sheridan.

Partin invited himself and spied on petitioner Hoffa.

So far as petitioner permitted Partin in his home suite in the place where he was preparing his defense the permission was solely for the union colleague and defense Hoffa.

Unlike On Lee, unlike Lopez, unlike Lewis and unlike any other case presented to this Court under the Fourth Amendment in all its history this case presents particular facts and circumstances strongly called for Fourth Amendment protection.

I enumerate them.

Here, it is not only that the Government violated the privacy of a citizen’s home but that the Government arranged for that violation before there was even a possibility that a crime had been committed.

Here, it is not only that the Government violated the privacy of a citizen’s home and arranged for that violation before a crime could possibly ever been committed, but it violated that home privacy not once, not for just one conversation as my colleague was arguing earlier this morning but many times and over a protracted period.

And finally in this case, the Government’s repeated and protracted violations of the Fourth Amendment were directed against the man on trial for his liberty and preparing his defense in his home so that inevitably these violations of the Fourth Amendment were part of a Government pervasive intrusion on his defense in violation of the Sixth Amendment and that brings us to our Sixth Amendment argument.

Our contention on the Sixth Amendment concerns the very heart of the Sixth Amendment guarantee, the right of a man on trial for his life or liberty to have the effective assistance of counsel free from any Government intrusion upon that defense.

The Government at least at some points in this brief agrees with that statement of what the right is.

But the Government purports seriously to argue that Partin did not intrude upon the Test Fleet defense.

It would be a sufficient answer may it please the Court to note that Sheridan admitted that some Test Fleet trial information, defense information was passed on to him and for that to happen there had to be an intrusion.

In any event, without repeating all the details that I stated this morning the intrusion can be summed up follows.

Partin carrying out his government job of looking for evidence of jury tampering naturally sought that evidence in the counsels of the Test Fleet defense.

Partin’s ostensible purpose of discussing his personal affairs with petitioner Hoffa in Nashville on October 22nd wouldn’t serve as a cover for petitioner Hoffa staying Nashville for the purpose of looking for evidence of illegal jury tampering.

Some better cover was needed so Partin became a defense helper, this would keep him in and around petitioner Hoffa and his counsel throughout the trial.

As a defense helper, Partin was in the midst of defense preparations, consultations and talks everywhere in petitioner Hoffa’s suite, defense headquarters, at the courthouse, at meals and going to and from the courthouses and meal and Partin state in the midst of the Test Fleet’s defense throughout the Test Fleet trial and he did so with the Government’s continuing approval for he reported to Sheridan daily and he did so to the Government’s continuing profit for besides the admissions of jury tampering the Government obtained and used Test Fleet defense information.

Thus the Government in obvious disregard of the Sixth Amendment right to counsel perpetrated not just an intrusion but a pervasive infiltration of that defense.

With the Government’s violation of the Sixth Amendment apparent, the aspect of the Sixth Amendment question left is whether the incriminating statements were tainted by that Sixth Amendment violation, if so all parties are aggrieved that they were in admissible in the trial below and aggrieved in accordance with the authority stated in our brief.

Partin admits that counsel was sometimes close but not in on the conversations in which he heard or overhead the incriminating statements.

The admission serves to emphasize the fact of a single line of action by one man Partin designed to secure evidence of jury tampering by Partin’s acting as a defense assistant.

A Sixth Amendment violation deliberately risked by Sheridan as the Government admits in its brief.

The primary product of that violation was the very objective sought by that violation, Partin’s evidence of jury tampering.

The bonus was Test Fleet defense information, both primary product and bonus were obtained by one man in one continuous process carried on in the same places over the same period of time and reported daily to Sheridan in the same reports.

To separate product and bonus in these circumstances would be to treat the Sixth Amendment as a thing of water, a faucet to be turned on and off as Partin moved from one part of defense headquarters to another.

In any event, as follows a fortiori from comparable cases decided by this Court, we cite them in our brief at page 48, footnote 2, the primary objective and the very product of a Sixth Amendment violation of any constitutional violation cannot be separated from that violation for in those circumstances, we have much more than the take which connects for an indirect connection evidence with a constitutional violation.

I turn to our argument on due process.

To the question of whether petitioners were afforded the essential fairness required by the Fifth Amendment.

Joseph A. Fanelli:

A secret informer may it please the Court seems an unlovely thing to anyone.

Yet we recognize that there are constitutional uses of government informers.

We rely on much more than the evil of a secret government informer in this proceeding.

The use of a Government informer, a secret informer always risks perjury but that risk was at its highest here in view of the charges pending against Partin and in view of his natural desire to justify the payments to his wife no matter for what those payments were made.

As (Inaudible) teaches, Your Honors decision in that case, the risk of perjury in a government secret informer’s testimony may be so great as in and of itself to invalidate a conviction.

But there was more here than the strong risk of perjury to condemn the convictions here.

The Government unquestionably ignored Sixth Amendment rights in relation to the Test Fleet defense unquestionably in our opinion on this record.

But putting aside our other legal protections, the Government’s conduct was at a minimum within the penumbra of practically every Fourth Amendment guarantee of Sixth Amendment rights to counsel in this proceeding, of Fifth Amendment rights to self incrimination in this proceeding.

Whatever the legal consequences of the Government’s action separately considered under each amendment may be, the Government did invade the privacy of the man’s home.

Did infiltrate the counsels of this defense and did deprive him of the opportunity to consult counsel and to remain silent.

Finally, as the Government does not contest it had probable cause for arrest and charge on — and charge on jury tampering on October 25th.

On that day, legitimate law enforcement call for arrest and charge with a fair trial to follow.

By deferring arrest and charge, and the Fifth and Sixth Amendment rights attended upon such arrest and charge as recently explicated by this Court in this term, the Government effectively nullified those rights secured many more incriminating admissions and rendered petitioner’s trial a near formality.

That is the whole of the Government’s conduct which we say is offensive to due process case up here.

In conclusion on the whole case we observe that the Government offers extraneous reasons to explain its conduct in this case but we stand here on the requirements of the Constitution as the court observed in United States against (Inaudible), the Constitution is designed to place obstacles in the way of a two permeating police surveillance.

Partin surveillance in behalf of the Government in this case was so permeating as to short circuit the productive protective power of practically every constitutional safeguard on the enforcement of the criminal laws.

We respectfully submit that on the well settled principles of constitutional law, the facts here show that the statements were inadmissible.

All petitioners were prejudiced by those statements which the jury was permitted to consider against all of them as one organic tissue of proof following denial of their motions to severance.

All of their convictions should be reversed.

Whatever remaining time may the Court please, I reserve for rebuttal.

Thank you very much.

Earl Warren:

Mr. Vinson.

Mr. Attorney General, may it please the Court.

This case involves the constitutional propriety of conviction of four petitioners charged with violating the obstruction of justice statute by jury tampering.

The jury tampering activities disclosed by the record occurred at a trial at which defendant Hoffa was the only defendant.

This case and others set immediately preceding and immediately following have very broad implications bearing upon the use by law enforcement of an investigative technique, law enforcements has always found to be important at the use of informants.

Before summarizing the facts, I would call your attention to the limited order of the court in granting certiorari.

In doing this of course, the court acted in accordance with its practice and phrased the question as presented by petitioner.

There the question referred to the Government’s deceptively placing a secret informer with defendant.

The Government’s position amply borne out in the record and by the court’s findings is simply that it did not place the informant anywhere deceptively or otherwise.

I would also at this point like to clear up several matters that counsel referred to concessions made by the Government.

The Government does not concede that even if the facts proved as the question is posed were true that petitioners would prevail in this cause.

Secondly, in response to questions from Justices Harlan and Stewart earlier this morning, counsel for petitioners seems to state that the Government had conceded that there had been an illegal entry in this case.

