Earl Warren: Number 29, Z.T. Osborn Jr., petitioner versus United States. Mr. Kossman.
Jacob Kossman: Mr. Chief Justice, may it please the Court. This case represents an object lesson and how law enforcement should not be carried out. It involves the use of a concealed tape recorder, it involves entrapment, it involves a decoy but most disturbing of all and perhaps the most disturbing feature of almost any case that I can recall is the use by federal prosecutors of two federal district judges to investigate and to convict a petitioner. We can live with the concealed recording machines. We can live with entrapments. We can live with decoys. But our nation, as we know it, cannot exist when federal district judges associate themselves in the investigative stage and at the trial. Now I think I can best assist this Court in first concentrating on the essential facts of this case. And petitioner was indicted with three counts of obstructing justice. The second count, he was acquitted; the third count, the Government dropped before the trial; the first count and the one he was convicted reads as follows, “That he did corruptly endeavor to affect, obstruct.” The next read as follows -- in effect be -- just follows and skip a little language and impede that do administration of justice in that he did request counsel and direct Robert D. Vick, the contact, Ralf A. Elliott, Vick's cousin, a member of a jury panel and to offer and to promise to pay Elliott $10,000 to induce -- to set Elliott to vote for an acquittal if he should be selected to sit on the jury. Who is this man Vick that Osborn talked to? Vick was an investigator for Osborn back in 1962 when they were investigating a jury panel in order to determine race, religion, occupation. Vick also was a member of the Police Department, on the Sheriffs Department. Vick also did private investigations, divorce cases and what not. But Vick in this case was, although the Government denies it, was working for the Government. When I say they deny it, they say he was no agent of the Government. They displayed an attempt to repudiate Vick even though they've gotten the benefits of his work, I don't think speaks well and I left the record conclusively prove that he was an agent of the Government. In fact he said so. Now, back to Vick, in June of 1963 --
Earl Warren: Before you get to those facts, you said something about Vick being a police officer, was he a police officer at that time of the --
Jacob Kossman: The first words he said when they asked him his occupation is, “I'm a police.”
Earl Warren: Well, and you mean the defense employed a policeman to investigate the case for the defendant?
Jacob Kossman: Nothing wrong! That's what --
Earl Warren: Isn't there?
Jacob Kossman: And nothing wrong because all they were asking was statistics, race, religion and occupation. I mean nothing wrong. He was a city policemen that wouldn't be -- and of course Osborn didn't know the second time around that he was working for the Government. The first time around, he was simply a policeman. But there's a part time, let's call it moonlighting, that policeman or deputy sheriff can make this ordinary investigations. Actually, he was one of the group of four or five or six investigators.
Earl Warren: All policemen?
Jacob Kossman: No, not all policemen. But I think that the (Inaudible) -- well, as far as the petitioner is concerned, that he wasn't afraid to have a law enforcement officer check up on the qualifications of jurors. And there was no idle gesture. In fact, the motions were filed, denied. Court of Appeals, in their opinion, denied the -- on the basis that the jury was illegally drawn, suggesters and whatnot and indeed this Court refused to consider one of the points when it came up, whether the jury have been illegally drawn. But he was a policeman and that this is a little unusual but Nashville is a small town and after all a policeman would have more ways of getting information than an ordinary citizen, the same as the Government use postmasters, when I say the Government, I'm wrong. Same as the court use of postmasters as suggesters even though -- to pick the jury even though they were close to the Government on the ground there as they stated in the record that postmasters would know more about individuals so they could pick. And then --
Hugo L. Black: (Inaudible) what?
Jacob Kossman: I beg your pardon?
Speaker: I didn't get the word, “suggesters”?
Jacob Kossman: Suggesters in picking the jury panel of the -- they were postmasters. This is not an issue in this case. It was originally at the lower level and in the Court of Appeals but we abandoned it at these levels. But they have suggesters who are postmasters. Where they had, I don't know in the light of the recent decisions, they have abandoned that. At any rate, this Vick, rep -- in June of 1963 and the facts are so important here because the -- that the law follows automatically, it's very simple in terms of entrapment and decoys when we get the facts. In June of 1963, Vick reported to the F.B.I. that he -- this is very important than working all of the previous week for petitioner were now in 1963. Mr. Osborn, the petitioner's client and others had been indicted in May of 1963. Vick reported to the FBI that he had been working for all of the previous week for petitioner and indicated to them that he wished to cooperate with the Government and make any information available that he had. Now, he was told, in all fairness, that since he works for an attorney, who was representing the defendant who had been indicted, they would not avail themselves of the services. Vick then called Mr. Sheridan, who was a special consultant to the Department of Justice, a non-lawyer and I understand that that job is no longer in existence, and asked him for an appointment. Sheridan met him at the very courthouse that the petitioner was tried. And Vick, at the trial, was asked this question, “You were afraid you would lose your job?” That is as a policeman. “You came to Mr. Sheridan to give you a clean bill of house and he said he would give it to you if you made these investigations. Then after that, you went to Mr. Osborn to employ you because you had bills. Is this the way it came in sequence?” Vick answered, “That could have been the way it happened. It probably was.” Now, in August --
Speaker: Mr. Kossman, was he disposed --
Earl Warren: He would've lost what job?
Jacob Kossman: The police --
Earl Warren: As policeman.
Jacob Kossman: -- and the deputy sheriffs were merging. Vick was pretending that he was going to lose the job to Osborn and he needed money badly, and he had bills – the record is very clear there --
Earl Warren: That is, he is going to lose his job as a policeman?
Jacob Kossman: As a policeman. He had bills, he was hard-up when he reemployed him because it's on the record, uncontradicted that at that particular time, Osborn did not employ him for this forthcoming trial; that Osborn's client that was scheduled tentatively sometime in fall.
Abe Fortas: Now in --
Jacob Kossman: In August --
Abe Fortas: -- in your previous statement of the advanced indicates to me that you've already told us that Osborn was employed by -- I mean, Vick was employed by Osborn prior to the term that Vick went to see Mr. whatever, Sheridan, whatever his name is. Is that right?
Jacob Kossman: Yes, that's correct.
Abe Fortas: But the record, you say -- and then you point to the record to the contrary.
Jacob Kossman: Well, no.
Abe Fortas: Well, that's what I'd like to (Voice Overlap) --
Jacob Kossman: I'm sorry -- -- I left that impression. He did a job in 1962 then he stopped working. Then he came back to Osborn and worked as I read that particular portion, “In June, he had worked a week.” Then he --
Abe Fortas: June of '63?
Jacob Kossman: Of '63.
Abe Fortas: When did he see Sheridan?
Jacob Kossman: He saw Sheridan -- and I was just coming to it -- in July and August of 1963. But there's a distinction that Vick himself through all that time when they asked him, “Did you work for the Government?” He distinguished between Government, F.B.I. and Mr. Sheridan.
William J. Brennan, Jr.: But Mr. Kossman, he was not working for Mr. Osborn didn't he at that time he went to see Sheridan, was he?
Jacob Kossman: That is co --
William J. Brennan, Jr.: He had been maybe a month or two earlier --
Jacob Kossman: Well --
William J. Brennan, Jr.: -- or whatever the time was.
