source: Caselaw Access Project

author: Mr. Justice Stewart Mr. Justice Douglas,

license: Public Domain

text:
    OSBORN v. UNITED STATES.
    No. 29.
    Argued October 12-13, 1966.
    Decided December 12, 1966.

      Jacob Kossman argued the cause and filed briefs for petitioner.

      Nathan Lewin argued the cause for the United States. With him on the brief were Solicitor General Marshall,

      Assistant Attorney General Vinson, Beatrice Rosenberg and Kirby W. Patterson.

      Herman Schwartz and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae.

   Mr. Justice Stewart

delivered the opinion of the Court.

The petitioner, a Nashville lawyer, was convicted in the United States District Court for the Middle District of Tennessee upon one count of an indictment under 18 U. S. C. § 1503, which charged him with endeavoring to bribe a member of the jury panel in a prospective federal criminal trial. The conviction was affirmed by the Court of Appeals, 350 F. 2d 497. We granted certio-rari, 382 U. S. 1023, primarily to consider whether the conviction rests upon unconstitutionally acquired evidence, although the petitioner also presses other claims.

In late 1963, James R. Hoffa was awaiting trial upon a criminal charge in the federal court in Nashville, and the petitioner, as one of Hoffa’s attorneys, was engaged in preparing for that trial. In connection with these preparations the petitioner hired a man named Robert Vick to make background investigations of the people listed on the panel from which members of the jury for the Hoffa trial were to be drawn. Vick was a member of the Nashville police department whom the petitioner had employed for similar investigative work in connection with another criminal trial of the same defendant a year earlier. What the petitioner did not know was that Vick, before applying for the job with the petitioner in 1963, had met several times with federal agents and had agreed to report to them any “illegal activities” he might observe.

The conviction which we now review was upon the charge that the petitioner “during the period from on or about November 6, 1963, up to and including November 15, 1963, . . . did unlawfully, knowingly, wilfully and corruptly endeavor to influence, obstruct and impede the due administration of justice . . in that he “did request, counsel and direct Robert D. Vick to contact Ralph A. Elliott, who was, and was known by the said Osborn to be, a member of the petit jury panel from which the petit jury to hear the [Hoffa] trial was scheduled to be drawn, and to offer and promise to pay the said Ralph A. Elliott $10,000 to induce the said Elliott to vote for an acquittal, if the said Elliott should be selected to sit on the petit jury in the said trial.” The primary evidence against the petitioner on this charge consisted of Vick’s testimony, a tape recording of a conversation between the petitioner and Vick, and admissions which the petitioner had made during the course of federal disbarment proceedings.

Vick testified that during a discussion with the petitioner at the latter’s office on November 7, he mentioned that he knew some of the prospective jurors. At this, according to Vick, the petitioner “jumped up,” and said, “You do? Why didn’t you tell me?” The two then moved outside into the adjacent alley to continue the conversation. There, Vick testified, he told the petitioner that one of the prospective jurors, Ralph Elliott, was his cousin, and the petitioner told Vick to pay a visit to Elliott to see what arrangements could be made about the case. Vick also testified to meetings with the petitioner on November 8 and November 11, when he told the petitioner, falsely, that he had visited Elliott and found him “susceptible to money for hanging this jury,” to which the petitioner responded by offering $5,000 to Elliott if he became a member of the jury and an additional $5,000 “when he hung the jury, but he would have to go all the way, and to assure Mr. Elliott that he would not be alone, that there would be some other jurors in there.”

I.

No claim is made in this case that Vick’s testimony about the petitioner’s incriminating statements was inadmissible in evidence. Cf. Hoffa v. United States, ante, p. 293; Lewis v. United States, ante, p. 206. What is challenged is the introduction in evidence of a tape recording of one of the conversations about which Vick testified, specifically the conversation which took place in the petitioner’s office on November 11. The recording of this conversation was played for the jury, and a written transcript of it was introduced in evidence. We are asked to hold that the recording should have been excluded, either upon constitutional grounds, Weeks v. United States, 232 U. S. 383, or in the exercise of our supervisory power over the federal courts. McNabb v. United States, 318 U. S. 332.

There is no question of the accuracy of the recording. The petitioner testified that it was a “substantially correct” reproduction of what took place in his office on November 11. There can be no doubt, either, of the recording’s probative relevance. It provided strong corroboration of the truth of the charge against the petitioner. The recording was made by means of a device concealed upon Vick’s person during the November 11 meeting. We thus deal here not with surreptitious surveillance of a private conversation by an outsider, cf. Silverman v. United States, 365 U. S. 505, but, as in Lopez v. United States, 373 U. S. 427, with the use by one party of a device to make an accurate record of a conversation about which that party later testified. Unless Lopez v. United States is to be disregarded, therefore, the petitioner cannot prevail.

But we need not rest our decision here upon the broad foundation of the Court’s opinion in Lopez, because it is evident that the circumstances under which the tape recording was obtained in this case fall within the narrower compass of the Lopez concurring and dissenting opinions. Accordingly, it is appropriate to set out with some precision what these circumstances were.

Immediately after his November 7 meeting with the petitioner, at which, according to Vick, the possibility of approaching the juror Elliott was first discussed, Vick reported the conversation to an agent of the United States Department of Justice. Vick was then requested to put his report in the form of a written statement under oath, which he did. The following day this sworn statement was shown by government attorneys to the two judges of the Federal District Court, Chief Judge Miller and Judge Gray. After considering this affidavit, the judges agreed to authorize agents of the Federal Bureau of Investigation to conceal a recorder on Vick’s person in order to determine from recordings of further conversations between Vick and the petitioner whether the statements in Vick’s affidavit were true. It was this judicial authorization which ultimately led to the recording here in question.

The issue here, therefore, is not the permissibility of “indiscriminate use of such devices in law enforcement,” but the permissibility of using such a device under the most precise and discriminate circumstances, circumstances which fully met the “requirement of particu- / larity” which the dissenting opinion in Lopez found necessary.

The situation which faced the two judges of the District Court when they were presented with Vick’s affidavit on November 8, and the motivations which prompted their authorization of the recorder are re-fleeted in the words of Chief Judge Miller. As he put it, “The affidavit contained information which reflected seriously upon a member of the bar of this court, who had practiced in my court ever since I have been on the bench. I decided that some action had to be taken to determine whether this information was correct or whether it was false. It was the most serious problem that I have had to deal with since I have been on the bench. I could not sweep it under the rug.”

So it was that, in response to a detailed factual affidavit alleging the commission of a specific criminal offense directly and immediately affecting the administration of justice in the federal court, the judges of that court jointly authorized the use of a recording device for the narrow and particularized purpose of ascertaining the truth of the affidavit’s allegations. As the district judges recognized, it was imperative to determine whether the integrity of their court was being undermined, and highly undesirable that this determination should hinge on the inconclusive outcome of a testimonial contest between the only two people in the world' who knew the truth — one an informer, the other a lawyer of previous good repute. There could hardly be a clearer example of The procedure of antecedent justification before a magistrate that is central to the Fourth Amendment’ ” as “a precondition of lawful electronic surveillance.”

We hold on these facts that the use of the recording device was permissible, and consequently that the recording itself was properly admitted as evidence at the petitioner’s trial.

II.

The petitioner’s defense was one of entrapment, and he renews here the contention made in his motion for acquittal at the trial that entrapment was established as a matter of law. We cannot agree.

The validity of the entrapment defense depended upon what had transpired at the meetings between the petitioner and Vick which took place before the recorded conversation of November 11. According to the petitioner, Vick initiated the idea of making a corrupt approach to Elliott on October 28, and the petitioner at first resisted the suggestion and tried to discourage Vick from carrying it out. The petitioner conceded that he ultimately acquiesced in the scheme, out of “weakness” and because he was exhausted from overwork, but said that he never seriously intended actually to carry out the plan to bribe Elliott. But Vick’s version of what had happened was, as stated above, quite different, and the truth of the matter was for the jury to determine. Masciale v. United States, 356 U. S. 386. Surely it was not a “trap for the unwary innocent,” Sherman v. United States, 356 U. S. 369, 372, for Vick to tell the petitioner, truthfully, that he knew some of the members of the jury panel and that one of them was his cousin. And according to Vick he had said no more when the petitioner “jumped up,” went out into the alley with him, and initiated the effort to get Elliott “on our side.” At the most, Vick’s statement afforded the petitioner “opportunities or facilities” for the commission of a criminal offense, and that is a far cry from entrapment. Sherman v. United States, supra, at 372; Sorrells v. United States, 287 U. S. 435, 441.