There has been no such concession.

In addition, on page 9 of petitioner’s reply brief, there’s another concession improperly made or improperly attributed to the Government.

The reply brief says that the Government explicitly admits that the Sixth Amendment is violated by the Government’s very presence in the protected counsels of the petitioners.

The Government makes no such concession.

The facts —

Earl Warren:

Do you argue the contrary?

We think the facts indicate the contrary and we do argue the legal point of the contrary, yes Mr. Chief Justice.

The facts in the case can best be understood when they are broken down into two parts.

The occurrences which preceded the Nashville trial, that’s the trial at the Test Fleet case where the jury tampering took place and secondly the occurrences during that trial which led to the charges in the Chattanooga case which is before the Court.

Now, you’ve heard many inferences drawn by able counsel for the petitioner with respect to the facts.

I think in connection with the facts it would be helpful to start off on page 58 of the Government’s brief with the trial court’s findings.

Now, these were findings that the conclusion of the initial hearing on the motion to suppress Partin’s testimony.

The Court said that it is of the opinion that the motion to suppress should be overruled having observed the manner and demeanor of the witness on the witness stand and the testimony of the witnesses, I would find that there has been interference with the Government with any attorney-client relationship of any defendant in this case.

I would further find that the Government did not place this witness Mr. Partin in the defendant’s midst or have anything to do with placing him in their midst rather that he was knowingly and voluntarily placed in their midst by one of the defendants.

Potter Stewart:

Defense in it — the — at that time did the judge have the time — all of the facts which now have been now unearth?

He did not Mr. Justice.

However, he amplified these findings in denying motions for a new trial when the whole panoply of evidence was in.

He felt necessary to do this in light of the petitioner’s contentions that evidence subsequently introduced, introduced after the motion to suppress affected these findings.

Now, in answer to this, the trial judge stated that the additional evidence in no way altered the Court’s finding that the Government did not place or keep Partin with the defendant Hoffa nor does it relate to or alter the Court’s finding that there was no illegal interference with defendant Hoffa’s right to counsel.

Now, in this memorandum, the denial of the new trial where the previous findings were amplified, a court further found one, that Partin remained in Nashville or returned to Nashville either at the request of or with the consent of defendant Hoffa and not at the instruction of the Government.

Secondly, that the Government requested of Partin only that he report information of jury tampering or other illegal activity of which he became aware.

And third that Partin furnished such information.

Now, these findings are amply supported by the record.

But finally the court held that the presence of Partin during the course of the Nashville trial, the Test Fleet trial and the reporting of information by him at that time did not in any way relate to the rights of the defendants, the petitioners here In the preparation and trial of the Chattanooga case.

Now, in the face of these findings I don’t think the inferences that either counsel for the petitioner or counsel for the Government to draw or particularly important.

However, in view of the due process argument I think its incumbent on the Government to respond to — certain of the inferences drawn to the facts.

Now, in 1962 the time of the National Test Fleet trial, Edward Partin as we’ve heard was an official of Local No. 5 of the Teamsters Union in Baton Rouge, Louisiana.

Since 1957 he had been a close associate of petitioner Hoffa.

It’s true that in late September 1962 Partin was in a state jail in Louisiana on a kidnapping charge.

This charge arose from a family dispute in which Partin assisted his best friend, a father in taking his children away from his estranged wife and kidnapping in Louisiana is an unbailable offense until the victim is returned unharmed.

At that time, the children had not been returned.

At the same time Partin was on bail on a federal charge, a violation of labor management purporting in disclosure act.

Now, still in late September, Partin met twice with state prosecutors on successive days.

At these meetings as counsel has stated, he related to these state officials an alleged plan by petitioner Hoffa to murder Robert Kennedy who was then Attorney General of the United States.

The local officials reported this matter to the FBI and at their suggestion he reported on to an Assistant United States Attorney in New Orleans.

The assistant then called Frank Grimsley whom you’ve already heard, a Department of Justice attorney who in turn called Walter Sheridan.

Now, the substance of these calls was and this is the first contact of the federal establishment with this man and this context.

The substance of these calls was that Partin wished to speak to a representative of the department about a gray matter involving security.

Now there resulted two meetings to between Partin and two state officials and two federal officials.

At the first of these on October 2 or October 3, the record is not clear, Partin repeated his allegation about this alleged plan to murder the attorney general.

The testimony is that if Hoffa’s impending national trial was mentioned at all, it was by way of a casual remark.

Several days later, a second meeting took place between the same people except for one state official who was missing and it was not clear what was discussed at this meeting.

The record is silent.

The Assistant United States Attorney who was present however testified that he — as to this meeting he couldn’t recall whether Hoffa’s name came up at all.

It’s also not clear whether Partin was in jail at this time because by then the children had been returned to their mother and the offense then became bailable.

Now —

Hugo L. Black:

What was Grimsley’s inside — position with the Government?

He was an attorney on the criminal division of the Department of Justice.

Hugo L. Black:

Located in Atlanta.

He was at a headquartered generally in Atlanta.

I understand as his primary responsibility was in that southeastern area, New Orleans, Georgia.

Hugo L. Black:

He was not located in Washington?

No sir.

He may have spent a substantial amount of time here but he’s also I think it could fairly be said to be headquartered in Atlanta.

John Paul Stevens:

(Inaudible)

I understand that he handled generally organized crime and labor racketeering matters.

Now, in the meantime, it’s now been several days since news of — was given to the federal establishment about an alleged murder attempt or plan.

The FBI was conducting an investigation.

This investigation included examinations of Partin by polygraph and the polygraph expert concluded that the test lent support to Partin’s allegation.

Now, at about this same point in time, one difficulty with the facts here as if we have a months period of time when there is a whole lot churning and a lot of happening and a lot separate interests coalescing but about this same point in time October 6, Partin’s federal bond was cancelled by a bonding company.

This was a $50,000.00 bond and Partin had to go to local friends to help him put up a new bond.

Now, the bonding company which canceled was a business interest of Allen Dorfman who was a close associate and friend of petitioner Hoffa’s and later he was a codefendant in the Chattanooga trial.

He was acquitted.

Now, Hoffa had helped get this bond from Dorfman so Partin suspected that petitioner Hoffa may have had something to do with the cancellation and he wanted to talk to him about it and find out really if and why.

Now, also about this time around October 6, 1962, a state official and Partin moved into a motel in Baton Rouge.

This — there was some testimony to the effect that this was for the purpose of corroborating information that Partin had been reporting to him, the state official, the state district attorney since late September and in this connection for this purpose the state district attorney testified that he instructed Partin in the use of a recording device and that Partin recorded between 80 and a hundred telephone calls in this four day period and in a subsequent three day period now only two of these recorded calls were with petitioner Hoffa.

And the defense introduced the transcripts of those calls into evidence.

Now, this recording equipment of course belonged to the state and the state officer was acting in his capacity as a state officer.

Testimony is clear that he hadn’t been asked to pursue this investigation by the Federal Government.

Now, in between the two recorded calls —

Potter Stewart:

Now, what does this record show?

What kind of an investigation was it?

What was going on there?

The record is not entirely clear with respect to the state interest involved.

Potter Stewart:

You mean, what — how many phone calls, a 180, you just say?

No, between 80 and 100 in a seven-day period.

Four days —

Potter Stewart:

He recorded them all?

All the calls weren’t record.

There were — there was a — there were a substantial number of other calls but this number was recorded.

There is testimony to that effect.

Hugo L. Black:

Was it a long distance call (Inaudible)?

They were — the ones to petitioner Hoffa were long distance but in the quantity of these calls, they were both incumbent.

Earl Warren:

How were they recorded?

There’s a wire tap?