Jacob Kossman: Well, but he had been working for the -- Mr. Osborn when he went to see the F.B.I. In other words, he -- when I put it this way, that particular week that he went to see Mr. Os -- that he went to the Department of Justice in June of 1963 and that's on the record 251 --
William J. Brennan, Jr.: He was then working for Mr. Osborn?
Jacob Kossman: Yes, just for a week.
William J. Brennan, Jr.: Yes, but --
Jacob Kossman: And he went to the FBI.
William J. Brennan, Jr.: Was the F -- or whoever they were, just this F.B.I., whoever it was, said they didn't want to have any business with him.
Jacob Kossman: And they didn't want to have --
William J. Brennan, Jr.: That's right. And then, he was no longer working for Mr. Osborn.
Jacob Kossman: No, he is no longer working for Mr. Osborn.
William J. Brennan, Jr.: And then he came to Mr. Sheridan.
Jacob Kossman: Now he came to Mr. Sheridan in August and September of 1963. In August and September of 1963, Vick had several conversations with Sheridan, who is I think with the Department of Justice, special consultant and in charge of certain investigations in Nashville. But to place these -- those conversations, narrate in a shorthand way, Vick said that he wanted to clean (Inaudible), that he wanted a -- that he was going to work for Osborn, and that he wanted to turnover any information that he could to the Government. Sheridan agreed with these limitations saying that he wanted reports only on illegal activities. And Sheridan's own words, Sheridan says, “If you become aware of any illegal activities, I would like him, meaning Vick, to represent me.” Now the plot thickens, we're now in September 1963, the middle of September 1963 two months before the charges -- indictment. In September of 1963, while Vick was not working for Osborn, Vick approached another Nashville lawyer, a Mr. Wallace, with the jury list. The jury list came out in the middle of June for the approaching case involving Osborn's client. And he said to this lawyer Wallace that he had a cousin on the list. And asled whether this juror held out for an acquittal, would it be worth $50,000 to Osborn's client. Wallace refused to have anything to do with it but about two months later, after Osborn has been disbarred in consequences of the matter stated in indictment, Vick told Wallace that his assignment had been to get the petitioner and Wallace but that he had only gotten the petitioner. But, we're now in the middle of September but as Vick admitted and that's on 223A and 259A and 260, petitioner had not reemployed him. Again, he went repeatedly to Osborn and begged him and finally, he succeeded in being reemployed by Osborn on October the 28th of 1963. Now, October the 28th, 1963 his agreement had been with Sheridan that he would only report illegal activities. As soon as Vick was appointed -- hired on October 28, 1963, immediately called up Sheridan, said, “I got the job.” Sheridan was in Washington.
William J. Brennan, Jr.: Sheridan what?
Jacob Kossman: That Sheridan was in Washington at that time.
William J. Brennan, Jr.: Was in watching?
Jacob Kossman: He was in Washington.
William J. Brennan, Jr.: Oh, was he?
Jacob Kossman: I'm sorry. Now, this is important. Vick was given the last pages of the jury list in Judge Miller's courtroom. Now this case was listed for Judge Gray. There are two district judges in the Middle District of Nashville, Tennessee, Judge Miller and Judge Gray. Vick was given the last pages of the jury list in Judge Miller's courtroom because the case was not assigned to Judge Miller; it was assigned to Judge Gray, he gave them the bottom -- paid the jurors there. True, there was a possibility of all the jurors that have been exhausted and Judge Gray, they might have called someone from Judge Miller's jury list. But, that was the condition that Mr. Vick was hired and that becomes very important. As I say, Vick immediately repaid this kindness of Osborn by immediately calling up Sheridan and told him he was hired. Now comes a stronger point. In fact, it's so strong that the prosecution studiously avoids mentioning it in their brief. One week before Vick was employed -- we're now back on October the 21st. I'm sorry that I can't give it in a chronological order but that's the way the record shapes up, one week before Vick was employed on October 21st, he had a meeting with Sheridan in Nashville. What took place at that meeting? We know thus much about the meeting. Vick told Sheridan, Government man, the special consultant to the attorney general, that he had a cousin Elliott on the jury list. Not Judge Miller's list but on Judge Gray's list. Now, this is very important not only because he had the discussion with Sheridan, certainly no illegal activity, that all that Sheridan said he wanted to hear, but because Vick thought it was so important because he testified falsely about it during the motion to suppress and at the trial. He was asked, “Did you ever mention to the Government, to Sheridan, to anyone that Vick -- they're talking to Vick -- that you had a cousin on the jury.” He said, “No, sir.” Question: “No living human being?” “No, sir.” 130A, 131A, 343A. At the actual trial, he was asked these questions surprisingly on redirect examination by the prosecutor: “Mr. Vick, I want to ask you just a very few questions.” That time of -- well, I don't take the time to read it, but he denied, since I never mentioned Elliott discussing on the jury to the Government. And here of course, as the records shows completely, 348A, 349A, because Sheridan put in the Vick's report that he had a discussion with Vick and Vick on October the 21st, one week before he went to work for Osborn, told Sheridan of his cousin who was on the jury as well as discussing other members on the jury. Now, Vick testified that the first time and of course the rule of the jury's verdict we accept that, the first time that he mentioned Elliott, his cousin, to Osborn, was on November the 7th. Petition arose to the bay and told Vick, to see Elliott and get him on our side. Vick said he would see Elliott. In fact, he did not and as he testified at the trial the whole thing was a pretense, never had any intention of doing it and he admittedly reported this conversation of November the 7th to Sheridan, called him in Washington collect.
Earl Warren: Was this man his cousin?
Jacob Kossman: It was his cousin.
Earl Warren: It was his cousin?
Jacob Kossman: It was his cousin -- or second cousin, as they say -- a suggestion but he was related to him. It was reduced, this statement of Osborn to Vick in Affidavit form, in fact the court's stenographer took the affidavit. And the prosecutors then took the affidavit to the two fed -- to the federal district judges and in their words, speaking at the trial of Judge Gray, talked into the prosecutor, one of the prosecutors, because I was advised by my secretary that Judge Miller and Mr. Neil had been attempting to attack me. And you and Mr. Neil advised me that you did propose that if Judge Miller and I authorized that they conduct further investigations in the matter to determine whether it's true or false these charges were made. And you were proposing to send this man Vick back with the recording machine. And Judge Gray testified. I told -- as I told you as far as I was concerned, it would be entirely proper. Judge Miller testified when this matter came to his attention, November 8th in the form of an affidavit by a person that he never knew, he's decided the best course to take was to allow a tape recorder to be used which will either clear this man or prove he was guilty. That was the testimony on rebuttal testimony at the trial. Of course, there was a different judge sitting, two judges having disqualified themselves in the Gordon, Judge Boyd from Memphis. Vick then have more conversations with petitioner concerning Elliott acting under the directions from Sheridan who told them play this matter by year. On November the 11th the recording was finally made and the transcript of that recording was immediately shown to the judges who had authorized the carrying of the recorder. The upshot that was -- that in consequence, three separate hearings, petitioner was disbarred and shortly thereafter was indicted, petition with the first hearing, denied to the judge that when they asked him if he knew anything about jury tampering, he denied it. They are explained out of the sense of loyalty to Vick but he didn't want to hurt them. Not condoning what he said at the recording, session, I'm not condoning what he said to the judge, the disbarment can be condoned but neither can the Government's actions be condoned. The (Inaudible) price to sustain this conviction is too high. Finally, at the third meeting he gave his version which was just fancily the same as that that he testified at the trial. Petitioner was disbarred and shortly thereafter was indicted by appropriate motions and objections to suppress to the mission of the tape recording that raises the first legal question that I wish to discuss here. Now, I recognized that under the Arnely (ph) and Lopez case, the concealed recorder was admissible.