III.

Finally, the argument is made that even if the admissibility and truth of all the evidence against the petitioner be accepted, this conviction must be set aside because his conduct did not constitute a violation of 18 U. S. C. § 1503. The basis for this argument is that since Vick never in fact approached Elliott and never intended to do so, any endeavor on the petitioner’s part was impossible of accomplishment.

We reject the argument. Whatever continuing validity the doctrine of “impossibility,” with all its subtleties, may continue to have in the law of criminal attempt, that body of law is inapplicable here. The statute under which the petitioner was convicted makes an offense of any proscribed “endeavor.” And almost 50 years ago this Court pointed out the significance of that word: “The word of the section is 'endeavor/ and by using it the section got rid of the technicalities which might be urged as besetting the word 'attempt/ and it describes any effort or essay to accomplish the evil purpose that the section was enacted to prevent. . . . The section ... is not directed at success in corrupting a juror but at the 'endeavor’ to do so. Experimental approaches to the corruption of a juror are the 'endeavor’ of the section.” United States v. Russell, 255 U. S. 138, 143.

If the evidence against the petitioner be accepted, there can be no question that he corruptly endeavored to impede the due administration of justice by instructing Robert Vick to offer a bribe to a prospective juror in a federal criminal case. , „ ,

, „ , Affirmed.

Mr. Justice White took no part in the consideration or decision of this case.

APPENDIX TO OPINION OF THE COURT.

Transcript of the recording of the Vick-Osborn conversation of November 11, 1963:

“Girl: You can go in now.
“Vick: O. K. honey. Hello, Mr. Osborn.
“Osborn: Hello Bob, close the door, my friend, and let's see what's up.
“Vick: How’re you doing?
“Osborn: No good. How're you doing?
“Vick: Oh, pretty good. You want to talk in here?
“Osborn: How far did you go?
“Vick: Well, pretty far.
“Osborn: Maybe we’d better . . .
“Vick: Whatever you say. Don’t make any difference to me.
“Osborn: [Inaudible whisper.]
“Vick: I’m comfortable, but er, this chair sits good, but we’ll take off if you want to, but
“Osborn: Did you talk to him?
“Vick: Huh?
“Osborn: Did you talk to him?
“Vick: Yeah. I went down to Springfield Saturday morning and talked to er.
“Osborn: Elliott?
“Vick: Elliott.
“Osborn: [Inaudible whisper.]
“Vick: Huh?
“Osborn: Is there any chance in the world that he would report you?
“Vick: That he will report me to the FBI? Why of course, there's always a chance, but I wouldn’t got into it if I thought it was very, very great.
“Osborn: [Laughed.]
“Vick: You understand that.
“Osborn: [Laughing.] Yeah, I do know. Old Bob first.
“Vick: That’s right. 'Don’t worry. I’m gonna take care of old Bob and I know, and of course I’m depending on you to take care of old Bob if anything, if anything goes wrong.
“Osborn: I am. I am. Why certainly.
“Vick: Er, we had coffee Saturday morning and now he had previously told you that it’s the son.
“Osborn: It is?
“Vick: Yes, and not the father.
“Osborn: That’s right.
“Vick: The son is Ralph Alden Elliott and the father is Ralph Donnal. Alden is er — Marie, that’s Ralph’s wife who killed herself. That was her maiden name, Alden, see? Anyway, we had coffee and he’s been on a hung jury up here this week, see?
“Osborn: I know that.
“Vick: Well, I didn’t know that but anyway, he brought that up so he got to talking about the last Hoffa case being hung, you know, and some guy refused $10,000 to hang it, see, and he said the guy was crazy, he should’ve took it, you know, and so we talked about and so just discreetly, you know, and course I’m really playing this thing slow, that’s the reason I asked you if you wanted a lawyer down there to handle it or you wanted me to handle it, cause I’m gonna play it easy.
“Osborn: The less people, the better.
“Vick: That’s right. Well, I’m gonna play it slow and easy myself and er, anyway, we talked about er, something about five thousand now and five thousand later, see, so he did, he brought up five thousand see, and talking about about [sic] how they pay it off you know and things like that. I don’t know whether he suspected why I was there or not cause I don’t just drop out of the blue to visit him socially, you know. We’re friends, close kin, cousins, but I don’t ordinarily just, we don’t fraternize, you know, and er, so he seemed very receptive for er, to hang the thing for five now and five later. Now, er, I thought I would report back to you and see what you say.
“Osborn: That’s fine! The thing to do is set it up for a point later so you won’t be running back and forth.
“Vick: Yeah.
“Osborn: Then tell him it’s a deal.
“Vick: It’s what?
“Osborn: That it’s a deal. What we’ll have to do— when it gets down to the trial date, when we know the date, tomorrow for example if the Supreme Court rules against us, well within a week we’ll know when the trial comes. Then he has to be certain that when he gets on, he’s got to know that he’ll just be talking to you and nobody else. -
“Vick: Social strictly.
“Osborn: Oh yeah.
“Vick: I’ve got my story all fixed on that.
“Osborn: Then he will have to know where to, he will have to know where to come.
“Vick: Well, er . . .
“Osborn: And, he’ll have to know when.
“Vick: Er, do you want to see him yourself? You want me to handle it or what?
“Osborn: Uh huh. You’re gonna handle it yourself.
“Vick: All right. You want to know it when he’s ready, when I think he’s ready for the five thousand. Is that right?
“Osborn: Well no, when he gets on the panel, once he gets on the jury. Provided he gets on the panel.
“Vick: Yeah. Oh yeah. That’s right. That’s right. Well now, he’s on the number one.
“Osborn: I know, but now . . .
“Vick: But you don’t know that would be the one.
“Osborn: Well, I know this, that if we go to trial before that jury he’ll be on it but suppose the government challenges him over being on another hung jury.
“Vick: Oh, I see.
“Osborn: Where are we then?
“Vick: Oh, I see. I see.
“Osborn: So we have to be certain that he makes it on the jury.
“Vick: Well now, here’s one thing, Tommy. He’s a member of the CWA, see, and the Teamsters, or
“Osborn: Well, they’ll knock him off.
“Vick: Naw, they won’t. They’ve had a fight with the CWA, see?
“Osborn: I think everything looks perfect.
“Vick: I think it’s in our favor, see. I think that’ll work to our favor.
“Osborn: That’s why I’m so anxious that they accept him.
“Vick: I think they would, too. I don’t think they would have a reason in the world to. I don’t think that I’m under any surveillance or suspicion or anything like that.
“Osborn: I don’t think so.
“Vick: I don’t know. I don’t frankly think, since last year and since I told them I was through with the thing, I don’t think I have been. Now Fred,
“Osborn: I don’t think you have either.
“Vick: You know Fred and I may not [pause], he may be too suspicious and I may not be suspicious enough. I don’t know.
“Osborn: I think you’ve got it sized up exactly right.
“Vick: Well, I think so.
“Osborn: Now, you know you promised that fella that you would have nothing more to do with that case.
“Vick: That’s right.
“Osborn: At that time you had already checked on some of the jury that went into Miller’s court. You went ahead and did that.
“Vick: Well, here’s another thing, Tommy.
“Osborn: - church affiliations, background, occupation and that sort of thing on those that went into Miller’s court. You didn’t even touch them. You didn’t even investigate the people that were in Judge Gray’s court.
“Vick: Well, here’s the thing about it, Tommy. Soon as this damn thing’s over, they’re gonna kick my . . . out anyway, so probably Fred’s too. So, I might as well get out of it what I can. The way I look at it. I might be wrong cause the Tennessean is not gonna have anything to do with anybody that’s had anything to do with the case now or in the past, you know that. Cause they’re too close to the Kennedy’s.
“Osborn: All right, so we’ll leave it to you. The only thing to do would be to tell him, in other words your next contact with him would be to tell him if he wants that deal, he’s got it.
“Vick: O. K.
“Osborn: The only thing it depends upon is him being accepted on the jury. If the government challenges him there will be no deal.
“Vick: All right. If he is seated.
“Osborn: If he’s seated.
“Vick: He can expect five thousand then and
“Osborn: Immediately.
“Vick: Immediately and then five thousand when it’s hung. Is that right?
“Osborn: All the way, now!
“Vick: Oh, he’s got to stay all the way?
“Osborn: All the way.
“Vick: No swing. You don’t want him to swing like we discussed once before. You want him
“Osborn: Of course, he could be guided by his own b — , but that always leaves a question. The thing to do is just stick with his crowd. That way we’ll look better and maybe they’ll have to go to another trial if we get a pretty good count.
“Vick: Oh. Now, I’m going to play it just like you told me previously, to reassure him and keep him from getting panicky, you know. I have reason to believe that he won’t be alone, you know.
“Osborn: You assure him of that. 100%.
“Vick: And to keep any fears down that he might have, see?
“Osborn: Tell him there will be at least two others with him.
“Vick: Now, another thing, I want to ask you does John know anything. You know, I originally told John about me knowing.
“Osborn: He does not know one thing.
“Vick: He doesn’t know. O. K.
“Osborn: He’ll come in and recommend this man- and I’ll say well just let it alone, you know.
“Vick: Yeah. So he doesn’t know anything about this at all?
“Osborn: Nothing.
“Vick: Now he hasn’t seen me. When I first came here he was in here, see.
“Osborn: -We’ll keep it secret. The way we keep it safe is that nobody knows about it but you and me-where could they ever go?
“Vick: Well that’s it, I reckon, or I’ll probably go down there. See, I’m off tonight. I’m off Sunday and Monday, see. That’s why I talked to you yesterday. I had a notion to go down there yesterday cause I was off last night and I’m off again tonight.
“Osborn: It will be a week at least until we know the trial date.
“Vick: 0. K. You want to hold up doing anything further till we know.
“Osborn: Unless he should happen to give you a call and - something like that, then you just tell him, whenever you happen to run into him.
“Vick: Well, he’s not apt to call, cause see
“Osborn: You were very circumspect.
“Vick: Yeah. We haven’t talked really definite and I think he clearly understands. Now, he might, it seemed to me that maybe he thought I was joking or, you know.
“Osborn: That’s a good way to leave it, he’s the one that brought it up.
“Vick: That’s right.
“Osborn: -
“Vick: Well, I knew he would before I went down there.
“Osborn: Well,-
“Vick: Huh?
“Osborn: I’ll be talking to you.
“Vick: I’ll wait a day or two.
“Osborn: Yeah. I would.
“Vick: Before I contact him. Don’t want to seem anxious and er
“Osborn: -
“Vick: O. K. See you later.”