Mr. Chief Justice, they — the testimony is clear in this respect there was an induction device which was placed on the outside of the telephone instrument and of course Partin did the placing and Partin was the operator of the telephone call, so I don’t think that for purposes of Section 605, that would be a wiretap but in any event it’s not an issue in this case because the defendant introduced them into evidence.

Earl Warren:

Was the fact of the recording known to either or either side of the conversation?

Mr. Partin, his — certainly as to his side the conversation because he fixed the device to the telephone.

But in any event the — Mr. Grimsley, the Department of Justice attorney testified that he had nothing with the recordings and he did not know what the Louisiana state officials and Partin’s real purpose was in making this vast amount of calls.

The record is also not clear as to when the Federal Government received knowledge of the specifics of these calls or copies of the recordings but the Government was certainly advised of their general content, well at least of the general contents of the last call, the October 18th call on that same day which was four days before the Nashville trial commenced.

Now, following this last recorded call, the transcript of which is in evidence, this is the call of petitioner Hoffa on one hand and Partin on the other hand, both the state officials who was involved and Partin told Mr. Grimsley, the department attorney that Hoffa had invited Partin to Nashville and Grimsley so understood it.

Grimsley then reported the gist of this conversation to Mr. Sheridan and Mr. Sheridan in turn told Grimsley to ask Partin to call Sheridan in Nashville if he saw any evidence of jury tampering or other illegal activity.

It was his 18th call at which the plans between Mr. Hoffa and Mr. Partin were finalized as to when they would get together.

Now, this request to Partin was conveyed to him by Grimsley at a meeting in Atlanta on October 20 were two days before the trial.

This conversation or this meeting concerned many matters other than the Nashville trial.

The testimony is that during the major part of the meeting other things were discussed, but eventually the conversation turned to the — to Partin going to Nashville and Grimsley asked him if he was going to comply with Hoffa’s request, that Partin meeting.

After Partin said that he did plan to meet the petitioner Hoffa, Grimsley asked him to keep his eyes and ears open and should he observe any evidence of jury tampering or other illegal activity to report it to Mr. Sheridan in Nashville.

Earl Warren:

May I ask who of course suggested that the two meet, Hoffa and Partin?

The record is not at all adequate in this respect Mr. Chief Justice.

I would be the last to deny that the Federal Government after the information that had been given to it by Partin that information to go back was the plan to murder a member of the cabinet and I believe counsel adverted this morning to another matter, the bribery of an NLRB official.

With that information in hand, the Government was naturally interested in Mr. Partin getting any further information in that regard that he could.

The Government didn’t care whether the meeting was in New Jersey, Washington or Nashville.

This is what I referred to previously as everything happened here within a months period.

Hugo L. Black:

Did you say he got out of jail on another bond?

He was in jail Mr. Justice on a non-bailable offense, kidnapping.

Under Louisiana law however if the victim in this case, the child of a friend of his was — is returned unharmed it becomes a bailable offense.

Hugo L. Black:

I understand.

Following the return of the children a bail was fixed at I believe $5000 or $6000 for that offense.

Hugo L. Black:

And he made the bail.

Yes he did.

And the charge was later dismissed because the mother refused to testify against her husband and the charges were invalid.

Hugo L. Black:

He is already out on the federal offense?

That’s correct.

He’d always been out on the federal offense.

Hugo L. Black:

And when that was cancelled he made another bond?

That’s correct sir.

They got five or six local friends to put up the bond for him.

Earl Warren:

One, I believe someone said about a manslaughter charge?

There were several other charges the — there was something said about an automobile accident in Alabama which may have been involved a manslaughter charge.

There was also something said about — there was also something said about a charge for battery and perjury.

However, the record is clear that this occurred after the Nashville trial sometime in 1963 and he was acquitted of the battery charge and the perjury charge which grew out of the battery charge was null.

That’s a state charge.

Hugo L. Black:

About when was the federal charge filed?

The federal charge in my recollection is — was the spring or early summer of 1962.

Hugo L. Black:

That would be how many months before this?

What was the precise date of the embezzlement indictment?

Hugo L. Black:

What happened to the federal charge?

The federal charge is still pending.

Hugo L. Black:

They even got that (Inaudible).

I might add in connection with that Mr. Justice that the federal indictment was returned June 22, 1962, period of time where you’re concerned with this —

Hugo L. Black:

That — in four years?

Is October of 1962.

Hugo L. Black:

Yes, the October.

Yes sir.

Earl Warren:

When did they allege the crime was committed?

It was a 26 count indictment I believe went back in 1961 Mr. Chief Justice.

As Mr. Justice Black points out the indictment has been pending for four years.

Hugo L. Black:

Was there any reason shown for that in the record?

The record of course was not too long after the charge was brought.

I can — I plan actually to review this matter after this case is disposed of by the Supreme Court.

We have — I personally felt that if the Department of Justice under attack because of this indictment either dismiss or proceeded that we would be — we were on the horns of the dilemma.

The — I intend to have an independent review made of the matter and will dispose of it in accordance with that.

Potter Stewart:

Mr. Vinson, the — I don’t promote — want to interfere with your presentation but just so that I’ll be able to follow it on my intention on its relevance, what is the basic purpose of this detailed account, is it to lead with the element conclusion that Mr. Partin was not an undercover agent, was not a government agent?

Does that always happen?

No sir.

Potter Stewart:

(Voice Overlap) on the hypothesis, it was in this case.

We can in no way —

Potter Stewart:

(Inaudible)

We can in no way take that position.

However, petitioners make a broad due process argument that really relates to the inherent fairness of the Government’s conduct.

Earl Warren:

I didn’t quite understand what you said — when you said you could not maintain that — what was the relationship of this man to the Government?

Was he an agent, was he an undercover man?

He was certainly an informant —

Earl Warren:

Well, that is —

— of the government.

Earl Warren:

I know —

Yes Mr. Chief Justice.

Earl Warren:

— but was he more.

His information was used by the Government.

Earl Warren:

I didn’t ask that, I asked you if he was more of an informer.

Was he an undercover man?

I’m not sure, I know how you define that term Mr. Chief Justice, if you mean was he on the payroll?

Earl Warren:

Was he — was — no —

Was an undercover agent, no.

Earl Warren:

I don’t mean that payroll, what — were — was he compensated at all?

He was not compensated at all.

The $1200 which was paid him, this is something that I plan to get into, the $1200 that was paid him following the Nashville trial was compensation for expenses both travel and per diem in the period between the Nashville and the Chattanooga trial in assisting the Government to prepare for trial.

Earl Warren:

But their voucher is showing that he spent that money and was paid for?

No, the —

Earl Warren:

(Voice Overlap) —

In candor, the accounting was not too good.

The — a piece of paper was introduced showing the trips he had made and the airfare, the amount of time he had spent in the per diem and it was added up and it came to some 1500 and I believe 23 some $300 plus more than was paid him through Mrs. Partin.

Earl Warren:

How did the money happen to be paid to the wife instead of — to him?

He was obligated to pay her $300 a month support for her and some children.

He asked that it be paid in this manner because he said I can — I believe his words were, I can take care of myself.

You pay it this way.

Also, I might add that there was a security aspect in making the payments in indirect manner.

Hugo L. Black:

What security aspect?

We felt that it would better if the — if those involved did not know at that time that he was an informer for the Government.

Earl Warren:

Well these were paid to — these payments were made to her month by month, were they?

They were made to her in installments of either $300 or $150 over a period of a few months commencing in July 1963.

Earl Warren:

But in each month there was a payment?

For the short period of time.

Earl Warren:

Yes, during the time but the payments were made.

They were made from month to month.

Yes sir.

Earl Warren:

Now how did you know that this was going to amount to so much, I understood you to say when it was all over, the way you figured it out roughly was about $1500 so paid in twelve.