Earl Warren: Before we get to that, did the Government pay this man for his testimony?
Jacob Kossman: They say they did not but he was, as he testified, on special assignment, drawing $350 or $400 a month from the police department without doing a leak of work except testifying at the trial.
Earl Warren: I know but the -- his superiors detached him from other service to help the Government in this trial?
Jacob Kossman: Well, the record shows that he didn't do any work. When he was questioned by defense counsel, “Isn't it a fact that the chief called you when you didn't go to work and you got hold of Sheridan and Sheridan says, don't worry I'll straighten it out.” He says, no, no but he admitted that he never did -- of the work but he was drawing the salary and playing golf; that we know. But the Government did not pay him so far as we know by check or cash. We don't know that. But he was getting money from that police.
Earl Warren: Did the -- did his chief know that he was working for Osborn?
Jacob Kossman: His chief?
Earl Warren: Yes.
Jacob Kossman: Oh, you mean during the particular --
Earl Warren: I mean the chief of police that he worked for?
Jacob Kossman: Oh, yes, as a matter of fact, I believe the -- no, was the ex-chief of police who had done some investigations himself but --
Earl Warren: No, let's don't talk about that. The ex-chief of police, he was working for the Chief of Police. Did it -- did his superiors in particularly, the chief of police know that he was working for Osborn?
Jacob Kossman: Yes, because he was afraid he'd be fired on account of --
Earl Warren: Where do we find it in the record?
Jacob Kossman: We find that in the record where --
Earl Warren: Where?
Jacob Kossman: It -- where Vick had said that he was worried because coming under the stigma of having worked in the Hoffa case, he would be fired. So in that sense he knew.
Earl Warren: Well, if --
Jacob Kossman: In that sense he knew.
Earl Warren: How do you know that the chief knew?
Jacob Kossman: Well, I have no direct testimony that I can recall.
Earl Warren: There's nothing in the record that the chief knew?
Jacob Kossman: That's correct.
Earl Warren: What did Osborn pay this man?
Jacob Kossman: The record isn't clear either on how much he paid him. It was so much of an investigation. See there was --
Earl Warren: Well --
Jacob Kossman: -- moneys that he had paid on ‘62. In terms of this investigation, it seemed that he owe them about $700 or $800 for the investigation that he made during this period of time in '63 that he was reporting to the Government, to Sheridan.
Earl Warren: Well, isn't the police officer entitled to report to the Government if that's far as it goes?
Jacob Kossman: No question about it. We don't say that -- we don't make an issue that he didn't have a right to report, I'm not talking about betraying attorney-client relationship or anything of that. We don't say that a man doesn't have a right to report something illegal. We don't say that. We say there is a difference between reporting, informing and tempting and beguiling and entrapping. That's the distinction that we made.
Earl Warren: But you do contend, do you not that as a policeman, he had the right to accept the employment for a defendant in a felony case?
Jacob Kossman: Yes. We --
Earl Warren: You do insist?
Jacob Kossman: In the case --
Earl Warren: Where did you get that --
Jacob Kossman: Well, when I --
Earl Warren: -- any such story?
Jacob Kossman: -- when I put it this way. It wouldn't be a conflict of interest because it would not --
Earl Warren: That are you saying --
Jacob Kossman: -- because this was a city policeman and here's a federal case. It might not be proper as I can see in the circumstance. On the other hand, all that he was looking up and that filing reports was age, occupation, race, religion and things of that nature. In other words, it wouldn't be that what he was looking for was something that would be confidential that would help the petitioner that he wouldn't be entitled to. And he was I say one of the others. But this is important as far as this case is concerned, Osborn didn't want to hire Vick.
Jacob Kossman: Vick begged for the employment.
Earl Warren: Well, wouldn't Osborn know when he suggested to Vick that he got in touch with his cousin for the purpose of fixing in on the trial? Wouldn't he know that he was conflicting with his duty as a police officer?
Jacob Kossman: Well, if there's no question about it that spelled out what Osborn said aside from the entrapment feature --
Earl Warren: Well --
Jacob Kossman: Aside from the use of the concealed recordings, aside from the interference by the judges, there's no question about it that what Osborn said to this particular person was criminal.
Earl Warren: Alright.
Jacob Kossman: No question about that specially the carrying on, the last conversation. Now, the first point has to do with concealed recording. Now, I recognized that under the On Lee and Lopez case, the concealed recording was admissible. Now, we've indicated in our briefs some of the reasons why we believe that these cases should be overruled and that the Fourth Amendment, certainly together with the Fifth Amendment, should be held to preclude the use of electronic devices for the purpose of securing testimony from a prospect, of defendant, to be placed -- played in the criminal trial. Now, as this Court is familiar with the contentions on both sides on that tape -- time to fully repeat it. I must say this, the Lopez case was decided 1963. This is 1966. Certainly, I guess Thomas Edison would be amazed to see what has happened on the last couple of years in terms of electronic researches. Individuals are simply powerless against electronics snoopers. It has been stated that freedom is not something which has to be safeguarded but rather something which has to be extended. Now, freedom confined to the status quo cannot grow; freedom which cannot grow withers. Now, something has to be done. This Court has the power aside from constitutional grounds, the power over the administration of criminal justice in the federal court. Prosecution states in their brief that this was an ordinary small recorder. It makes no difference whether it's placed in a Martini glass or whether it's place on the pillow, whether it's a large bag, the principle is the same. Interference with, say privacy, the principle is whether third persons who cannot -- you see when you're talking to someone and he's got a bug on you, I mean you don't -- it's a little different than the Olmstead case where the court said that the intention was to protect your words outside of a room. When you're talking to somebody in a room and he's bugging you, you don't even have that particular intention aside from other grounds. But the chilling of private conversations is a -- its well as a British cartoons has put it in one of their magazines, he said, “Television isn't killing the art of conversation; it's this bugs.” Now, the there's only one way to guard against it and that's to shut ones mouth. There's a difference between this and talking on an extension phone where when you talk to someone, they picks up an extension phone, you have a right to anticipate that when you talk to a -- on a phone that someone will listen on the extension. That's not the problem involved. At any rate, if even if this Court doesn't wish to overrule On Lee and Lopez, it put this thing which Lopez on the ground that there the -- Lopez, when he talked to a man, he knew he was a government agent. He knew he was a government agent. Here, he didn't know. That's number one.
Potter Stewart: Osborn knew this man is a policeman, didn't he?
Jacob Kossman: But not working for the Federal Government. Furthermore, Lopez never contended and did never couldn't -- that the tax investigation was originally intended to entrap him. It was Lopez who started the ball rolling by saying, here's $200 you need it so on and so forth. Now, here you have a situation where the Government -- they don't need to talk about the police -- they say he was a private citizen not a Government agent. Now, of course he wasn't a government employee in the sense that he had taken the oath and there were payroll deductions. He was working for the Government; we have that in our brief and he was an agent of the Government, much as they might look to repudiate him. Now, this is very important, if the court pleases. In the Government's brief on page 26, to justify that they read to the federal judges took Assistant District attorneys. They don't go to the Unites States District attorney: they went to the federal judges. They say this. It was plain that the truth, this is the Government's brief, could emerge only if the Government had an impeachable proof of the content, a further conversations between petitioner and Vick. Any other effort to determine the facts would necessarily be beset by irreconcilable conflicts. It was in these circumstances --
Hugo L. Black: Where are you reading from?