Mr. Justice Douglas,

dissenting in Osborn v. United States and Lewis v. United States, ante, p. 206; and concurring with Mr. Justice Clark in Hoffa v. United States, ante, p. 293.

These cases present important questions of federal law concerning the privacy of our citizens and the breach of that privacy by government agents. Lewis v. United States involves the breach of the privacy of the home by a government agent posing in a different role for the purpose of obtaining evidence from the homeowner to convict him of a crime. Hoffa v. United States raises the question whether the Government in that case induced a friend of Hoffa’s to insinuate himself into Hoffa’s entourage, there to serve as the Government’s eyes and ears for the purpose of obtaining incriminating evidence. Osborn v. United States presents the question whether the Government may compound the invasion of privacy by using hidden recording devices to record incriminating statements made by the unwary suspect to a secret federal agent.

Thus these federal cases present various aspects of the constitutional right of privacy. Privacy, though not expressly mentioned in the Constitution, is essential to the exercise of other rights guaranteed by it. As we recently said in Griswold v. Connecticut, 381 U. S. 479, 484:

“[S]pecific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. . . . Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one .... The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’ ”

We are rapidly entering the age of no privacy, where everyone is open to surveillance at all times; where there are no secrets from government. The aggressive breaches of privacy by the Government increase by geometric proportions. Wiretapping and “bugging” run rampant, without effective judicial or legislative control.

Secret observation booths in government offices and closed television circuits in industry, extending even to rest rooms, are common. Offices, conference rooms, hotel rooms, and even bedrooms (see Irvine v. California, 347 U. S. 128) are “bugged” for the convenience of government. Peepholes in men’s rooms are there to catch homosexuals. See Smayda v. United States, 352 F. 2d 251. Personality tests seek to ferret out a man’s innermost thoughts on family life, religion, racial attitudes, national origin, politics, atheism, ideology, sex, and the like. Federal agents are often “wired” so that their conversations are either recorded on their persons (Lopez v. United States, 373 U. S. 427) or transmitted to tape recorders some blocks away. The Food and Drug Administration recently put a spy in a church organization. Revenue agents have gone in the disguise of Coast Guard officers. They have broken and entered homes to obtain evidence.

Polygraph tests of government employees and of employees in industry are rampant. The dossiers on all citizens mount in number and increase in size. Now they are being put on computers so that by pressing one button all the miserable, the sick, the suspect, the unpopular, the offbeat people of the Nation can be instantly identified.

These examples and many others demonstrate an alarming trend whereby the privacy and dignity of our citizens is being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen — a society in which government may intrude into the secret regions of man’s life at will.

We have here in the District of Columbia squads of officers who work the men’s rooms in public buildings trying to get homosexuals to solicit them. See Beard v. Stahr, 200 F. Supp. 766, 768, judgment vacated, 370 U. S. 41. Undercover agents or “special employees” of narcotics divisions of city, state, and federal police actively solicit sales of narcotics. See generally 31 U. Chi. L. Rev. 137, 74 Yale L. J. 942. Police are instructed to pander to the weaknesses and craven motives of friends and acquaintances of suspects, in order to induce them to inform. See generally Harney & Cross, The Informer in Law Enforcement 33-44 (1960). In many cases the crime has not yet been committed. The undercover agent may enter a suspect’s home and make a search upon mere suspicion that a crime will be committed. He is indeed often the instigator of, and active participant in, the crime — an agent provocateur. Of course, when the solicitation by the concealed government agent goes so far as to amount to entrapment, the prosecution fails. Sorrells v. United States, 287 U. S. 435; Sherman v. United States, 356 U. S. 369. But the “dirty business” (Olmstead v. United States, 277 U. S. 438, 470 (Mr. Justice Holmes dissenting)) does not begin or end with entrapment. Entrapment is merely a facet of a much broader problem. Together with illegal searches and seizures, coerced confessions, wiretapping, and bugging, it represents lawless invasion of privacy. It is indicative of a philosophy that the ends justify the means.

We are here concerned with the manner in which government agents enter private homes. In Lewis the undercover agent appeared as a prospective customer. Tomorrow he may be a policeman disguised as the grocery deliveryman or telephone repairman, or even a health inspector. Cf. Frank v. Maryland, 359 U. S. 360; Eaton v. Price, 364 U. S. 263.

We said in Gouled v. United States, 255 U. S. 298, 306:

“[W]hether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the Government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence, falls within the scope of the prohibition of the Fourth Amendment . . .

Entering another’s home in disguise to obtain evidence is a “search” that should bring into play all the protective features of the Fourth Amendment. When the agent in Lewis had reason for believing that petitioner possessed narcotics, a search warrant should have been obtained.

Almost every home is at times used for purposes other than eating, sleeping, and social activities. Are the sanctity of the home and its privacy stripped away when-éver it is used for business? If so, what about the “mom and pop” grocery store with living quarters in the rear? What about garment workers who do piecework at home? What about saddle makers and shoemakers who have their shops in their homes? Are those proprietors stripped of privacy because customers come into the living quarters on business matters? What about the insurance agent who works out of his home? Is the privacy of his home shattered because he sells insurance there? And the candidate who holds political conferences in his home? Or the householder who consults with his attorney or accountant in his home? Are their homes transformed into public places which the Government may enter at will merely because they are occasionally used for business? I think not. A home is still a sanctuary, however the owner may use it. There is no reason why an owner’s Fourth Amendment rights cannot include the right to open up his house to limited classes of people. And, when a homeowner invites a friend or business acquaintance into his home, he opens his house to a friend or acquaintance, not a government spy-

This does not mean he can make his sanctuary invasion-proof against government agents. The Constitution has provided a way whereby the home can lawfully be invaded, and that is with a search warrant. Where, as here, there is enough evidence to get a warrant to make a search I would not allow the Fourth Amendment to be short-circuited.

We downgrade the Fourth Amendment when we forgive noncompliance with its mandate and allow these easier methods of the police to thrive.

A householder who admits a government agent, knowing that he is such, waives of course any right of privacy. One who invites or admits an old “friend” takes, I think, the risk that the “friend” will tattle and disclose confidences or that the Government will wheedle them out of him. The case for me, however, is different when government plays an ignoble role of “planting” an agent in one’s living room or uses fraud and deception in getting him there. These practices are at war with the constitutional standards of privacy which are parts of our choicest tradition.