How did you know that it would come to $300 a month as you went along before you got that (Voice Overlap)?

When the payments were commenced it was recognized that there as money owing for reimbursed expenses and travel and it was commenced and $1200 was paid, a total and according to these figures, the Government still owes Mr. Partin some $300.

Byron R. White:

Did the —

Earl Warren:

Why didn’t you pay that?

I don’t know why they stopped the $1200 Mr. Chief Justice.

Tom C. Clark:

Did the general expense include the 11 trips?

No, it did not Mr. Justice.

That was Justice Black’s question this morning which counsel for the petitioner referred to immediately after the noon recess.

The union Local No. 5 had paid for Mr. Partin’s expenses in connection with those 11 trips.

Potter Stewart:

Mr. Vinson does your case stand or fall upon the issue of whether or not Mr. Partin was a paid government agent?

No sir, we think not.

Earl Warren:

Suppose he was a paid government agent, would you be in any different position than you are here today?

Legally?

Earl Warren:

Yes sir.

No sir.

(Inaudible)

That’s correct sir except for the due process argument.

Now, as to — we no have — we now have Mr. Partin arriving in Nashville on October 22nd.

Now some may have the impression that the accommodations of petitioner Hoffa were for a tight knit so-called defense camp of lawyers and the defendant.

Such — just is not the case.

Petitioner Hoffa’s own testimony and that of his associates makes it clear that there was a constant stream of union officials, acquaintances, friends and associates through these quarters.

There’s testimony that reference has been made to Partin eating with lawyers.

Well, there’s testimony that people often ate in groups of ten, 15 or 20.

On page 118 of Volume I of the record, there is a picture of petitioner Hoffa and 11 of his friends and associates leaving the hotel in Nashville during the trial and only two of those in the picture are attorneys.

Now, when Mr. Partin of petitioner Hoffa’s.

With him was a man who introduced himself as Arthur — as Anthony Quinn.

Now, this Anthony Quinn later that day reintroduced himself by his correct name Twill and this is according to Partin and said that Mr. Dorfman had ask him, Twill, to come to Nashville and help him get to the jury.

Twill in his testimony admitted to a conversation with Partin but he denied the balance of Partin’s testimony in this regard.

In connection with this first day, Partin also testified that Hoffa said, petitioner Hoffa said that Twill was in Nashville to help him.

Now, also on October 22nd, the first day, petitioner King told Partin that there was a meeting on the jury that night.

Later that evening, Partin testified that petitioner Hoffa told him “that they was get to one juror or try to get to a few scattered jurors and take their chances.”

Now, Partin that afternoon or evening called Sheridan to report all or some of the above occurrences relating to jury tampering and later that day, October 22nd met with him personally.

The next day, October 23rd, before Partin left Nashville petitioner Hoffa told him that he, Hoffa might want Partin to pass something for him when Partin return.

Now, as on the side here, I should say that Partin’s testimony with respect to particular conversations with petitioners Hoffa and King and with defendants below Dorfman and Twill were denied by them at trial but this also points out the —

Hugo L. Black:

Denied by whom?

Were denied by these individuals at trial.

But this also points out the discrimination displayed by the Chattanooga jury for there was a substantial approved aside from Partin that these petitioners made efforts to get a Jurors Pascual and Fields and there was less proof as to the involvement of defendants Dorfman and Twill who were acquitted along with petitioner Hoffa on count four of the indictment.

Now, the details of proof as to the actual efforts to reach jurors are spelled out in detail in the brief.

I think there’s no need to go into that.

Earl Warren:

Mr. Vinson, do you happen to have the page number of that conversation where Mr. Twill told him that he had come down to — at the jury or depicts a jury?

Yes, I have two references to that, Volume 2 R, page 261 and Volume 3 R, page 819.

Earl Warren:

Thank you very much.

Now during the remaining 22 days approximately that Partin was in Nashville during the trial both petitioners Hoffa and petitioner King made a number of statements relating to jury tampering, incriminating statements to Partin.

Or Hoffa berated petitioner King in — about his inefficiency in this jury tampering efforts and this was in Hoffa’s — this was in Partin’s presence.

Counsel for petitioners made much of the fact in his Fourth Amendment argument that this was a different sort of overhearing.

This wasn’t a face to face conversation which the auditor was intended to hear but the record in this regard makes clear that Partin was on the scene, was known to be on the scene and was intended that he overhear this conversation so that no real distinction in that respect.

The statements that were told to Partin or that were made in his known presence included one that petitioner Hoffa made with respect to having the male Negro juror in his hip pocket.

These statements as to jury tampering were all passed on to Mr. Sheridan by Partin either personally or by phone.

With respect to the statement as to this particular Juror Fields was the only male Negro on the jury.

Now, there’s no dispute that Partin call Sheridan or met with him often perhaps daily when in Nashville during the trial.

These reports were all oral.

Mr. Sheridan received Partin’s reports without comment.

He never gave Partin instructions as to what to do or not to do.

He didn’t ask him to stay in Nashville.

Now, when information as to the jury tampering was received by Sheridan, he would turn it over to the FBI.

The FBI would then investigate and seek to corroborate it.

When the investigation eventually or eventuated into a great substance corroboration of the Partin reports, remedial steps were taken by advising the court.

This led in December of the trial first to the disqualification of Juror Pascual and then to the disqualification of Juror Fields.

We’ve already discussed the matter of payment and the confusion about payment in the record.

The record that probably is the most contradictory with respect to Partin’s access to the quarters and counsels of the defense.

Petitioner Hoffa had five attorneys of record during the trial and three other attorneys were with him during part or all of the trial.

I have already alluded to the throngs of non-lawyers who were passing through and in and out of these premises.

Partin testified that he was in and around petitioner Hoffa’s suite and for a period of time, he did act as doorman.

He also testified that he frequently saw and occasionally conferred with petitioner Hoffa’s attorneys.

In essence, his testimony was that he made no effort to be present at conversations involving attorneys.

He might have been but he did not know what they were talking about.

He’s a man with a tenth grade education.

He stated that the attorneys would move you out as he expressed it when they were discussing the case and he didn’t think that he ever reported anything told him by an attorney because Sheridan wasn’t interested in that.

Now, Sheridan’s testimony with one exception is not to the contrary.

Sheridan testified that Partin passed on to him information as to the comings and goings of people, jury tampering efforts, happenings that were perhaps illegal, certainly unethical and a very few comments generally related to the trial.

At no time did Sheridan receive any documents or any copies of documents from Partin.

Now, I refer to one exception, the counsel referred to as this morning.

This was — this exception concern an oral report by Partin that Sheridan understood to mean a lawyer was writing out questions and answers for a group of witnesses to memorize.

Partin did not convey to Sheridan the questions and answers themselves but merely the fact that there were questions and answers.

Now, the defense testimony which in regard to access, you heard summarized in part this morning, it contains a number of internal inconsistencies as to the degree of Partin’s presence and his participation.

But actually petitioner Hoffa’s own testimony which is found at Volume IV of the record at page 1396 gives the impression that I could characterize a testimony as giving the impression that he saw Partin very little during the trial.

He was busy and he didn’t find time to sit down with him to talk about the union business until late in the trial.

Potter Stewart:

Suppose — that was given in this trial, wasn’t it?

The testimony?

Potter Stewart:

By Mr. Hoffa, was given —

That’s correct.

Potter Stewart:

— in this, well, he was on — he’s certainly on the horns of the dilemma, isn’t he if he — if the foundation of the case against him is Mr. Partin’s testimony.

Its pretty natural for him to say in defense that he didn’t — he wasn’t very closely associated with Mr. Partin during the trial, isn’t it?