Jacob Kossman: At page 26 of the Government's brief. It was in these circumstances that Government counsel who personally disbelieved Vick's report sought permission from the district judges to attach a device to Vick's person and to record the next meeting between petitioner and Vick. Well, first of all, they don't have to go to the federal judges. Lopez was the law. What's this nonsense to say that they had to go and get authority while they are investing some -- investigating someone from federal judges to authorize? The F.B.I. knows how to investigate. They don't have to bring in federal judges. The two federal judges, specially one federal judge who is in charge of the grand jury and the other fed -- and the same federal judge who is the trial judge in the forthcoming trial --
Abe Fortas: Mr. Kossman, wasn't it -- were these the judges who's Court processors allegedly were being -- what shall I say, corrupted if this was true?
Jacob Kossman: If this was true, they would --
Abe Fortas: And wasn't it -- does the record also show, if I correct as I recall, does the record also show that both the Government prosecutor, Mr. Buker (ph), I think it was and the two judges initially disbelieved Mr. Vick's report?
Jacob Kossman: That's what the record shows but my answer is, it's still does not justify -- I'm not talking about the disbarment proceeding; I'm talking about the criminal proceeding. We're concerned with the criminal proceeding not a disbarment proceeding. And this case that they cite on page 27, United States versus Ventresca, this Court is equally concerned to uphold the action of law enforcement officers. That has to do with investigators of alcoholic tax units. What are we doing with federal judges with prosecutors and investigators? Well, at any rate, now as I say I come to what is the most disturbing features of this case, the collaboration on the business of tracking down a suspected offender between the prosecutors and the one hand and the district judges on the other hand. If the telling to Sheridan of the conversation, it was put in affidavit form, Sheridan then gave it to the prosecutors who gave it to the judge, who authorized attaching the recorder for additional investigations. Show me one case in the whole country where federal judges have done that. After which Vick, knowing about the court's authorization, it's on record 261, even Vick knew that the court had authorized it. He went to see petitioner again to confer about Elliott and this time and this is the charge that he is indicted for which is very -- well, November the 11th not the first charge, pretending that he had seen Elliott and same money and all that. Of course, they never saw him as he said he never had any intention. Now, the recorder did not work that time. It finally worked on November the 11th after petitioner had been thoroughly sought enough of these conversations. And it was this final conversation that is spread at length in the opinion of the court below. Now, as I say, I don't condone what's said there. But it must be remembered that Vick said to Osborn, “My cousin is on the jury.” It's most important to remember that he'd -- in the affidavit and the record speaks for itself that he swung into the conversation about the jurors of Judge Gray. His business was not talking about Judge Gray, he wasn't to investigate the jurors on Judge Gray, he was to investigate the jurors on Judge Miller. But as Vick said, I got into a conversation about the jurors in Judge Gray. Now he was working for the Government when he said to him, “My cousin is on the jury.” That was not a job that Mr. Osborn, the petitioner hired him. At any rate the Government seeks --
Earl Warren: Is that the basis of the entrapment that he said that?
Jacob Kossman: Oh, that's part of the basis of the entrapment. The -- my basis of entrapment goes further than that. My basis on the entrapment goes, number one, that when Vick said, “My cousin's on the jury.” He wasn't giving him a piece of information for the sake of giving him information. He was, as he himself said, “I've said it to him I wanted to know what his intentions.” Well, its not --
Earl Warren: Isn't that a jury argument?
Jacob Kossman: If the Court please, we say as a matter of law. It's a subtle entrapment in contacts with the entire feature of it here. Vick on the October the 21st had explained to Sheridan that Vick was on the jury -- his cousin. Now, Vick also said, and it's a matter on the record that Vick said that he had a conversation with Sheridan and Sheridan had said the only way they can win the case, they must get rid of Osborn. That is also in the record although Vick said it's true he said it but he said, “I lied when I said it. The conversation didn't take place.” Now --
Earl Warren: What was Osborn's immediate response to the statement of Vick that he had a cousin in the jury? What was his immediate response?
Jacob Kossman: His immediate response was, “Go get him, see him on our side.”
Earl Warren: What does that mean?
Jacob Kossman: That man -- that would -- itself would mean in plain English the same, “Let's try to bribe them, let's try to obstruct them, let's try to influence them.” No question about that. But, what meaning did Mr. Vick have? It's the conduct of the Government that's in question here. We can have a situation where the Government sends around agents tempting people in order that if they succumb a case is to be made, that's not the business of government agents. And the Government's effort, as I say -- to say that Vick is not a government agent shows that they are conscious of that. What right had Vick to say that?
Earl Warren: Do you --
Jacob Kossman: Don't forget Vick had told to Wallace in September, Vick had told another investigator, “Polk, I got a cousin on the jury.” Vick had worked from October the 28th to November the 7th and Osborn never told him to do something wrong. Finally, Vick said, “I got a cousin on the jury.” Who's doing the entrapping? Who is the bad person?
Earl Warren: Did the court instruct the jury on entrapment?
Jacob Kossman: The court instructed the jury entrapment but we say as a matter of --
Earl Warren: What did they instruct him?
Jacob Kossman: The instructions if the court please were that -- where the standard instructions of an entrapment if you believe that he was entrapped, therefore, you could -- you must find them not guilty. In other words, left the question of entrapment up to the jury but we say, as a matter of law, that no government agent has a right to become a tempter, a serpent to beguile people, the test is not whether he should have been strong enough to resist it. That he should have chased him away. That's not the test. The test cannot be that. The test has to be in looking at that particular individual, that he have a right to say to him, “My cousin is on the jury.” Well, now this is extremely important. The Government on its brief on page 47 states as follows, “In his dealings with petitioner, up to and including the crucial date of November the 7th, Vick had engaged no material deception.” Just think of this. They say Vick had engaged no material deception. Here was Vick way back in February, reporting to the -- as of February 1963, when he was doing a side work -- job for Osborn reporting to the FBI, that's a matter of record. Then in June, then in July, in August, yet they say in his dealings with -- up to and including the crucial date November the 7th, Vick had engaged no material deception. I'm old-fashioned enough to believe that if you work for someone, you owe him loyalty. Now, this has nothing to do with telling the -- reporting to the Government something crooked. Don't forget up to November the 7th there hadn't been anything that had been wrong. Yet, he was reporting to the Government; the Government said, “Only report illegal activities.” When he talked on October the 21st to Sheridan, was that an illegal activity, the fact that he was -- his cousin was on the jury? Now, the next thing --
Earl Warren: Did Mr. Vick report any of these affairs of his with Osborn to the chief of police?
Jacob Kossman: No.
Earl Warren: Why?
Jacob Kossman: That -- not that I know of.
Earl Warren: Why?
Jacob Kossman: I don't know. In other words, the chief of police as far as --
Earl Warren: Whether you have no -- would the chief of police have no interest in assisting the Government in the --
Jacob Kossman: Well, the chief of the police must have had an interest in assisting the Government because he sought to -- that us -- that Vick was getting paid without working. So if I -- we have to read into record that although it's not spelled out that the chief of the police, they don't allow a man to collect $300 or $400 a month, so he must have known that he was doing work for the Government. In fact, Vick so testified that, “I was on special assignment.”
