RESPONDENT: United States
LOCATION: U.S. District Court for the Middle District of Tennessee
DOCKET NO.: 29
DECIDED BY: Warren Court (1965-1967)
LOWER COURT: United States Court of Appeals for the Sixth Circuit
CITATION: 385 US 323 (1966)
ARGUED: Oct 12, 1966 / Oct 13, 1966
DECIDED: Dec 12, 1966
GRANTED: Jan 31, 1966
Jacob Kossman - for the petitioner
Nathan Lewin - for the respondent
Facts of the case
At attorney Z.T. Osborn’s trial for attempting to bribe a juror in a federal criminal trial, the judge admitted a tape recording of an incriminating conversation between Osborn and a local police officer. The officer recorded the conversation secretly under authorization of the court. Osborn argued that the recording violated his right to privacy and he was entrapped. A jury convicted Osborn and the U.S. Court of Appeals for the Sixth Circuit Affirmed.
(1) Was the recording properly admitted as evidence?
(2) Was Osborn entrapped?
(3) Did recording Osborn secretly violate his right to privacy?
Media for Osborn v. United StatesAudio Transcription for Oral Argument - October 12, 1966 in Osborn v. United States
Audio Transcription for Oral Argument - October 13, 1966 in Osborn v. United States
Number 29, Z.T. Osborn, Jr., petitioner versus United States.
Mr. Lewin, you may continue your argument.
Mr. Chief Justice, may it please the Court.
In concluding my argument on the entrapment issue, I would only like to draw the Court's attention to several particular circumstances arising out of the record in this case which strongly support the jury's conclusion of no entrapment in light of all the evidence including petitioner's own testimony.
And they are first that in passing on the entrapment claim, the jury was certainly entitled to consider who it is, who was alleged to have been entrapping whom, a policeman of less than one year's experience allegedly entrapping in three or five or six meetings according to petitioner, an attorney of more than 20 years standing.
And this is a defense which the jury was certainly entitled to view with skepticism in light of the kind of case that was involved or in light of the charges as to which the petitioner was defending in the forthcoming trial which for themselves obstruction of justice charges or attempts to bribe jurors.
It's hard to be likely that an attorney in those circumstances would be readily and even half a dozen meetings entrapped into making this kind of an offer.
In addition, it appears quite clear from petitioner's own testimony that he was the one who was instructing, on the very fine details of jury bribery.
According to his own testimony, by the third or fourth meeting he was advising Vick that the way to bribe a juror was to pay half down and half later or that the best way to find out whether prospective juror would take to be bribed would be to ask him he wanted and then double the amount.
And that appears from petitioner's own testimony.
And then the final and conclusive bit of evidence which the Court of Appeals found very persuasive which I think the jury certainly was entitled to find almost conclusive was the reading of the transcript of November 11 that which appears at pages 5 through 8 of our brief.
The -- merely reading of that transcript, we believe, discloses makes it entirely clear in the dealings between petitioner and Vick, exactly who it is, who was the Svengali and who it is who was Trilby.
It's quite clear from that conversation that Vick was reporting to his master and asking his advice as to what steps to take next.
In light of all that evidence, of course, we are not contending that there was no evidence to go to the jury but in light of all that proof, our burden is certainly satisfied sufficiently to warrant the submission of the issue of entrapment to the jury under proper instructions and that's what we've done in this case.
Let me now turn to the petitioner's subsidiary challenge on the entrapment issue which is the rebuttal testimony introduced in answer to the entrapment claim was improper.
Petitioner focuses on the two bits of rebuttal testimony which are the affidavit of Vick in which he related according to his story the conversation that he had with petitioner on November 7 which was, according to Vick, the very first time that he ever mentioned to petitioner that his cousin was on the jury and the judges testimony that they had authorized that recording.
Now I think it's important, just preliminarily, that to make clear that the judges in no way testified that they believed that petitioner was guilty of attempting to bribe the juror.
Their testimony was very severely limited.
The Government did not attempt to introduce any opinion, evidence of their part to guilt or innocence of the defendant in any way.
They testified merely as to what was done on November 8: that the Government prosecutors came to them, advice them that they had an affidavit from a man who said that petitioner was attempting to bribe the juror and that the Government didn't know what do to in those circumstances and that the prosecutors themselves could not, in light of the petitioner's good reputation, in light of petitioners standing in the national bar did not know whether to credit the story.
When the judges testified that having read the Affidavit, they authorized the prosecutors to send Vick back in with a tape recording.
Now, the judges' testimony was --
The reason, Mr. Justice Harlan was really because the prosecutors realized that this was a matter going into the integrity of justice in the Middle District of Tennessee.
If the Government had been seeking merely the equivalent of a search warrant, and that was also part of our purpose in court, but if they'd been seeking merely the equivalent of the search warrant, then of course, it would have been adequate to go to one judge or to a commissioner.
But since this was a matter which went - - both because it involve an officer of the court and because it involve charges of jury entrapping, it went to the integrity of justice, of the administration of justice in that court, the Government felt it was appropriate to bring it to the attention of the - - and affect the whole Court in the Middle District of Tennessee which was both Federal District judges.
Didn't they both have a jury panel that might be used in the case to it?
Yes, they both had.
Well, the jury panel would have been Judge, as an initial matter, the case was assigned to Judge Gray in the Middle District of Tennessee because Judge Miller had refused himself.
But there was a possibility that if Judge Gray's panel had been exhausted, that the jury panel in Judge Miller's courtroom would be called upon to serve on Judge Gray.