Or didn’t see him much —

Potter Stewart:

Yes.

— around the headquarter suite during the trial.

Potter Stewart:

Yes.

In any event, that’s what he did testify, Mr. Justice.

Potter Stewart:

Very understandably.

Now, before turning to our legal argument, I would just touch upon one matter I’ve already briefly alluded to and that’s the Government’s reasonable apprehension before the Nashville trial that there would be efforts to reach the jury in Nashville.

This apprehension proved to be fully justified.

Now, on the first morning of the trial at about or just before Mr. Partin arrived, a prospective juror reported to the court an improper phone call from someone posing as a newspaper reporter.

Two more such calls were received — well, two more of such reports from jurors were made the following day.

Earl Warren:

What day was that?

October 22nd was the first report, first day of trial.

Partin’s report of course on the afternoon or evening of October 22nd when he had just arrived in town confirmed these fears and on October 24, this is the third day of trial and it was before the jury was actually sworn, James Tippens who had been tentatively ceded as a juror on the preceding day reported to the court that a neighbor had offered him $10,000 in $100 bills in connection with his prospective service at the trial.

Now, the court advised petitioner Hoffa and counsel for both sides in the Nashville trial of this report and excused Tippens from the jury.

Mr. Partin testified that when he returned to Nashville on the 25th that petitioner Hoffa related this instant to him and commented that we’re going to have to lie low a few days.

So at this very early stage in the proceeding it was quite apparent to the Government that a large scale attack on the integrity of this jury in this trial was well under way.

The activities of this nature ultimately culminated with 12 defendants charge with nine separate endeavors to obstruct and in six persons convicted, four of which — four of these convictions are before the court in this case.

And of course the case immediately preceding this, the Osborne cases involved a similar charge in the succeeding Chattanooga case.

Earl Warren:

What is the status of the other two that are not here, Mr. Vinson?

You don’t know?

Mr. Medland was — Mr. Medland was convicted and you denied cert I believe was in recent days.

And Bell was the other gentleman which cert was denied there also.

Now, I should make clear that the Government’s position and the Government’s basic arguments don’t depend on the practical necessities of this case.

This is what the Government was confronted with and had to deal with from the first day of the trial but our basic arguments don’t depend on those practical necessities.

But we do ask the court to consider these exigencies in connection with the basic question of fairness presented.

Now, this leads me into a discussion of the Sixth Amendment argument raised by petitioners.

Earl Warren:

Mr. Vinson, may I ask you this just to clear up something in my own mind.

Earl Warren:

If we should conclude that Partin was a paid representative of the Government for the purpose of getting into the counsels of the defense, would your position be the same?

Our legal position would be the same, yes, Mr. Chief Justice.

Now, the legal issue upon which certiorari has been granted concerns the admissibility in Chattanooga of the evidence obtained by the Government from Partin during the Nashville Test Fleet case.

More precisely the issues whether Partin’s testimony with respect to jury tampering efforts should have been excluded at the Chattanooga trial as having been obtained in violation of the Fourth, Fifth or Sixth Amendment.

Now, the context however for determining this question is the Chattanooga jury fixing case and not the Nashville Test Fleet case.

It’s very important at the outset of the Sixth Amendment argument to note that Partin’s challenged testimony dealt with statements made to him by petitioners Hoffa and King concerning current or future endeavors to corrupt the Nashville jury.

The Sixth Amendment certainly does not make privilege every statement made by defendant on trial.

It does not cloak with privilege statements made concerning criminal offenses which are planned or committed during trial.

If a defendant tells his lawyer that he’s going to bribe a juror, the attorney has an obligation to attempt to dissuade his client.

He also has an obligation to report the plan of felony to the authorities.

The law is clear in this area, the Clark case dicta in the Supreme Court, in In Re Sawyer, Seventh Circuit case and many others.

Now, an informant is as least — an informant is at least as free to report and testify to such disclosures as the attorney of the person who makes the disclosures.

Thus, we feel that the short answer to the Sixth Amendment issue is that petitioner Hoffa and petitioner King’s remarks as to which Partin testified were clearly unprivileged.

Now, with further reference and still on the Sixth Amendment point it’s important to note that the issue in the case is still not the constitutional standards relating to the Nashville trial but the admissibility of evidence at the Chattanooga trial.

Now, both the trial court and the Court of Appeals held that there was no interference with Sixth Amendment rights at the Chattanooga trial, the second trial.

They reasoned and we argue that it’s not necessary any fruit of the poisoned tree argument because there just was no unlawful invasion by the Government of defendant’s right to counsel in the Nashville Test Fleet case.

But in any event as I will develop more fully in a moment, the Partin’s testimony was not in any sense the fruit of alleged governmental wrongdoing.

Potter Stewart:

I don’t understand that last statement of yours, I think it’s very forcefully alleged by your Brothers in opposition that every entry that Partin made into that hotel suite was an act of wrongdoing.

Well, couldn’t have testified at all if he hadn’t been there.

Well, they take the position that the entry was illegal.

Potter Stewart:

Exactly.

Every —

We do not —

Potter Stewart:

Every — each and every entry was illegal.

We do not agree with that position.

Potter Stewart:

Well,

The — the —

Hugo L. Black:

Well, you take the position do you not I presume you used, the Government has a right to hire somebody or to get somebody or to accept the service of somebody.

Over here, what said between people connects with the contemplated crime.

And we take the position that one who is told by petitioner Hoffa that he is committing an ongoing criminal act has the right and indeed a duty to report that to the authorities.

Hugo L. Black:

But — does it make any difference that the Government utilizes a person and pays him something for their services?

We think not Mr. Justice.

The — in the trial court and in the Court of Appeals petitioners advanced the fruit of the wrongdoing contention.

In other words that Partin’s testimony, the facts he elicited and testified to were the fruits of his wrongdoing in violating Sixth Amendment rights.

We feel that the court need not reach this argument if it finds there was no violation of Sixth Amendment rights at Nashville.

But even if this Court should be of a contrary view, that conclusion would not justify reversal of these convictions.

Earl Warren:

Mr. Vinson, I wonder if you would consider an obstruction of justice if a defendant was to employ someone to secretly get into the counsels of the Government and to sit with them in their deliberations during the state — during the trial and then report to what was — what went on back to him, disclosing Government secrets.

Yes sir.

Earl Warren:

You would consider that an obstruction of justice even though he said I —

I would consider it.

Earl Warren:

I would have the opinion that they were going to violate my constitutional rights so I employed someone to go in there and know what was going on to see if they were actually doing it.

I would consider it improper and illegal on either side of the fence.

However, I would not consider the reporting of a statement made as to ongoing criminality to be in any way connected with the Sixth Amendment rights involved.

The question you posed with respect to obstruction of justice on one hand and the Sixth Amendment violation on the other hand really illustrates the — one of the ironies in this case because here in our view the petitioners seek to expand the umbrella of the Sixth Amendment which passes a very basic purpose, the protection of the adversary system and at the same time it’s charged with violations of Section 1503, the statute which has the same general purposes.

But getting back to the fruit argument, I believe that in this Court the petitioners have changed the thrust of their argument a bit.

Below, they argued the fruit of the wrongdoing.

Here they appear to take the position that it’s not a fruit problem but rather this is the poisoned tree itself.

But in order to examine this issue in either context.

We first should recall that the issue is the admissibility of evidence in the Chattanooga trial, the second trial.

Now, the alleged wrongdoing is intrusion by the Government upon the right of counsel and defendant’s right and counsel’s right to prepare for trial, right — rights which are protected by the Sixth Amendment.

With regard to the Chattanooga trial, the question is whether any alleged infringement of petitioner’s rights in Nashville requires the exclusion of Partin’s testimony as to jury tampering efforts.