The formula approved today by the Court in Hoffa v. United States, ante, p. 293, makes it possible for the Goyernment to use willy-nilly, son against father, nephew against uncle, friend against friend to undermine the sanctity of the most private and confidential of all conversations. The Court takes the position that whether or not the Government “placed” Partin in Hoffa’s councils is immaterial. The question of whether the Government planted Partin or whether Hoffa was merely the victim of misplaced confidence is dismissed as a “verbal controversy . . . unnecessary to a decision of the constitutional issues.” Hoffa v. United States, ante, at 295. But, very real differences underlie the “verbal controversy.” As I have said, a person may take the risk that a friend will turn on him and report to the police. But that is far different from the Government’s “planting” a friend in a person’s entourage so that he can secure incriminating evidence. In the one case, the Government has merely been the willing recipient of information supplied by a fickle friend. In the other, the Government has actively encouraged and participated in a breach of privacy by sending in an undercover agent. If Gouled is to be followed, then the Government unlawfully enters a man’s home when its agent Qgiwls through a -window, breaks down a door, enters surreptitiously, or, as alleged here, gets in by trickery and fraud. I therefore do not join in the Hoff a opinion.

I agree with Mr. Justice Clark that the petition in that case should be dismissed as improvidently granted. The two lower courts found that Partin was not planted by the Federal Government in Hoffa’s entourage. And I cannot say that those findings are clearly erroneous.

The trial court found: “I would further find that the government did not place this witness Mr. Partin in the defendants’ 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.” The Court of Appeals held that this finding was supported by substantial evidence and not clearly erroneous. 349 F. 2d 20, 36. “A court of law, such as this Court is, rather than a court for correction of errors in fact finding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error.” Graver Mfg. Co. v. Linde Co., 336 U. S. 271, 275. At times there are questions of law that may undercut two concurrent findings of fact. See Graver Mfg. Co. v. Linde Co., supra, at 280 (concurrence); Gonzales v. United States, 364 U. S. 59, 66 (dissent); Blau v. Lehman, 368 U. S. 403, 408-409. But I see no such difficulty here.

It is true that in cases from state courts involving-federal constitutional rights we are careful to review findings of fact lest a state rule undercut the federal claim. Norris v. Alabama, 294 U. S. 587, 590; Hooven & Allison Co. v. Evatt, 324 U. S. 652, 659; Watts v. Indiana, 338 U. S. 49, 51; Napue v. Illinois, 360 U. S. 264, 271; Haynes v. Washington, 373 U. S. 503, 515-516; Jacobellis v. Ohio, 378 U. S. 184, 187-188. In those cases a question of fact and a question of law are usually intertwined, e. g., is a confession “voluntary,” is a book “obscene” and the like. Here the question for the fact-finders was whether Partin was “planted” on petitioner or whether petitioner was the victim of misplaced confidence. This is not a case where “a conclusion” is “drawn from uncontroverted happenings, when that conclusion incorporates standards of conduct or criteria for judgment which in themselves are decisive of constitutional rights.” Watts v. Indiana, supra, at 51. I would apply the same legal criteria as The Chief Justice, once the facts are found. If we were the original factfinders the question would not be an open-and-shut one for me. But the concurrent findings by the lower courts have support in the evidence and I would let them stand.

Once electronic surveillance, approved in Lopez v. United States, 373 U. S. 427, is added to the techniques of snooping which this sophisticated age has developed, we face the stark reality that the walls of privacy have broken down and all the tools of the police state are handed over to our bureaucracy on a constitutional platter. The Court today pays lip service to this danger in Osborn v. United States, but goes on to approve what was done in the case for another reason. In Osborn, use of the electronic device to record the fateful conversation was approved by the two judges of the District Court in advance of its use. But what the Court overlooks is that the Fourth Amendment does not authorize warrants to issue for any search even on a showing of probable cause. The first clause of the Fourth Amendment reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated . . . .”

As held in Boyd v. United States, 116 U. S. 616, a validly executed warrant does not necessarily make legal the ensuing search and seizure.

“It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence, — it is the invasion of this sacred right which underlies and constitutes the essence of Lord Camden’s judgment. [Entick v. Carrington, 19 How. St. Tr. 1029.] Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man’s own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is within the condemnation of that judgment. In this regard the Fourth and Fifth Amendments run almost into each other.” Id., at 630.

It was accordingly held in Gouled v. United States, supra, at 309, that a search warrant “may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding” but only to obtain contraband articles or the tools with which a crime had been committed. That decision was by a unanimous Court in 1921, the opinion being written by Mr. Justice Clarke. That view has been followed (United States v. Lefkowitz, 285 U. S. 452, 465; Harris v. United States, 331 U. S. 145, 154; United States v. Rabinowitz, 339 U. S. 56, 64) with the result that today a “search” that respects all the procedural proprieties of the Fourth Amendment is nonetheless unconstitutional if it is a “search” for testimonial evidence.

As already indicated, Boyd v. United States, supra, made clear that if the barriers erected by the Fourth Amendment were not strictly honored, serious invasions of the Fifth Amendment might result. Encouraging a person to talk into a concealed “bug” may not be compulsion within the meaning of the Fifth Amendment. But allowing the transcript to be used as evidence against the accused is using the force and power of the law to make a man talk against his will, just as is the use of a warrant to obtain a letter from the accused’s home and allowing it as evidence. “[I]Ilegitímate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure.” 116 U. S., at 635. The fact that the officer could have testified to his talk with Osborn is no answer. Then an issue of credibility between two witnesses would be raised. But the tape recording carrying the two voices is testimony introduced by compulsion and, subject to the defense that the tape was “rigged,” is well nigh conclusive proof.

I would adhere to Gouled and bar the use of all testimonial evidence obtained by wiretapping or by an electronic device. The dangers posed by wiretapping and electronic surveillance strike at the very heart of the democratic philosophy. A free society is based on the premise that there are large zones of privacy into which the Government may not intrude except in unusual circumstances. As we noted in Griswold v. Connecticut, supra, various provisions of the Bill of Rights contain this aura of privacy, including the First, Third, Fourth, Fifth, and the Ninth Amendments. As respects the Fourth, this premise is expressed in the provision that the Government can intrude upon a citizen's privacy only pursuant to a search warrant, based upon probable cause, and specifically describing the objects sought. And, the “objects” of the search must be either instrumentalities or proceeds of the crime. But wiretapping and electronic “bugging” invariably involve a search for mere evidence. The objects to be “seized” cannot be particularly described; all the suspect’s conversations are intercepted. The search is not confined to a particular time, but may go on for weeks or months. The citizen is completely unaware of the invasion of his privacy. The invasion of privacy is not limited to him, but extends to his friends and acquaintances — to anyone who happens to talk on the telephone with the suspect or who happens to .come within the range of the electronic device. Their words are also intercepted; their privacy is also shattered. Such devices lay down a dragnet which indiscriminately sweeps in all conversations within its scope, without regard to the nature of the conversations, or the participants. A warrant authorizing such devices is no different from the general warrants the Fourth Amendment was intended to prohibit.

Such practices can only have a damaging effect on our society. Once sanctioned, there is every indication that their use will indiscriminately spread. The time may come when no one can be sure whether his words are being recorded for use at some future time; when everyone will fear that his most secret thoughts are no longer his own, but belong to the Government; wheji the most confidential and intimate conversations are always open to eager, prying ears. When that time comes, privacy, and with it liberty, will be gone. If a man’s privacy can be invaded at will, who can say he is free? If his every word is taken down and evaluated, or if he is afraid every word may be, who can say he enjoys freedom of speech? If his every association is known and recorded, if the conversations with his associates are purloined, who can say he enjoys freedom of association? When such conditions obtain, our citizens will be afraid to utter any but the safest and most orthodox thoughts; afraid to associate with any but the most acceptable people. Freedom as the Constitution envisages it will have vanished.

I would reverse Lewis and Osborn and dismiss Hoffa.

       18 U. S. C. § 1503 provides as follows:
      "Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

       The indictment contained two other counts charging similar offenses with respect to the earlier trial of the same defendant. The Government dismissed one of these counts, and the petitioner was acquitted on the other.

       A transcript of the recording is reproduced as an Appendix to this opinion.

       It is argued that in Lopez the petitioner knew that the person to whom he offered a bribe was a federal officer. But, even assuming there might otherwise be some force to this distinction, it is enough to point out that in the present case the petitioner also knew he was talking to a law enforcement officer — a member of the Nashville police department.