Earl Warren: Well, if he was doing that and was working for the chief of police and the Government, as you say, he owes his loyalty to those who employ him, why would his loyalty go to the chief of police?
Jacob Kossman: But only if a crime had been committed.
Earl Warren: I beg your pardon?
Jacob Kossman: Only if a crime to report to the chief of police. But there was -- on October the 21st there was no crime. Why did he report to Sheridan that Vick's cousin was on the jury? The answer is that this was the basis and the set up for an entrapment. There couldn't be any fix in this case. The pro -- this -- Osborn didn't hire Vick in order to fix a juror. Vick took the job in order to fix Osborn. That's -- the record spells that out. He says so, Vick, “I had never intended to do anything. I only wanted to find out his intentions.” You can't go and set up people by finding out their intentions. Well, to come back now was this entrapment business. It was Vick who was the first one who subtly put very subtle the idea of approaching Elliott in the petitioner's mind. Not petitioner who originated the idea. It was the same idea that Vick had on successfully looked to peddle to Mr. Wallace back in September to another investigator, Polk when he had mentioned to them and they were -- said to Osborn, “I'm surprised they never told it to you.” It's on the same idea that Vick undoubtedly had when they talked to Sheridan on October the 21st. Why he didn't call up Sheridan and said -- and say, “I was hired” if there wasn't a plan? The most telling features of the plan are padlocked and to entrap the petitioner of these. First, he -- until confronted with the and too confronted with the Jencks Act document, Sheridan's report, Vick twice denied he ever mentioned Elliott to anyone. That was the real secret prior to mentioning Elliott to Osborn. Sheridan said of his understanding with Vick, an understanding that was reached well and advanced of his employment, “I want you to represent me.” Third, if the Vick with the hard locked story have succeeded in getting reemployed by petitioner and had advised Sheridan of the fact. Sheridan said, “Don't forget, just play it by ear and continue discussions with Osborn and report it to me.” Fourth, Vick admitted, “I was trying to find out what Mr. Osborn's intentions were and prove it make a case.” Fifth, if the petitioner had been disbarred, Vick boasted to Wallace that his assignment was to get Tommy. Now, we submit that of November 11th conversation that was recorded by Wick -- Vick, which was sent out at length cannot be considered an isolation. It's a terrible thing in isolation. It's a terrible thing taken in context but in the light of the foregoing facts, we say we come under the Sherman case when petitioner said to Vick the words on which this entire proceeding was premised. They were the product of the creative activity of law enforcement officials. We haven't -- that's why I say we have a case of entrapment here as a matter of law. Who originated the idea?
Abe Fortas: Mr. Kossman, was anything that anybody other than Vick or Osborn said recorded on this tape?
Jacob Kossman: Nothing that portend -- the girl said, “Hello! How are you?” This was --
Abe Fortas: In other words, the conversation here that was recorded on the tape, the material on the tape was a conversation solely between Osborn and Vick?
Jacob Kossman: That's correct!
Abe Fortas: Would there had been any evidentiary objection to Vick's testifying as to that conversation?
Jacob Kossman: None whatsoever. And, we make none. We don't make it an argument of the Fourth Amendment in terms of Vick himself to be unable to testify. Osborn misplaced, let's put it, his confidence in a person. But that doesn't justify the use of recorders or entrapment. Now, here is a person, the record is pitiful, here is a person who have left alone would have obeyed the law. Just no ifs or buts about it. The record is completely silent on it. Oh, yes, they bring up the bird coin. Now, he was acquitted of that. Now, the Government has seen fit to print the direct examination of Beard when he was acquitted and they say it still has some value although he was acquitted. We say if he was acquitted, you cannot use that as any evidence of the predisposition whatsoever. Now I made this mistake, a serious mistake, but unfortunately I believe I can correct it. On the notes of testimony of page 134 of Beard's cross examination which is not in the record -- the court, by 134 Beard had testified, well, that he would -- that Osborn wanted to give him ten thousand. He turned it down and then he turned it down in a nice way by saying, “I want fifty thousand. And he said he never reported this because “I was afraid I might be killed, my family might be hurt” and so on and so forth. That's what he said. Acquitted. Now --
Tom C. Clark: I'm sorry I didn't get who Beard was.
Jacob Kossman: I beg your pardon?
Tom C. Clark: Who was Beard?
Jacob Kossman: Beard was an individual that Osborn was charged with having contact with the goal try to see the husband of a juror in the second count, but he was acquitted of that. Now the Government, however, wants to make mileage on the fact even though he was acquitted, they wanted to show this is a predisposition in terms of -- to do bad things on the part of Osborn. So they printed the direct examination and I didn't have enough sense to print the cross-examination because I just didn't. But at any rate, in the cross-examination of Beard, here is Beard testifying that they gave us reason. Maybe it was true, maybe it was false according to the jury but at any rate, here is Beard back again in 1963 in 134, 135 working for Osborn again and he receives $60 on June the 12th 1963 and in June the 18th, 1963. So there --
Abe Fortas: What is this 134, 135, is that the record, printed record?
Jacob Kossman: That is the notes of testimony which I didn't --
Abe Fortas: We don't have that, do we?
Jacob Kossman: You all -- the certified copy of the notes of testimony would come up.
Abe Fortas: Well you -- those are the page of the original record?
Jacob Kossman: Those are the pages of the original record --
Abe Fortas: I see, (Voice Overlap).
Jacob Kossman: -- which I -- the Government printed in the end in the B forum. In fact, they even printed things they didn't have to. They printed the grand jury notes. Well, at any rate, so much for the Beard thing --
William J. Brennan, Jr.: Well, I must say that's gone over my head. What's the point you're making up here?
Jacob Kossman: The point is this, the Government is looking to make mileage even though --
William J. Brennan, Jr.: That added a predisposition to criminality?
Jacob Kossman: That he had a predisposition in the fact that --
William J. Brennan, Jr.: Yes, but you wound up by saying, “Here he is back working for Osborn again on some page.” Was that --
Jacob Kossman: Well yes, yes. In other words, Beard had said on the stand that the reason he didn't report the so-called approach --
William J. Brennan, Jr.: When that -- when was that suppose --
Jacob Kossman: -- in 1962, was before --
William J. Brennan, Jr.: Oh, that's in fact with another trial?
Jacob Kossman: Well, actually, it wasn't this indictment of which Osborn was acquitted, was a three-count indictment. But the reason he gave why he didn't report this unlawful act that he had said Osborn committed was because he was afraid he might be killed. You know the -- working for bad people and so on and so forth --
William J. Brennan, Jr.: Now you say later on --
Jacob Kossman: Now we find them back in June of 1963 doing an investigation for Osborn on a -- of course, this so-called, “Do indictment of (Inaudible) made in 1963.” That he made -- I'm sorry I have to take the time up to explain it but it's because the Government put it in and the -- and half the trial was devoted to the Beard case. So we have a situation where the Government spent half the time arguing to that -- here you had predisposition and the judge charged that you find that he was involved with this Beard thing you can say that's a sign, he was a bad person and so on and so forth and they get the windfall of a man -- of a person who was acquitted. So, therefore, we say at the least he is entitled to a new trial shorn of that prejudicial business of predisposition. When Osborn flatly said, “This man was a liar at the trial.” There'd be a conviction, I certainly couldn't argue that.