The test set up by this Court in Wong Sun, the test for determining causal connection is helpful in this regard.

The court said that the question is whether granting primary illegality the evidence has been come at by exploitation of that illegality.

Now, for applying this test, we must assume arguendo that there was a violation of Sixth Amendment rights.

It’s this violation the alleged communication of defense strategy which we feel would constitute the primary illegality under the Wong Sun test.

The unprivileged statements regarding jury tampering and thus Partin’s testimony was not — come at in any sense of the word by exploitation of that illegality.

Now, here Partin did not obtain evidence with respect to jury tampering as a consequence of any knowledge that he gained during the course of attorneys’ conferences or otherwise related to the operation of the defense.

Here no statement petitioner Hoffa’s, no statement of petitioner King’s which was testified to by Partin had any possible relationship to any legitimate aspect of the Nashville defense.

Earl Warren:

How do we know what the Government knew as a result of Parin’s disclosures to it and how do we know what it — what might have helped them promote disclosures in a strategy in their case?

It isn’t just a fact that they introduced testimony concerning statements but how can the court know if you have someone from the other side sitting in on your counsels?

Well, that question of course — that question is — would be — if we were here talking about the constitutional propriety of the Nashville trial as to whether the defendant — the defendant’s secret information had been fed to the Government.

If that were the fact, I would agree that the Nashville trial would fall short of constitutional standards.

But here, we are talking about the Chattanooga trial months hence at which Partin testified to the jury tampering efforts during the Nashville trial.

The — another approach to the Sixth Amendment problem is of course to say that this is analogous to the argument we’ve previously made as to say that the Sixth Amendment defines a relationship.

It doesn’t define the defense camp as such.

It’s the relationship between the attorney and his client, their right to prepare for trial.

Now, heartening back to Wong Sun, the Court held that Wong Sun’s confession made after his illegal arrest was not the fruit of the Government’s wrongdoing because following his release, he returned voluntarily several days later to make his statement.

Now, the Court’s holding was that the causal connection between the arrest and the statement was so attenuated that the taint was dissipated.

There was a connection where it was tenuous.

In this case, we urge that the relationship between whatever access Partin had to defense strategy in the Nashville case and the incriminating statements privately made to him is far more tenuous there completely unrelated to any testimony of Partin in Chattanooga bears no relationship to any legitimate aspect of the defense of the Nashville trial.

The main thrust of petitioner’s argument in this Court would appear to be the Fourth Amendment.

In Osborne argued immediately preceding these cases, the Fourth Amendment was adverted to.

In Lewis, the case immediately following the Fourth Amendment is virtually the only issue.

As the Fourth Amendment issues in this case, in Lewis particularly are so closely allied, I will limit my argument with respect to the Fourth Amendment to — a response to petitioner’s principal contentions.

But before doing this, I think it would help to focus on this problem to set forth clearly those matters about which there is no dispute.

We have no dispute with Gouled.

We have no dispute with any of the cases cited by petitioner.

These are the matters which are not in dispute.

There is no dispute that the hotel suite occupied by the petitioner was an area protected by the Fourth Amendment.

There’s no dispute that the Fourth Amendment can under some circumstances be violated not only by a forceful invasion but by stealthy or deceptive entry.

We point out in our brief however on pages 133 and 134 that the conduct of Partin did not amount to the type of deceptive invasion prohibited by the amendment.

Petitioner Hoffa knew Partin’s identity.

He knew that he posses the legal right to exclude him and he knew that he didn’t have to speak to him anytime, anyplace.

Now, petitioner’s brief is at pangs to establish that verbal statements can be the subject of a Fourth Amendment violation.

We do not disagree but petitioner goes on to state that every statement, every statement made within the confines of a protected area is constitutionally protected.

And here, we sharply disagree.

The statements made by petitioners Hoffa or petitioners King were not made in reliance on the fact that the parties were at that time in the hotel suite of Hoffa.

The statements bore no relationship to the privacy of that suite.

They could have been made on the street, an open field, in a hotel lobby.

In fact, some of the statements, two pages in petitioner’s brief is devoted to setting forth these statements as obvious that many other made more elsewhere which again just demonstrates the irrelevancy of the place where statements of this nature and quality are made.

Potter Stewart:

Now, I am not sure I follow that.

Certainly these statements would not and could’ve not have been made in public, could they?

They could have been made in a public place, a place not within the protection of the Fourth Amendment, an open field.

Potter Stewart:

Well, a person is within a — wherever he is within the protection of the Fourth Amendment.

That’s — a person has the protection.

Potter Stewart:

Yeah, wherever he is on this —

But the Fourth Amendment —

Potter Stewart:

(Inaudible) as the protection of the Fourth Amendment.

But wherever a person is, the Fourth Amendment does not protect his voluntary statements made to an auditor.

The — that sort of statement, the risk the person runs is that the auditor will repeat the statements and that risk has no relation to the place of a state.

Potter Stewart:

But it does have a great deal of relationship with privacy and confidentiality, doesn’t it?

Indeed it does.

Potter Stewart:

So it’s not really accurate to say that these statements could have easily been made anywhere and to a 100 people of a cocktail party or something?

Well, that’s — that is speaking in terms of place and not to whom.

Potter Stewart:

Yes, it’s a private and confidential conversation.

Well, the — in the Osborne case you heard argument yesterday and this morning and there was testimony in that record with respect to the petitioner and Mr. Vick going to the alley to have a private conversation, dealing at the alley was a private place.

Hugo L. Black:

Well, the facts of this — seems to be is that he consented with the man being in his room.

That’s correct sir.

Hugo L. Black:

He thought the man was loyal to him and he was loyal to somebody else.

That is correct sir.

Now, prior decisions upon which petitioner appears to rely aren’t inconsistent really with our analysis of the protection which lies behind the Fourth Amendment, the Silverman case.

Government agents there eavesdropped by means of penetration into a protected area.

That issue just isn’t present in this case.

In Gouled relied on most forcefully by petitioners.

A government agent pretended to make a friendly call, gained entrance in that deceptive manner and then when the owner of the premises was absent surreptitiously took documents.

In this case, in the context of the cases before the court here, this would be analogous to as hiding in the closet and overhearing statements which were not intended for that auditor to hear.

Now, the facts of this case resemble in some ways those in Lopez v. United States.

There, an Internal Revenue agent pretended deceptively to collaborate in defendant’s efforts to bribe him.

The court held that there was no unlawful invasion of defendant’s office because of this, the deception and pointed out that he did not violate the privacy of the office by seizing something surreptitiously without petitioner’s knowledge.

Now, I would point out that even those who dissented in Lopez did not do so on the basis that a Fourth Amendment violation had occurred because the Government agent had not disclosed his real intentions.

In fact the language of the dissenters supports the Government’s position in this case.

The language I referred to is that which relates to it is not an undue risk to ask persons to assume for it does no more than compel them to use discretion in choosing their auditors and to make damaging disclosures only to persons whose character and motives may be trusted.

There is a final important point which was emphasized in the Government’s brief in Lewis.

It’s equally applicable here.

The Fourth Amendment rule contended for by petitioner would very seriously hamper the Government’s use of informants as I have pointed out there is no logical connection between the privacy of a Fourth Amendment area and the fact that a person engaged in committing a crime intentionally makes statements to an informer.

Now, acceptance of petitioner’s Fourth Amendment argument would mean that the Government would be completely barred from using the testimony of an informer where it relates to statements made by an accused to the informer inside the accuser’s house, his apartment, his office, his automobile.

For all practical purposes, the effective use of informers would be seriously curtailed.

With respect to the general subject before the court, the use of informants, there is unfortunately crept into our society the tendency to deprecate private citizens who assist law enforcement agencies.