       The relevant portion of this affidavit was as follows:
      “On November 7, 1963, I was in Mr. Osborn’s office going over the results of my investigation. I was aware that the jury panel which I had been investigating was the panel assigned to Judge William E. Miller. Mr. Osbom and I got into a discussion of the jury panel assigned to Judge Frank Gray, Jr. This jury panel list had previously been shown to me by John Polk, an investigator for Mr. Osborn. Polk told me at that time that he was investigating the jury panel assigned to Judge Gray. At that time, I mentioned to Polk that I knew three of the people on the jury panel. In discussing the panel with Mr. Osborn, I again mentioned that I knew three of the people on the jury panel. Mr. Osbom said, ‘You do? Why didn’t you tell me?’ I told Mr. Osbom I had told John Polk and assumed that John Polk had told him. Mr. Osborn said that Polk had not told him and suggested that we discuss the matter further. We then left Mr. Osborn’s office and walked out onto the street to discuss the matter further. Mr. Osborn asked me how well I knew the three prospective jurors. I told him that I knew Mr. Ralph A. Elliott, Springfield, Tennessee, the best since he was my cousin. Mr. Osborn asked me whether I knew him well enough to talk to him about anything. I said that I thought I did. Mr. Osborn then said, ‘Go contact him right away. Sit down and talk to him and get him on our side. We want him on the jury.’ I told Mr. Osbom that I thought Mr. Elliott was not in very good financial position and Mr. Osbom said, ‘Good, go see him right away.’ ”

       The recording device did not operate properly on the occasion of Vick’s visit to the petitioner’s office on November 8, and Vick made a written statement of what occurred during that meeting. The government lawyers reported these circumstances to District Judge Miller, who then authorized the use of the recorder on November 11, under the same conditions:
      “I said on that second occasion the same as I did on the first occasion: that the tape recorder should be used under proper surveillance, supervision, to see that it was not faked in any way, and to take every precaution to determine that it was used in a fair manner, so that we could get at the bottom of it and determine what the truth was.”

       “I also share the opinion of Mr. Justice BrennaN that the fantastic advances in the field of electronic communication constitute a great danger to the privacy of the individual; that indiscriminate use of such devices in law enforcement raises grave constitutional questions under the Fourth and Fifth Amendments; and that these considerations impose a heavier responsibility on this Court in its supervision of the fairness of procedures in the federal court system. However, I do not believe that, as a result, all uses of such devices should be proscribed either as unconstitutional or as unfair law enforcement methods.” Lopez v. United States, 373 U. S., at 441 (concurring opinion of The Chief Justice).

       373 U. S., at 463.

       “The requirements of the Fourth Amendment are not inflexible, or obtusely unyielding to the legitimate needs of law enforcement. It is at least clear that 'the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment,’ Ohio ex rel. Eaton v. Price, 364 U. S. 263, 272 (separate opinion) ; see McDonald v. United States, 335 U. S. 451, 455; Abel v. United States, 362 U. S. 217, 251-252 (dissenting opinion), could be made a precondition of lawful electronic surveillance. . . .” Lopez v. United States, 373 U. S., at 464 (dissenting opinion of Mr. Justice BRENNAN).

       The petitioner’s trial counsel explicitly conceded that the entrapment issue was for the jury to resolve.

       The petitioner further argues, with respect to the entrapment defense, that the jury instructions were erroneous in two respects, and that government rebuttal evidence was improperly received.
      It is urged that the trial judge committed error in failing to instruct the jury that if they acquitted the petitioner under Count 2 (charging an endeavor to bribe a juror at the 1962 Hoffa trial), they must not consider any evidence under that count in determining the petitioner’s guilt under Count 1. Such an instruction was not requested. Rule 30, Fed. Rules Crim. Proc. Moreover, it is settled that when the defense of entrapment is raised, evidence of prior conduct tending to show the defendant’s predisposition to commit the offense charged is admissible. See Sorrells v. United States, 287 U. S. 435, 451.
      The petitioner further argues that the instructions on entrapment erroneously left to the jury the question of whether the tape recording had been obtained by lawful means. We do not so understand the trial judge’s language, and neither, apparently, did trial counsel, because no objection was made to the instructions as given. Rule 30, Fed. Rules Crim. Proc. Moreover, such an instruction would have been favorable to the petitioner, because the judge, in denying the earlier defense motion to suppress, had already ruled that the recording had been lawfully obtained.
      Finally, objection is made to permitting the Government on rebuttal to introduce Vick’s November 8 affidavit and show the circumstances under which the tape recording had been authorized by the judges. But this evidence was a relevant response to the petitioner’s testimony that it was Vick who, at the instigation of the Government, had initiated the plan to approach Elliott as early as October 28.

       See n. 1, supra.

       Compare People v. Jaffe, 185 N. Y. 497, 78 N. E. 169, with People v. Gardner, 144 N. Y. 119, 38 N. E. 1003. See Wechsler, Jones & Korn, The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation, and Conspiracy, 61 Col. L. Rev. 571, 578-585 (1961).

       See generally Hearings before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, Invasions of Privacy, 89th Cong., 1st Sess. (1965).

       See generally Hearings before a Subcommittee of the House Committee on Government Operations, Special Inquiry on Invasion of Privacy, 89th Cong., 1st Sess. (1965); Hearings before the Subcommittee on Constitutional Rights of the Senate Committee on the Judiciary, Psychological Tests and Constitutional Rights, 89th Cong., 1st Sess. (1965).

       See, e. g., Hearings before the Subcommittee on Administrative Practice and Procedure, sufra, n. 1, pt. 2, at 389.

        Id., at 783.

        Id., pt. 3, at 1356.

        Id., at 1379, 1415.

       See generally Hearings before a Subcommittee of the House Committee on Government Operations, Use of Polygraphs As “Lie Detectors” By the Federal Government, 88th Cong., 2d Sess. (1964).

       See generally Hearings before a Subcommittee of the House Committee on Government Operations, The Computer and Invasion of Privacy, 89th Cong., 2d Sess., July 26, 27, and 28, 1966.

       We know from the Hearings before Senate and House Committees that the Government is using such tactics on a gargantuan scale and has become callous of the rights of the citizens.
      The attitude that those investigated for crime have fewer constitutional rights than others has currency:
      “Senator Long. I am curious as to whether you have a different set of principles, different standards, a different view as to the constitutional rights and privileges where the OCD is involved and where the ordinary taxpayer is involved?
      “Mr. Wilson. It is pretty much a matter of fight fire with fire. Yes, I think to a degree there is a different feeling when you are working on organized crime.
      “Senator Long. In other words, you say one has constitutional rights and the other one does not?
      “Mr. Wilson. No, we don’t say that.
      “Senator Long. You act like it, though, don’t you?
      “Mr. Wilson. I am afraid you are right.”
      Hearings before the Subcommittee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, Invasions of Privacy, supra, n. 1, pt. 3, at 1477 (1965).

       We are told that raids by welfare inspectors to see if recipients of welfare have violated eligibility requirements flout the Fourth Amendment. See Reich, Midnight Welfare Searches and the Social Security Act, 72 Yale L. J. 1347 (1963).

       In Lewis, a federal narcotics agent, posing as an operator of a bar and grill, went to petitioner’s home for the purpose of obtaining narcotics from him. He had no search warrant, though there were grounds for obtaining one. Agent Cass testified that he had been assigned to investigate narcotics activities in the Boston area in June 1963. He became acquainted with one Gold, a friend of petitioner,* from whom he learned that one might obtain marihuana from the petitioner. It was then that Agent Cass, representing himself as “Jimmy the Pollack,” telephoned the petitioner stating “a friend of ours told me you have some pretty good grass [marihuana].” Petitioner replied, “Yes, he told me about you, Pollack ... I believe, Jimmy, I can take care of you.” When Cass told him that he needed five bags, petitioner gave him his address and directions, and told him to come right over. On the basis of our prior decisions this information would certainly have made a sufficient showing of probable cause to justify the issuance of a warrant. Yet none was sought or obtained.
      *“[W]hen we approached the narcotic trafficker to purchase drugs for evidence, our credentials need to be good — almost impeccable. Usually considered as good credentials is an introduction by an accepted criminal who vouches for our agent. In this category the informer can supply the entree which otherwise might never be attained. Working under cover, we have sometimes been embarrassed by the informer’s fulsome description of our rogue qualifications.” Harney & Cross, The Informer in Law Enforcement 18-19 (1960). See Pritt, Spies and Informers in the Witness-Box (1958).

       Compare the eases from state courts dealing with the question whether a confession has been coerced contrary to the requirements of the Fourteenth Amendment, where the Court weighs only the undisputed facts. Ashcraft v. Tennessee, 322 U. S. 143, 153, 154; Malinski v. New York, 324 U. S. 401, 404; Thomas v. Arizona, 356 U. S. 390, 402-403; Rogers v. Richmond, 365 U. S. 534, 546.