William J. Brennan, Jr.: Oh, for Osborn to employ him after that, would that be a reflection on Beard or Osborn or both of them?
Jacob Kossman: Well, I'll put it to you, Your Honor, I'm only using it to answer the argument that Beard said that he was afraid --
William J. Brennan, Jr.: You don't admit that Osborn employed him in June ‘63?
Jacob Kossman: Of all, he employed him.
William J. Brennan, Jr.: It's June '63?
Jacob Kossman: Yes, surely.
William J. Brennan, Jr.: Just as he testified?
Jacob Kossman: Just as he testified.
William J. Brennan, Jr.: I mean just as Beard testified.
Jacob Kossman: Just as Beard testified.
William J. Brennan, Jr.: Alright.
Jacob Kossman: Of course, needless to say Beard was not indicted in the transaction. Well, now, I'm coming to the last point and it's this, to be discussed orally. It's this, basically it's our position that the judges were not rebuttal witnesses but they gave opinion testimony. It was terrible. Here are two federal judges in the Middle District of Tennessee. Here is a jury drawn in the Middle District of Tennessee, with all that we've been told that the slightest words of a judge how important it is that how the -- and rightly so, how important it is in terms of affecting the decision of -- by a jury. Here are two judges, one stepping down from the bench, from his own courtroom to sit in the witness chair and the other saying, “I'm now sitting my courtroom” and they said in plain words “Osborn was guilty.” They said, “We wanted to make this investigation to find out whether he was guilty or not.” Now, it's no use saying its rebuttal testimony. The argument wasn't -- it's not rebuttal of anything. The disbarment proceedings and all that had been put in into the case during their case at chief. Why do they call the two federal judges to testify? In their brief they say, “Well, you know that might have been hearsay to putting them in.” Maybe it was but there was no objection on the grounds that it was hearsay. Might have been objections on other reasons but there was no objection. Now worse than that, they now take the affidavit that Vick had written. Here's an affidavit, they think there's special merit to that thing that it's sworn. Here's an affidavit that Vick had sworn to and they put that in evidence. In fact, the -- the judge interrupts the speech to the jury and passes it by, and passes it to the jury so that they can read it. Now why? Why should that affidavit, it's self-supporting? After all Vick had testified. True, Osborn had contradicted Vick but Vick didn't take the stand on rebuttal but this- its a different thing.
Abe Fortas: Suppose that they have gone, the Government --
Jacob Kossman: I beg your --
Abe Fortas: Suppose the Government prosecutor have gone to either Judge Miller or Judge Gray for a search warrant to search Osborn's office in probable cause, would that also be constitutional error?
Jacob Kossman: Well, first of all, if they want to go to get a search warrant, they'd have to get notice to Mr. Osborn. That's one of the features involved with electronic recording machines whether a search warrant -- they defend on the ground that they were a little bit of the dissenting opinion in the Lo --
Abe Fortas: You mean you have to give them notice?
Jacob Kossman: When you come with the search warrant.
Abe Fortas: No, but to get a search warrant. Is that what you are saying?
Jacob Kossman: No. When you get the search warrant --
William J. Brennan, Jr.: You have to execute it by (Voice Overlap) --
Jacob Kossman: And you bring -- execute is the correct word, you bring it to the person whose premises you want to search, you have to tell him. And that's one of the arguments that is now being debated. What can we do about it? I say that our way of life comes first and search warrants come second. At any rate, the Government tries to defend on the ground that this was kind of a search warrant because they went to tell the judge about it.
William J. Brennan, Jr.: Was there an actual order of the judge, he said to this counsel?
Jacob Kossman: No.
William J. Brennan, Jr.: No order?
Jacob Kossman: No order what --
William J. Brennan, Jr.: It's an oral authority to go do this.
Jacob Kossman: Just go do it, just go do it, their own words.
William J. Brennan, Jr.: Your point is, if there had been some form of order. If you're going to draw an analogy to a search warrant and the form of order should have been served by Vick on Mr. Osborn before he --
Jacob Kossman: Before he came in with this little midget. Now, here's something else, you see this is a -- what bothers me is this, it's just a scheme. They didn't need the judges. Under the law of that kind, all that Sheridan, all that the prosecutor had to do was to say and still is the law as of this moment. Here, here's the recording machine. In the Lopez case, they didn't run to a federal judge. In the On Lee case, they run -- didn't run to a federal judge. They had no right going to the federal judge and the federal judges had no right yielding and -- to the District attorney's ex parte conversations. And that's something that this Court in the supervisory capacity should give an order that prosecutors should not run around to federal district judges and have conversations and do things not only limited to this expression. Now, why is this a terrible thing? Here is Vick's bad reputation as a liar. Even the judge himself at the trial just -- as I don't know, I can't make out a tale out of it so to speak. Now, here are federal Judges who were given opinion testimony. Because -- why do I say opinion testimony? They said we wanted to investigate whether that he was guilty or not. We disbarred him. Well, people aren't disbarred for good conduct. I mean, they knew he -- they would disbar because these judges felt he was guilty. That's why the District attorney's put these two judges on the stand. I don't say these judges willingly went on the stand but they went on the stand. And the prosecutor had no right in a live case to use, misuse federal judges for their purpose.
William J. Brennan, Jr.: Mr. Kossman, could you -- I don't understand, how did Vick's affidavit get in in the middle of the instructions of the jury? I don't (Voice Overlap) --
Jacob Kossman: (Inaudible) instructions just when they started to the speeches, so the judges reversed themselves.
William J. Brennan, Jr.: (Inaudible)
Speaker: (Inaudible)
Jacob Kossman: That's on page 6.
Hugo L. Black: Was it an exhibit or something or what?
Jacob Kossman: It was an exhibit. Just before Mr. Buker (ph) started to talk --
William J. Brennan, Jr.: Oh, that that's --
Jacob Kossman: Oh, here it is, page 664. Court reopens Government's case.
William J. Brennan, Jr.: Oh!
Jacob Kossman: Mr. Neil, I'm about to overlook something, it's been called to the court's attention just before the noon adjournment.
William J. Brennan, Jr.: Oh, well, it was already in evidence?
Jacob Kossman: Yes.
William J. Brennan, Jr.: I see.
Jacob Kossman: But as I say it was put in evidence on page 653A. What the --
William J. Brennan, Jr.: But it was in evidence at that point?
Jacob Kossman: Yes, at first had been turned down. Then, had been put an evidence and in order to boost the rock, his oral statement, even though there was no contradiction between it --
William J. Brennan, Jr.: I take it you were objected and the objection was overruled --
Jacob Kossman: Oh, objected. Now the Government makes an argument they say, “Well, we asked for a limiting instruction. Why don't you ask preliminary instructions?” We don't -- we came this for a limiting instruction. We waived our right. We said that's not rebuttal, you have no right to put it in. The same is with the judges. They'd -- their testimony was not rebuttal of a thing, just not rebuttal of a thing. What did they testify? They want to know whether he is guilty or not and that's why they prove the charges. Now, the Government comes up with another noble argument in order to justify judicial intervention, a criminal trial. They say, well, it's a question of credibility and the judges had a right to testify in order to show that it was credible. What took place between Osborn and Vick? What did these judges know what took place between Osborn and Vick? They weren't present. They never even talked to Vick. How could they testify to anything except affidavit? What they have said in the disbarment proceedings was already a part of the case in the direct thing. Now --
Earl Warren: Didn't counsel concept to opening up the case and showing this exhibit to the jury?