Whether that assistance be a physical or testimonial and this of course is true in Spades for the informant.

But as our society becomes increasingly complex and sophisticated, so does the rapacity of those who would corrupt society.

Now, continuing criminal schemes such as those involving espionage or the deprivation of civil rights has as an important part of its code, the code of silence, penetration by informants is virtually essential in this context.

Now, any criminal scheme which is well bank-rolled and well-planned provides a very substantial amount of insulation to the top layers.

Now, this is particularly true when we deal with consensual crimes, crimes such as gambling, narcotics, bribery, jury tampering.

Now, unlike crimes of violence, these consensual crimes do not have individual victims.

The only victim of this sort of crime is the body politic.

You don’t find a successful jury fixer nor do you find a juryman who sold his vote coming into complaint.

This sort of crime, consensual crime, victimless crime if you will is not just difficult to prove.

It’s often difficult to discover.

Unfortunately, these victimless crimes are those which I feel most perniciously corrode our society.

As co-counsel on the brief I have with me Mr. Lewin who argued the portion of the case in the Court of Appeals request ten minutes for Mr. Lewin I believe that’s within the time of the Government.

Earl Warren:

Mr. Lewin.

Nathan Lewin:

Mr. Chief Justice may it please the Court.

I would just like to take these ten minutes if I may to clarify some of the issues which have been raised and discussed during the Justices’ questioning.

Particularly going to the Chief Justice’s question relating to the Sixth Amendment, I think that the critical point in this case, and the point on which the Government stands is that there is no evidence whatever in the record or any shred of suspicion that there was any attempt by the Government in any way to place an informant in the counsels of the defense to learn defense strategy.

I believe the Chief Justice asked whether if the Government had in fact had a paid government agent to learn defense secrets whether we would be contending that the testimony of such an agent would be admissible in the trial of these petitioners in Chattanooga.

In effect, I think although it might possibly be arguable that we could separate out the testimony of the informant, we think that would be a far, far harder and more difficult case and present much more serious dangers of infringement of constitutional liberty.

Certainly, the Government may not plant an informant in the counsels of the defense such as the Chief Justice analogized it to a defendant planting an informant in the counsels of the Government to learn strategy.

Potter Stewart:

Well, what if the defendant in a criminal trial had probable cause to believe that the prosecution was going to try to bribe members of the jury?

Nathan Lewin:

The difference Mr. Justice Stewart I think is that he would then be required to bring the evidence so some law enforcement authority.

Potter Stewart:

He can (Voice Overlap) he doesn’t have that evidence for that.

Nathan Lewin:

Well —

Potter Stewart:

But he has probable cause to believe it and he wants to get evidence of it.

Nathan Lewin:

So long as he is not attempting to get Government strategy.

So long as he is not interested in effect in undermining the right to a fair trial, the Government and his right to a fair trial, we think he can take steps to secure that evidence and that’s really the position that the Government is in this case.

The Government not having any interest at all in learning trial strategy nonetheless knows that jury tampering occurs during a trial and its only during a trial that a defendant, that a man or primarily during a trial that a man discusses attempts to bribe a juror.

Now, in this case because of all the background prior to the Nashville trial, there was reason for the Government to believe that there may be other unlawful activity.

Hugo L. Black:

But what if the Government placed in there a (Inaudible) it seems to me like the Government’s willing to admit they gladly took advantage of his services, whatever the motive he had in giving them.

Nathan Lewin:

Definitely Mr.–

Hugo L. Black:

And that they then compensated him by paying his wife.

Nathan Lewin:

Well, the compensation question Mr. Justice Black is involved in the record and the fact is that the Government has never conceded and we do not concede now that that was payment for his conduct during the Nashville trial.

Hugo L. Black:

They didn’t give it to him, didn’t they?

Nathan Lewin:

Because subsequent to the Nashville trial Mr. Justice Black, he traveled around the country — at different places of the country to meet with Government prosecutors in preparation for the forthcoming trial.

Before that first check was paid Mr. Justice Black, he had already run up a bill substantially in excess of what the Government was paying him.

He was entitled to receive more than that before that first payment was made to his wife and that’s the reason that the Government undertook to make these payments that way because they knew that at every payment that was being made, there was more being owed to this man in the way of return compensation for his services than he — then was in fact being paid to his wife as of that time.

Potter Stewart:

What difference does all this make?

Nathan Lewin:

Well, that —

Potter Stewart:

He was a government agent, wasn’t he?

Nathan Lewin:

We think he was a government agent.

Potter Stewart:

Yes.

Nathan Lewin:

If he — even if he wasn’t before October 22nd —

Potter Stewart:

(Voice Overlap) whether he was paid or —

Nathan Lewin:

— he was on October 23rd

Potter Stewart:

Whether he was paid by going easy on these indictments against him or whether he was paid $1200 or $12,000 or 12 cents, doesn’t make much very difference —

Nathan Lewin:

Right.

Potter Stewart:

— to the constitutional question.

Nathan Lewin:

Absolutely.

We think he was a government agent but he was not a government agent Mr. Justice Stewart to learn defense secrets and we think that’s a critical difference.

If he were a government agent to learn defense secrets then we believe that the question that the Chief Justice asked would be very material to this case because then it would be very difficult if — but the Government would entitled to put in an informant in the defense camp to learn defense secrets, then you’d never be able to know whether the Government is in effect gotten defense secrets which have infected the trial or not.

But when the only — excuse me.

(Inaudible)

Nathan Lewin:

I agree with that Mr. Justice Harlan but I think that nonetheless that would present a —

(Voice Overlap) you will find it also (Inaudible) —

Nathan Lewin:

Simply —

We have the District Court finding which would — the Government has tried to get some support (Inaudible)

Nathan Lewin:

Yes, yes sir, Mr. Justice Harlan, we would.

But I think if we had — if we — if they were evidence that we had put this man there to learn defense secrets, to be in the counsel for the defense, to tell us what the defendant was intending to do, we — I think that might very well go back to petitioner’s argument which Mr. Justice Stewart characterized as very forceful at every entry of his into a room was in some way of an unlawful entry because he was going in there to learn defense secret.

(Inaudible)

Nathan Lewin:

No.

(Inaudible)

Nathan Lewin:

True.

But he wasn’t even planted in Nashville to be in the counsel for the defense.

Hugo L. Black:

But what’s the difference in saying he — they didn’t put him there, and they didn’t keep him there, they kept him there, didn’t they?

Nathan Lewin:

He — they were interested in his remaining there Mr. Justice Black.

We never — he was never instructed that record is unequivocal on this point.

He was never instructed to remain there.

He was never told to remain, never even — he was never told to come back.

He came back because he knew that it was in the Government’s interest and in his own interest to come back and speak —

Hugo L. Black:

As it functioned, he stayed there and reported to them daily for a long time with their knowledge and their acquiescence and their consent.

Nathan Lewin:

In their acquiescence and consent in obtaining information of illegal activities and that we think is really the crux of this case that that is the all the Government was interested in and not in the counsels of the defense.

And there is not a shred of evidence that the Government was ever attempting to get into the counsels of the defense.

Or — and it is our contention in fact that the one incident that really did come out, as to the counsels of the defense was entirely unintentional.

It was an instant in which both Partin and Sheridan to whom he reported believed that there was illegal activity going on that possibly there was subornation of perjury because the way Partin reported the story, there were written out questions and answers being given to witnesses.

Now, Partin reported that story to Sheridan and Sheridan had on the basis of that report every reason to believe that there — they were prepared testimony that was being handed to these witnesses from which they could testify.

And let me just turn very briefly if I may to the Fourth Amendment and I think that the answer of the Fourth Amendment claim is really dual.

One is that Partin was invited into Hoffa’s suite.

Hoffa knew who he was.