       The recent regulation of the Federal Communications Commission that bans the use of monitoring devices “unless such use is authorized by all of the parties engaging in the conversation” (31 Fed. Reg. 3400) is of course applicable only when air waves are used; and it does not apply to “operations of any law enforcement officers conducted under lawful authority.” Ibid. If Silverman v. United

        States, 365 U. S. 505, is read in the context of our prior decisions, then the majority view is that the use of an electronic device to record a conversation in the home is not a “search” within the meaning of the Fourth Amendment, unless the device itself penetrates the wall of the home. Section 605 of the Federal Communications Act, 48 Stat. 1103, 47 U. S. C. § 605, that governs the interception of communications made “by wire or radio” reaches only the problem of the persons to whom the message may be disclosed by federal agents as well as others (Nardone v. United States, 302 U. S. 379, 308 U. S. 338), not the practice itself.
      Though § 605 protects communications “by wire or radio,” the Court in On Lee v. United States, 343 U. S. 747, 754, held that § 605 was not violated when a narcotics agent wearing an electronic device entered the combination home and office of a suspect and engaged him in conversation which was broadcast to another agent stationed outside. “Petitioner [the suspect] had no wires and no wireless. There was no interference with any communications facility which he possessed or was entitled to use. He was not sending messages to anybody or using a system of communications within the Act.”
      If that decision stands, then § 605 extends no protection to messages intercepted by the use of electronic devices banned by the new 1966 Federal Communications Commission rule.

       Rigging is easy for the expert. See Dash, The Eavesdroppers 367-371 (1959): "... the tape to be edited is played on a machine which can be instantaneously stopped at will. When a word or passage occurs which is to be deleted, the machine is stopped, the piece of tape containing the unwanted section is cut out, and the two loose ends are spliced. The words cut out can be inserted in whole or in part somewhere else. Sentences can be rearranged. New words can be dubbed in by an impersonator or made up of sounds taken from other words.” Id,., 369.
      • .a skilfully edited tape cannot be detected with equipment readily available.” Id., 371.

       “The ninth amendment should be permitted to occupy its rightful place in the Constitution as a reminder at the end of the Bill of Rights that there exist rights other than those set out in the first eight amendments. It was intended to preserve the underlying theory of the Constitutional Convention that individual rights exist independently of government, and to negate the Federalist argument that the enumeration of certain rights would imply the forfeiture of all others. The ninth is simply a rule of construction, applicable to the entire constitution.” Comment, The Uncertain Renaissance of the Ninth Amendment, 33 U. Chi. L. Rev. 814, 835 (1966).


author: Mr. Justice Fortas

text:
    DEPARTMENT OF EMPLOYMENT et al. v. UNITED STATES et al.
    No. 78.
    Argued November 15, 1966.
    Decided December 12, 1966.

      James D. McKevitt, Assistant Attorney General of Colorado, argued the cause for appellants. With him on the brief were Duke W. Dunbar, Attorney General, and Frank E. Hickey, Deputy Attorney General.

      Jack S. Levin argued the cause for the United States et al. With him on the brief were Solicitor General Marshall, Assistant Attorney General Rogovin, Harold C. Wilkenfeld and William Massar.

   Mr. Justice Fortas

delivered the opinion of the Court.

Colorado is one of three States whose Employment Security Act imposes an unemployment compensation tax upon charitable institutions, the tax being measured by the amount of wages paid to the institution’s employees. Colo. Rev. Stat. Ann. § 82-6-1. When the State’s Department of Employment sought to enforce the tax upon wages paid Colorado-based employees of the American National Red Cross (hereinafter referred to as Red Cross), the Red Cross objected that as a “federal instrumentality” it was immune from such taxation. See McCulloch v. Maryland, 4 Wheat. 316 (1819). Tax payments aggregating more than $10,000 were made under protest, applications for refund accompanying each payment. The Department of Employment denied each such application. Thereupon the Red Cross, along with the United States as co-plaintiff, invoked the jurisdiction of a three-judge federal District Court to enjoin enforcement against it of the Colorado Employment Security Act on the ground that as applied to it, a federal instrumentality, the statute violated the Federal Constitution. See 28 U. S. C. § 2281. The Department of Employment responded that the Red Cross was not a federal instrumentality, that any immunity it might have had been waived by Congress in the 1960 amendments to the Federal Unemployment Tax Act (26 U. S. C. § 3301 et seq.), and that in any event the Red Cross had failed to exhaust available administrative and state judicial remedies. The three-judge federal District Court ruled in favor of the Red Cross and the United States on each of these issues, ordered a refund of taxes already paid, and enjoined enforcement of the tax statute against the Red Cross. Pursuant to 28 U. S. C. § 1253, the Department of Employment and its executive director sought direct review here. In setting the case for argument, we postponed consideration of questions pertaining to our jurisdiction and that of the three-judge court. 384 U. S. 949 (1966).

We are persuaded that there exist no jurisdictional barriers to our disposition of this appeal on the merits. Any challenge to the applicability of the three-judge court provision, 28 U. S. C. § 2281, is foreclosed by this Court’s decision in Query v. United States, 316 U. S. 486 (1942), where the Court held that three judges were required to entertain a suit to enjoin a state tax statute sought to be enforced against an Army Post Exchange which asserted its immunity as a federal instrumentality, and we do not consider that our later decision in Swift & Co. v. Wickham, 382 U. S. 111 (1965), requires a different conclusion. Nor is there compelling force in the argument, advanced by appellants, that the Tax Injunction Act (28 U. S. C. §1341) requires appellees first to exhaust their state remedies, which are alleged by appellants to be “plain, speedy and efficient.” We need not decide whether omission to provide interest on a successful refund application renders the state remedy here an inadequate one within the meaning of § 1341. For we conclude, in accord with an unbroken line of authority and convincing evidence of legislative purpose, that § 1341 does not act as a restriction upon suits by the United States to protect itself and its instrumentalities from unconstitutional state exactions. With respect to appellants' contention that the State of Colorado has not consented to suit in a federal forum even where the plaintiff is the United States, see Monaco v. Mississippi, 292 U. S. 313 (1934), and Ex parte Young, 209 U. S. 123 (1908).

On the merits, we hold that the Red Cross is an instrumentality of the United States for purposes of immunity from state taxation levied on its operations, and that this immunity has not been waived by congressional enactment. Although there is no simple test for ascertaining whether an institution is so closely related to governmental activity as to become a tax-immune instrumentality, the Red Cross is clearly such an instrumentality. See generally, Sturges, The Legal Status of the Red Cross, 56 Mich. L. Rev. 1 (1957). Congress chartered the present Red Cross in 1905, subjecting it to governmental supervision and to a regular financial audit by the Defense, then War, Department. 33 Stat. 599, as amended, 36 U. S. C. § 1 et seq. Its principal officer is appointed by the President, who also appoints seven (all government officers) of the remaining 49 Governors. 33 Stat. 601, as amended, 36 U. S. C. § 5. By statute and Executive Order there devolved upon the Red Cross the right and the obligation to meet this Nation’s commitments under various Geneva Conventions, to perform a wide variety of functions indispensable to the workings of our Armed Forces around the globe, and to assist the Federal Government in providing disaster assistance to the States in time of need. Although its operations are financed primarily from voluntary private contributions, the Red Cross does receive substantial material assistance from the Federal Government. And time and time again, both the President and the Congress have recognized and acted in reliance upon the Red Cross’ status virtually as an arm of the Government. In those respects in which the Red Cross differs from the usual government agency — e. g., in that its employees are not employees of the United States, and that government officials do not direct its everyday affairs — the Red Cross is like other institutions — e. g., national banks — whose status as tax-immune instrumen-talities of the United States is beyond dispute.