Jacob Kossman: Well, actually, it already had been in evidence, if Your Honor please, so therefore an objection to open the case in order that some members of the jury, I guess hadn't seen this paper, would not have been particularly valid. There had been an objection to admitting the affidavit in evidence.
Earl Warren: Well, even objection wouldn't be valid, what's the objection here?
Jacob Kossman: Well, I'm only talking about the prejudicial effect, how it was compounded by the original admission of this affidavit. In other words, the objection was -- here is page 653A, “Do you have any objection?” Mr. Norman took an exception and they read the Exhibit 17. So, therefore, he had objected to it. Now, Mr. Buker (ph) on page 655A said, “We would like to pass this, if Your Honor please, this document of the jury.” And it says here in parenthesis, Exhibit passed to the jury for examination. Now --
Earl Warren: Yes, but before that, it says, of course, the court: Mr. Neil I'm about to overlook something here. It's been called the court's attention with just before the noon adjournment that some of the jurors had not inspected the certain exhibit and it has been read to them and I don't think it won't require but a -- just a few minutes to let those jurors, those in the back row, I believe read it. Is that agreeable to everybody?” Mr. Neil: It is agreeable to the Government. The court: We did say that we would afford the jurors that privilege if they desire to see that affidavit. Mr. Norman: It is alright for the defense.62:26
Jacob Kossman: I mean, which page are you reading from, Your Honor?
Earl Warren: 650 -- 655A.
Jacob Kossman: 655A?
Earl Warren: You said just before the summation.
Jacob Kossman: Corrected. If the court please, Mr. Buker (ph) We would like to pass this, if Your Honor, please. Now on 653A, Mr. Norman was objecting to this. Mr. Norman is objecting to this on page 653A. Now, Mr. Norman then says -- this is conversations here with a judge -- entrapment, I mean, the Exhibit already had gone in. 653A.
Earl Warren: Well --
Jacob Kossman: Do I make myself clear then?
Earl Warren: Well, are you directing this to what happened just before the summation by the Government and I was reading exactly what it said just about a dozen lines before that.
Jacob Kossman: On what page?
Earl Warren: 664A, I'm sorry, I mean --
Jacob Kossman: Oh, 664 --
Earl Warren: -- at the bottom. And I read over to 665A but there's no need to be --
Jacob Kossman: Oh, well, off course, don't you -- you're correct Your Honor but at that time already it had been admitted into evidence on page 60 -- 53A over the objection as to this business of allowing the two jurors to see it, who had missed seeing it. Mr. Norman did not object to that.
Earl Warren: I see.
Jacob Kossman: I mean, I'm sorry I didn't make it clear --
Earl Warren: It's alright.
Jacob Kossman: -- in that sense. Well, we simply say this wasn't rebuttal. It can't be justified even as an abuse of discretion. And in fact we say this, even if this was rebuttal in the case of the Government's side, it is in our side, not the -- even if it was rebuttal, it would be objectionable on the ground that it would be an abuse of discretion to have allowed that testimony by two federal judges in the Middle District of Tennessee who had disbarred the petitioner to testify, that they authorized these proceedings to know whether he is guilty or not.
Earl Warren: Mr. Lewin.
Nathan Lewin: Mr. Chief Justice, may it please the Court. This case concerns the conviction of petitioner, a member of the Tennessee Bar since 1940 on count 1 of an indictment alleging violations of the General Obstruction of Justice statute, 18 U.S.C. 1503. In the count on which he was convicted, petitioner was charged with having requested and directed one Robert Vick, a Nashville Police officer, who he had retained to investigate prospective jurors to offer a $10,000 bribe to a cousin of Vick's, who was a potential juror in a trial on which petitioner was scheduled to represent one of then five defendants. The charges on which the defendants were being tried involved four other endeavors, corruptly who approached jurors in an earlier criminal trial. And those charges resulted in the convictions of five defendants. Four of whom are before the court in the case immediately -- to be argued immediately following this one and on the fifth of which, the case on the fifth that which this Court denied certiorari last term and denied with a petition for rehearing just this past Monday. The Government's evidence at petitioner's trial consisted essentially of the testimony of Vick, the police officer; corroboration of that testimony in the form of a tape recording of the last of three conversations between petitioner and Vick on that subject and third, petitioner's admissions, partly false exculpatory statements which he made in the course of the disbarment proceedings which were conducted in the Federal District Court in Nashville very shortly after the events at issue here.
Byron R. White: If -- this has been referred to as disbarment proceedings, they were proceedings is to bar him from practicing in the Federal District Court?
Nathan Lewin: Only in a Federal District Court, yes. Proceedings in the state, to disbar him in the -- from practice in the state court have -- are still pending. And, I imagine, really being held in abeyance pending the argument in this case. Petitioner's sole defense at his trial was entrapment based largely on the claim that the entire course of conduct was part of a Government plot intended to disqualify him from representing James Hoffa in the forthcoming trial on obstruction of justice charges. That issue of entrapment was submitted to the jury under instructions to which petitioner did not object at his trial and to which he has interposed only the most technical and minor challenges which we rebut in our brief in this Court. Since the entrapment question was the major focus of trial and since petitioner's other major contentions are related in some way to the cases that immediately followed this one, it will be more exhaustively discussed in certain ways. In those cases, I would like with the court's permission to direct my argument, first to the entrapment issue and then in turn to the Fourth Amendment claims relating to the recording and insofar as the issues in succeeding cases here involved to those issues as well. And I would leave for conclusion for such time which has left petitioner's final contention which is not at all discussed in Mr. Kossman's oral argument that there was no obstruction of -- no violation of the statute here because the attempt was “factually impossible.” The principle contention relative to entrapment is that the evidence established that defense so conclusively that the issue should not even have been submitted to the jury. Now there are, of course, instances in which this Court has held, particularly in Sherman versus United States in 356 U.S. that that course is appropriate. This case, both on the testimony of Vick and we submit even on the testimony of petitioner as to what happened between Vick and himself is not one of those cases. The facts are not really complex but before even turning to those, I think it's important to dispose of a basic misapprehension which runs through petitioner's brief and through the oral argument. One of the much debated issues at trial or at least debated to some extent was whether Vick was an agent of the Government in November whether he was an undercover informant as of that time. And petitioner's counsel attempted on various occasions to get Vick to admit that he was an agent of the Federal Government when he was speaking with petitioner or indeed when he accepted employment from petitioner in October of 1963. Now, the extent of Vick's agency in that respect, whether he had been deputized by the Federal Government was certainly an element to be considered by the jury in determining whether there was any substance to petitioner's claim that this was part of large plot by the Government to entrapment into making statements. But we submit that on -- the issue now before the court as to whether there was entrapment as a matter of law, that question is really not seriously involved because even if the jury had concluded on the testimony that Vick had been deputized by the Federal Government or had been told to speak to Osborn, the petitioner in this case, the defense of entrapment would not be made out because the conversations between petitioner and Vick were such that -- under Vick's version, they couldn't know if it amount to entrapment and under petitioners they would at most amount even if made directly to a paid agent of the Government who isn't in the employ of the Federal Government. They would at most amount to an issue that would be submitted to the jury.