He may not have known what his purpose was in speaking to him but he was invited in there with full kowledge as to his identity and Hoffa spoke to him voluntarily in the suite without any suggestion of coercion in the — into the hotel suite.

The second —

Earl Warren:

Suppose it was his brother?

Nathan Lewin:

Pardon?

Nathan Lewin:

Suppose it was his brother and the Government paid him to get into his counsel, would that make any difference?

We think it would not make any difference under the Fourth Amendment Mr. Chief Justice.

If — for the Government to pay somebody’s brother to report on him might very well possibly conceivably presented some due process claim.

We don’t think it would be important.

Earl Warren:

Well, you said this man was a friend of his and therefore he was welcome in his quarters, now would it make any difference if it — we were so close to him as a brother would be —

Nathan Lewin:

Not —

Earl Warren:

— and the Government had that relationship with him?

Nathan Lewin:

Yes.

We don’t think it would make a difference

Earl Warren:

That would make any difference, would it?

Nathan Lewin:

We don’t think it would make any difference under the Fourth Amendment, no, none whatever.

There — or there comes a point and I think Your Honor suggested that in your concurring opinion in Lopez in which possibly playing — the Government’s playing on camaraderie in crime or in close relationship on a close relationship of an informant to a defendant may present due process questions.

But nobody suggest that Partin’s relationship to Hoffa was such that those kinds of questions were presented in this case.

He was an acquaintance of five years standing and one with whom Hoffa worked closely on Teamster business.

Hugo L. Black:

One who Hoffa thought was his friend and going to operate with him and going to help him do any — whatever was to be done and he’s just mistaken in the man.

Nathan Lewin:

Absolutely, he just misplaced his confidence.

And that we say is really the gravamen of the invasion here, of the intrusion.

The intrusion here isn’t on a privacy of the suite.

It’s true as Mr. Justice Stewart point out that this conversation — these conversations were not conversations that Hoffa would have made at a cocktail party but so far as disclosing them to Partin was concern, it really made no difference that he was in the suite.

Hoffa would —

Potter Stewart:

Isn’t it also true, isn’t it also true Mr. Lewin that the — that every individual person is protected under the Fourth Amendment of the United States Constitution no matter how big a crowd he is and —

Nathan Lewin:

Definitely.

Potter Stewart:

— (Voice Overlap) in the middle of Grand Central Station, he has Fourth Amendment protection?

Nathan Lewin:

Definitely, but to the extent that a disclosure of a voluntary statement, is any invasion of a person Mr. Justice Stewart, it’s only an invasion of his thoughts, of his secret thoughts.

If I seek to you —

Potter Stewart:

How about a — how about Griswold against Connecticut for instance?

Nathan Lewin:

Well, why is that —

Potter Stewart:

The constitutional right of privacy.

Nathan Lewin:

Yes.

Well, — true there may be a penumbra of rights around the Fourth Amendment but we don’t think that a voluntary disclosure comes within that penumbra of rights.

Nathan Lewin:

A voluntary disclosure, if I am speaking with you, then a voluntary disclosure is merely as statement which you under no coercion are obtaining from me.

It may be my thoughts but thoughts have never been held to be subject to the Fourth Amendment.

If a thought, if a statement of a thought were subject to the Fourth Amendment, then every coerced confession would be a Fourth Amendment case and not a Fifth Amendment case because if you coerce the man to disclose his thoughts, then obviously you’ve unreasonably seized his thoughts in that sense.

So it — you really can’t say that Hoffa’s face to face conversation with Partin amounted to an invasion of his Fourth Amendment right to be private —

Potter Stewart:

Almost — most words are verbalized either orally or written they are verbalized thoughts and certainly the Fourth Amendment applies to expression not only that which is put down on paper but expression which is oral, does it not or it can?

Nathan Lewin:

It definitely does.

Potter Stewart:

So, (Voice Overlap) —

Nathan Lewin:

It definitely does but our contention is that to the extent that the statements are voluntary then the Fourth Amendment protects them from disclosure or from seizure by — when you’re making them within a protected area by people who are eavesdropping, by outsiders but not by the people to whom you’re communicating them.

Your intention is to communicate them, communicate it to them.

They have unreasonably seized anything.

They’ve spoken with you and you’ve intentionally communicated with them.

And they’re —

Potter Stewart:

But they’ve spoken to you in confidence and in private.

Nathan Lewin:

Yes.

Potter Stewart:

Not in public.

Nathan Lewin:

Right and their disclosure though is in that extent a breach of confidence but I know — we know of no case where a breach of confidence has been held to be a violation of the Fourth Amendment.

Potter Stewart:

A breach of your right of privacy by a government agent, now don’t you think Griswold against Connecticut has some bearing on this?

Nathan Lewin:

I don’t really think it is.

I think it does extend the Fourth Amendment possibly beyond its very precise terms, but I think it’s never been held really to apply to — by the thoughts in that sense and that’s really what’s involved here.

Earl Warren:

Mr. Fanelli, you have few minutes left.

Joseph A. Fanelli:

Thank you.

As to the question of consent that he knew Partin’s identity, he admitted him to his suite, he was at all times free to throw him out.

This is a cynical argument on the facts of this case.

He did not know that this was the Government, the police and consent under those circumstances can only have reference to waiver, waiver of the right to be in his home free of unreasonable Government intrusion and as to that waiver, any such waiver he couldn’t waive anything unless his rights were intelligently and understandably understood and waived and they couldn’t have been in this case when he did not know of the critical fact that this was a cop.

Now, and this has been held in Conley v. Cochran and other decisions of this Court cited at page 35 and settled may it please the Court since Go-Bart Importing Company when the police came to this house, came on the porch and said we have a warrant.

They at least, you knew they were police and they said they had no — they had a warrant which they didn’t have and in an opinion by Mr. Justice Butler that used to sit upon this bench held that because of that deception, because of a general search for evidence, because of the absence of a warrant as is exactly true in this case.

Now, as to a couple of little things in respect to one question I think it was Mr. Justice Black’s as to the payments to Partin, the memo from Sheridan in the Department of Justice to the late Mr. Andrada ordering these payments said in connection with the forthcoming trials in Nashville, Tennessee it is requested that a check in the amount of $300 be drawn against the confidential fund beginning June — July 8 and this is dated July 3, 1963 and it is also requested that a check be drawn each month from November 1963 make payable to Mr. Grimsley, not a word about his expenses on these trips nor any substantiation of them.

Now, as to a question I believe it was Mr. Justice Black or it might have been the Chief Justice, I forget in my weariness, whether Partin invited himself to see Mr. Hoffa in Nashville or whether Mr. Hoffa invited Partin there was a somewhat uncertain answer by Government counsel but I would refer the Court to pages 1434 and 1438 which set forth those 12 telephone conversations and there was absolutely no question that Mr. Partin invited himself to Nashville.

Does this mean my time is over?

Earl Warren:

You may take two minutes more.

Joseph A. Fanelli:

If I may I have one more thing I wanted to comment and it will be my final comment.

Thank you very much Mr. Chief Justice.

Government counsel made a reference to as our society — to something about as our society gets more and more complicated, criminal activities become more and more sophisticated might have been the word.

I thought he was talking about the Department of Justice and I mean that and not jokingly until he referred to espionage and then I know that well that couldn’t be the Department.

But in this type of issue on the questions and constitutional issues presented here, this Court has always found that more pertinent to observe that as its decisions have caught up with this unconstitutional police invasion of the Constitution and that one hardly anybody maybe gets the fair degree today the methods of the police in invading constitutional requirements become more and more sophisticated and therefore as has been said by this Court, this Court must be vigilant in liberal construction of these constitutional requirements to see that their basic intent and purpose is observed.

Thank you very much.