Nor did Congress, in the course of amending the federal unemployment compensation tax statute in 1960, strip away any of this immunity. Certainly there was no intent to do so. Indeed, in debate on the floor of the House, Chairman Mills and Congressman Ikard of the Ways and Means Committee expressed their view, which was not controverted, that the Red Cross’ immunity from state and federal unemployment compensation taxes would survive the amendments. 106 Cong. Rec. 13827 (1960). And the House Committee Report stated that no nongovernment-owned instrumentality which enjoyed immunity from the federal tax prior to 1960 — the Red Cross had such an exemption — was to lose its state-tax immunity. H. R. Rep. No. 1799, 86th Cong., 2d Sess., pp. 55-56, 125 (1960). Finally, the present statutory scheme does not deprive the Red Cross of immunity. That the Red Cross enjoyed immunity prior to the 1960 amendments seems clear, and was at the time conceded by the State of Colorado. Under the pre-existing scheme, § 3305 (b) of Title 26 exempted from state taxation any federal instrumentality exempt from the federal unemployment compensation tax imposed by § 3301. The Red Cross was so exempt as the result of §§ 3306 (c) (6) (B) and 3306 (c)(8), which referred to “service performed in the employ of [a charitable organization].” As amended in 1960, § 3305 (b) continues the state-tax immunity for any “instrumentality to which section 3306 (c)(6) applies.” And the latter section as amended includes employment “exempt from the tax imposed by section 3301 by virtue of any provision of law which specifically refers to such section ... in granting such exemption.” 26 U. S. C. § 3306 (c)(6)(B). Although §3306 (c)(8), which exempts from the federal tax “service performed in the employ of a [charitable institution],” does not contain an explicit citation to § 3301, its sole function is to exempt certain employment from the reach of that section. We hold that federal instrumentalities like the Red Cross, exempted from the federal tax by virtue of §3306 (e)(8), are likewise exempt from state taxation under § 3306 (c) (6) (B).

Accordingly, the judgment appealed from is

Affirmed.

       The other States are Alaska and Hawaii. See Alaska Stat. § 23.20.525 (c) (7) (1962); Hawaii Rev. Laws § 93-7 (i) (Supp. 1963).

       The statute provides that “An interlocutory or permanent injunction restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State . . . shall not be granted by any district court or judge thereof upon the ground of the unconstitutionality of such statute unless the application therefor is heard and determined by a district court of three judges under section 2284 of this title.”

       Section 1253 authorizes direct appeal to this Court from an order granting an injunction in any proceeding “required by any Act of Congress to be heard and determined by a district court of three judges.”

       See also United States v. Georgia Pub. Serv. Comm’n, 371 U. S. 285, 287 (1963); Paul v. United States, 371 U. S. 245, 249-250 (1963). Compare Currie, The Three-Judge District Court in Constitutional Litigation, 32 U. Chi. L. Rev. 1, 37-50 (1964), with Note, The Three-Judge District Court: Scope and Procedure Under Section 2281, 77 Harv. L. Rev. 299, 312-313 (1963).

       Section 1341 provides that “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.”

         United States v. Arlington County, Commonwealth of Virginia, 326 F. 2d 929, 931 (C. A. 4th Cir. 1964); United States v. Bureau of Revenue of State of N. M., 291 F. 2d 677, 679 (C. A. 10th Cir. 1961); United States v. Woodworth, 170 F. 2d 1019 (C. A. 2d Cir. 1948); City of Springfield v. United States, 99 F. 2d 860, 862 (C. A. 1st Cir. 1938), cert. denied, 306 U. S. 650 (1939); United States v. Livingston, 179 F. Supp. 9, 11-12 (D. C. E. D. S. C. 1959), aff'd, 364 U. S. 281 (1960).

       See S. Rep. No. 1035, 75th Cong., 1st Sess., pp. 2-3 (1937) ; EL R. Rep. No. 1503, 75th Cong., 1st Sess., pp. 2-3 (1937); 81 Cong. Rec. 1416-1417 (1937).

        E. g., Geneva Convention of August 22, 1864, For the Amelioration of the Wounded in Armies in the Field, 22 Stat. 940 (1882); Geneva Convention of July 27, 1929, For the Amelioration of the Condition of the Wounded and the Sick of Armies in the Field, 47 Stat. 2074 (1932); Geneva Convention of August 12, 1949, For the Multilateral Protection of War Victims, 6 U. S. T. & O. I. A. 3114, T. I. A. S. No. 3362.

       See, e. g., 10 U. S. C. §2602; 33 Stat. 600, as amended, 36 Ü. S. C. § 3.

       See 33 Stat. 600, as amended, 36 U. S. C. §3; 64 Stat. 1109, 42 U. S. C. §§ 1855-1855g.

       See, e. g., 46 Stat. 66, as amended, 36 U. S. C. § 13 (permanent headquarters building).

       See, e. g., Proclamation of President Taft, August 22, 1911, 37 Stat. 1716; 64 Stat. 1109, 42 U. S. C. §§ 1855a (f), 1855b, 1855c; H. Con. Res. 232, 70 Stat. b32 (1956); H. R. Rep. No. 1728, 82d Cong., 2d Sess., p. 2 (1952).

       Such was the opinion of Assistant Attorney General McKevitt, who so informed appellant Department of Employment. See letter of the Assistant Attorney General to appellee Red Cross, dated November 21, 1960, exhibit 2, in support of appellees’ motion for summary judgment below.


author: Per Curiam.

text:
    HEIDER, ADMINISTRATOR v. MICHIGAN SUGAR CO.
    No. 48.
    Argued December 8, 1966.
    Decided December 12, 1966.

      Gregory M. Pillon argued the cause for petitioner. With him on the briefs was Thomas C. Mayer.

      Harry M. Plotkin argued the cause for respondent. With him on the brief was Carl H. Smith.

   Per Curiam.

The writ is dismissed as improvidently granted.


author: Per Curiam, Mr. Justice Harlan,

text:
    PARKER v. GLADDEN, WARDEN.
    No. 81.
    Argued November 9, 1966.
    Decided December 12, 1966.

      John H. Schafer argued the cause and filed a brief for petitioner.

      David H. Blunt, Assistant Attorney General of Oregon, argued the cause for respondent. With him on the brief was Robert Y. Thornton, Attorney General.
   Per Curiam,

Petitioner, after his conviction for second degree murder, 235 Ore. 366, 384 P. 2d 986, filed a petition for post-conviction relief, Ore. Rev. Stat. § 138.550. At a hearing on the petition the trial court found that a court bailiff assigned to shepherd the sequestered jury, which sat for eight days, stated to one of the jurors in the presence of others while the jury was out walking on a public sidewalk: “Oh that wicked fellow [petitioner], he is guilty”; and on another occasion said to another juror under similar circumstances, “If there is anything wrong [in finding petitioner guilty] the Supreme Court will correct it.” Both statements were overheard by at least one regular juror or an alternate. The trial court found “that the unauthorized communication was prejudicial and that such conduct materially affected the rights of the [petitioner].” The Supreme Court of Oregon reversed, finding that “the bailiff’s misconduct did not deprive [petitioner] of a constitutionally correct trial.” 245 Ore. -, 407 P. 2d 246. We granted certiorari, 384 U. S. 904. The federal question decided by Oregon’s highest court is, of course, subject to final determination in this Court and we have concluded that the judgment must be reversed.

We believe that the statements of the bailiff to the jurors are controlled by the command of the Sixth Amendment, made applicable to the States through the Due Process Clause of the Fourteenth Amendment. It guarantees that “the accused shall enjoy the right to a . . . trial, by an impartial jury . . . [and] be confronted with the witnesses against him. . . .” As we said in Turner v. Louisiana, 379 U. S. 466, 472-473 (1965), “the 'evidence developed’ against a defendant shall come from the witness stand in a public courtroom where there is full judicial protection of the defendant’s right of confrontation, of cross-examination, and of counsel.” Here there is dispute neither as to what the bailiff, an officer of the State, said nor that when he said it he was not subjected to confrontation, cross-examination or other safeguards guaranteed to the petitioner. Rather, his expressions were “private talk,” tending to reach the jury by “outside influence.” Patterson v. Colorado, 205 U. S. 454, 462 (1907). We have followed the “undeviating rule,” Sheppard v. Maxwell, 384 U. S. 333, 351 (1966), that the rights of confrontation and cross-examination are among the fundamental requirements of a constitutionally fair trial. Kirby v. United States, 174 U. S. 47, 55, 56 (1899); In re Oliver, 333 U. S. 257, 273 (1948); Pointer v. Texas, 380 U. S. 400 (1965).