Speaker: Can you summarize what the judge's instructions as were as the jury on the entrapment?
Nathan Lewin: I think they were a standard form of instructions, Mr. Justice.
Speaker: Then?
Nathan Lewin: -- that the jury was told that if -- and an instruction in toto, I might say, appears in two paragraphs on page 697 of the record. And in short, the court instructed the jury that the idea of committing the crime that -- instructed jury that unlawful entrapment amounted to a course of conduct on which the Government originated the idea of committing the crime and without any prior disposition on the part of the defendant to commit it, he had been urged and induced by the Government so to commit it. And if the jury so found it was instructed to -- find the defendant not guilty.
Potter Stewart: Well, the --
Nathan Lewin: There was no --
Potter Stewart: The trial judge didn't talk about lawful entrapment --
Nathan Lewin: Well --
Potter Stewart: Is there such a thing as that?
Nathan Lewin: I -- of course the defendant didn't object to that particular use of the words. I think really what he meant was Government conduct which amounts to what this Court has called “Providing an opportunity for the commission of crime” and in the court -- this Court in Sherman spoke of drawing the line between a trap for the unwary criminal and a trap for the unwary innocent. And I think that's really what the court meant that lawful entrapment would amount to a trap for the unwary criminal. Unlawful entrapment of course is a trap for the unwary innocent, a man who would not otherwise have a disposition to commit the offense, commits it only because the Government has urged and induced them to do so.
Potter Stewart: But this was something short of the standard charge because the standard instruction doesn't -- or the ordinary conventional language in this area doesn't recognize something as lawful entrapment, does it? I've never heard of that.
Nathan Lewin: Well, I never heard of it before either Mr. Justice Stewart but I think from the whole context of the instruction its quite clear that the court was really intending to warn the jury that it need not acquit the defendant merely because he fell into a Government trap. The Government may use a trap. And that's -- and possibly the use of the word “entrapment” might otherwise under the standard instruction in some way confuse the jury into the believing that if there was any trap laid then the defendant must be acquitted. On -- just on the question of Vick's agency vis-à-vis, the Federal Government, and to clear up some matters that were raised during petitioners argument, I think I should make clear that there were some discussions in answer to the Chief Justice's question as to whether Vick was drawing his salary. Of course at the time of the incidence in question in this case, at the time that he was speaking to petitioner, and been hired by petitioner to do investigative work, he was in no way drawing any salary from the Federal Government nor has he ever drawn any salary from the Federal Government. The testimony which Mr. Kossman referred was testimony relating to what Vick was doing at the time of petitioner's trial. Now as of that time, in preparation for that trial and presumably because he was then being called on to be interviewed, and maybe appear before grand jury, he was excused from a state or city service and was on assignment in that section of the Federal Government.
William J. Brennan, Jr.: Well was he -- at the time of this incidence, (Inaudible) putting on a full days police work?
Nathan Lewin: So far as I know, at the time of the incidence, he was.
William J. Brennan, Jr.: Was there any evidence one way or the other?
Nathan Lewin: There's no evidence on the record to rebut the fact that he was. He did testify that he was a police officer. He had --
William J. Brennan, Jr.: And you suggest that all of this suggest to somewhat I think, I think its caused -- what he said “he was moonlighting” (Voice Overlap) --
Nathan Lewin: I think that's exactly what it was.
William J. Brennan, Jr.: And you (Voice Overlap) --
Nathan Lewin: Moonlighting, doing investigative work on the side.
William J. Brennan, Jr.: All power employment?
Nathan Lewin: Yes.
Hugo L. Black: On what case?
Nathan Lewin: Well, he was doing it all the time I gather during that earlier trial and for -- or at least the first part of the earlier trial in the fall of 1962. Again in around January or February of 1963, again for that short period of time that petitioner retained him in the summer of 1963 and then again in October of 1963.
Hugo L. Black: In different periods?
Nathan Lewin: Yes, they're all -- very all -- a very definite short periods, several weeks, several -- maybe a month or month and a half.
Potter Stewart: How did he get to be paid by Mr. Osborn --
Nathan Lewin: Well, that doesn't appear --
Potter Stewart: -- by the job or by the hour or by --
Nathan Lewin: As I understand he was paid by the day.
Potter Stewart: By the day?
Nathan Lewin: I imagine must be an eight hour day, maybe he --
Potter Stewart: Does the record show?
Nathan Lewin: The record doesn't show. I don't think exactly how it was. (Inaudible)
Earl Warren: And at the same time he was working for Mr. Osborn he was a police officer?
Nathan Lewin: Yes.
Earl Warren: And suppose, be working there?
Nathan Lewin: Yes, sir.
Hugo L. Black: (Inaudible)
Nathan Lewin: I don't know. Apparently, it was not a matter that he had gone into any detail at the trial so I suspect that is -- it's not considered that unusual maybe in Nashville. But I know that it is a rather surprising fact.
Abe Fortas: Does the record show whether Mr. Osborn knew that he was a police officer?
Nathan Lewin: The records don't show that, I don't believe Mr. Justice Fortas. They do show definitely though that Osborn knew as of the fall of 1963 that he had even spoken to Sheridan -- petitioner himself testified that he had spoken --
Abe Fortas: I know, does the record show that Osborn when he employed Vick or subsequently knew that Vick was a Nashville police officer?
Nathan Lewin: I think the record shows that he was recommended by one Ramsey, who was also an investigator for Vick. It may -- I'm really not sure. I think it does show that he was. That he did know that he is a police officer. I don't think it was a secret. I don't think anybody who was there in the investigation of --the whole team of investigators was not acquainted with that.
Potter Stewart: Doesn't the record show that he came to Osborn and said, “I'm going to be losing my job probably with the --
Nathan Lewin: Oh, yes, you are right Mr. Justice Stewart.
Potter Stewart: -- with the county police.”
Nathan Lewin: I don't know about the fall of '62, right. I think certainly -- definitely by the time of the events here, Osborn must have known, that's right from that state. The principal question on entrapment under this Court's and lower courts decision of course is, in -- this is the question that arise as nearly all the entrapment cases is what the conduct of the entrapper is vis-à-vis, the one who claims to be entrapped. In other words, the dozens or scores of entrapment cases all involve government employees who engaged in undercover capacity, who speak to a defendant and the question is whether they induced the defendant to commit the crime or whether the defendant himself was disposed so to do and all that the entrapper did was provide him with the opportunity to perform and commit that particular crime. And that we submit is what the central issue is before this Court at this juncture whether in his conduct with petitioner, Vick induced somebody who was willing to perform the crime and looking for an approach to a juror to perform it or whether he under the -- oh, under the evidence that were submitted to the jury or under all the evidence in the case was inducing the commission of a crime. We think that Vick's testimony makes it entirely clear and Vick's testimony certainly could be believed by the jury and under this Court decision in the Masciale case in 356 U.S., the jury was free to believe Vick's testimony and Vick's testimony was that it required nothing more to get petitioner to suggest to him an approach to a juror than the mere statement on November the 7th of 1963, “I have a cousin on the jury.” And that statement was true. And it caused petitioner to go out into the alley with him or out on the alley near his office with him to suggest to him that he approach that juror.