The State suggests that no prejudice was shown and that no harm could have resulted because 10 members of the jury testified that they had not heard the bailiff’s statements and that Oregon law permits a verdict of guilty by 10 affirmative votes. This overlooks the fact that the official character of the bailiff — as an officer of the court as well as the State — beyond question carries great weight with a jury which he had been shepherding for eight days and nights. Moreover, the jurors deliberated for 26 hours, indicating a difference among them as to the guilt of petitioner. Finally, one of the jurors testified that she was prejudiced by the statements, which supports the trial court’s finding “that the unauthorized communication was prejudicial and that such conduct materially affected the rights of the defendant.” This finding was not upset by Oregon’s highest court. Aside from this, we believe that the unauthorized conduct of the bailiff “involves such a probability that prejudice will result that it is deemed inherently lacking in due process,” Estes v. Texas, 381 U. S. 532, 542-543 (1965). As we said in Turner v. Louisiana, supra, “it would be blinking reality not to recognize the extreme prejudice inherent” in such statements that reached at least three members of the jury and one alternate member. Id., at 473. The State says that 10 of the jurors testified that they had not heard the statements of the bailiff. This, however, ignores the testimony that one of the statements was made to an unidentified juror, which, including Mrs. Inwards and Mrs. Drake, makes three. In any event, petitioner was entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors. See State v. Murray, 164 La. 883, 888, 114 So. 721, 723.

Reversed.

Mr. Justice Harlan,

dissenting.

By not setting forth the background of this proceeding the Court has put seriously out of focus the constitutional issue involved in this case.

Parker was convicted of second degree murder on May 19, 1961, and sentenced to life imprisonment. On September 7, 1961, he addressed a letter to several jurors protesting his innocence, condemning his attorneys for incompetence, intimating that witnesses were coerced into lying, and chiding the jurors for being duped into finding him guilty. After affirmance of his conviction by the Supreme Court of Oregon on September 15, 1963 — some two years after the jury verdict — Parker again set out to take his case to the jury. He furnished his wife with a tape recording in which he propounded a series of questions designed to uncover possible improprieties in the jury’s deliberations. The jury had deliberated a long time and Parker had been told that their discussion was heated. Although unaware of any irregularities he commenced “shooting in the dark.” (Tr., p. 16.) Mrs. Parker then acquired a jury list and discovered those jurors who had been most sympathetic to her husband. She invited two regular jurors and an alternate to her home to listen to the recording and discuss the case. An attorney was then retained to prepare affidavits detailing the allegations before us and to institute this post-conviction proceeding. The statements before this Court were found to have been made by this apparently Elizabethan-tongued bailiff, but, contrary to this Court’s assertion, the trial court found that these statements, were only prejudicial in nature and not that they had a prejudicial effect. The Oregon Supreme Court did not find the trial proceedings fundamentally unfair.

This Court finds the bailiff’s remarks to be in violation of the Sixth Amendment’s confrontation requirement. Although I believe that “a right of confrontation is ‘implicit in the concept of ordered liberty,’ ” Pointer v. Texas, 380 U. S. 400, 408 (concurring opinion of Harlan, J.), I cannot accede to the view that the Sixth Amendment is directly applicable to the States through the Fourteenth. As to the confrontation problem here asserted, I know of no case in which this Court has held that jurors must have been absolutely insulated from all expressions of opinion on the merits of the case or the judicial process at the risk of declaration of a new trial. Irvin v. Dowd, 366 U. S. 717. Even where this Court has acted in its supervisory capacity it has refused to hold that jury contact with outside information is always a cause for overthrowing a verdict, wisely preferring to allow “each case . . . [to] turn on its special facts.” Marshall v. United States, 360 U. S. 310, 312. The Court notes that these remarks were made by a state officer, but does not explain why the bailiff’s official capacity would in this instance make him any more a “witness” than any other person able to communicate with the jury. Thus, though I believe unintentionally, the Court’s opinion leaves open the possibility of automatically requiring a mistrial on constitutional grounds whenever any juror is exposed to any potentially prejudicial expression of opinion.

Considering this case, as I would, under the doctrine of fundamental fairness implicit in the Due Process Clause of the Fourteenth Amendment, I think a different result follows. Much reliance has been placed upon Turner v. Louisiana, 379 U. S. 466. But in Turner we faced a situation in which the trial court allowed two deputy sheriffs who were key witnesses to be placed in “continuous and intimate association” with the jury, and it would have been “blinking reality not to recognize the extreme prejudice inherent in this” situation. 379 U. S., at 473. There too we faced “a procedure employed by the State” involving “such a probability that prejudice will result” that we deemed it “inherently lacking in due process.” Estes v. Texas, 381 U. S. 532, 542-543. Here no procedure adopted by the State is to be faulted and it seems clear to me that the rule of Stroble v. California, 343 U. S. 181, and Irvin v. Dowd, supra, should apply and a substantial showing of prejudice in fact must be made before a due process violation can be found.

On this basis the occurrences before us seem inconsequential to me in light of the eight-day trial and twenty-six-hour jury deliberation. And my feeling is confirmed by the extremely trivial evidence of prejudice amounting to no more than an assertion by one obviously highly emotional and “guilt-ridden” juror that she might have been influenced without realizing it. “[I]t is an impossible standard to require that tribunal [the jury] to be a laboratory, completely sterilized and freed from any external factors.” Rideau v. Louisiana, 373 U. S. 723, 733 (Clark, J., dissenting).

The potentialities of today’s decision may go far beyond what, I am sure, the Court intends. Certainly the Court does not wish to encourage convicted felons to “intimidate, beset and harass,” Stein v. New York, 346 U. S. 156, 178, a discharged jury in an effort to establish possible grounds for a new trial. Our courts have always been alert to protect the sanctity of the jury process. McDonald v. Pless, 238 U. S. 264; see Castaldi v. United States, 251 F. Supp. 681. But in allowing Parker to overturn his conviction on the basis of what are no more than inconsequential incidents in an otherwise constitutionally flawless proceeding, the Court encourages others to follow his example in pursuing the jury and may be thought by some to commit federal courts in habeas corpus proceedings to interrogate the jury upon the mere allegation that a prejudicial remark has reached the ears of one of its members. Remmer v. United States, 347 U. S. 227. To any such result I cannot subscribe.

I think the Oregon Supreme Court correctly assessed the constitutional issue before us, and I would affirm its judgment.

       The statement was made to alternate juror Mrs. Gattman and was overheard by juror Mrs. Inwards.

         The statement was made to an unidentified juror and overheard by juror Mrs. Drake.

       Mrs. Inwards when recalled to the stand testified in response to a question by the court that “all in all it must have influenced me. I didn’t realize it at the time.”

       The record shows that Mrs. Parker first called juror number one, Mrs. Inwards, and upon finding her sympathetic obtained from her the names of those who had held out longest. Mrs. Inwards also informed Mrs. Parker that an alternate juror, Mrs. Gattman, was sympathetic to Parker’s cause.

       The trial court purported to follow the State Supreme Court's decision in State v. Kristich, 226 Ore. 240, 359 P. 2d 1106, which held that where a bailiff had communicated with a jury on a point of law prejudice would be presumed. Thus the trial court said that “if the matters alleged in plaintiff’s petition had been called to the Court’s attention, the Court, on its own motion, would have granted the defendant a new trial,” and held that Parker deserved a new trial because the communication was of a prejudicial nature. The Oregon Supreme Court reversed because it held that the trial court erroneously applied the new-trial standard to a post-conviction proceeding where only error of constitutional magnitude would serve to overthrow the verdict. The Supreme Court made no specific finding on prejudice but in distinguishing Turner v. Louisiana, 379 U. S. 466, noted a “difference in degree of the out-of-courtroom influence ... so great as to lead us to the conclusion that the bailiff’s misconduct did not deprive defendant of a constitutionally correct trial.” 245 Ore. -, -, 407 P. 2d 246, 249.

       Mrs. Inwards, who on recall testified that she must have been unconsciously influenced, denied any influence when first examined. In her further testimony she admitted that she was extremely upset by the verdict and would do anything short of committing perjury to overturn it. She stated, however, that although she had gone to the trial judge to discuss the verdict she had never mentioned the bailiff’s remarks to him. In specifying that the bailiff’s remarks “must” have influenced her she limited herself to declaring that they did so in connection with the pressure put on her by other jurors during the deliberations thus stating that “all in all” she “must” have been influenced.


text:
    MASON et al. v. CITY OF BILOXI.
    No. 328.
    Decided December 12, 1966.

      Jack Greenberg, James M. Nabrit III and R. Jess Brown for petitioners.

      Albert Sidney Johnston, Jr., for respondent.
   Per Curiam.

The petition for a writ of certiorari is granted and the judgment of the Supreme Court of Mississippi is reversed. Burton v. Wilmington Parking Authority, 365 U. S. 715.

Mr. Justice Harlan is of the opinion that certiorari should be granted and the case set for oral argument.


text:
    FRENCH v. CALIFORNIA.
    No. 581.
    Decided December 12, 1966.

      Morris Lavine for appellant.

      Roger Arnebergh, Philip E. Grey and Edward L. Davenport for appellee.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    EXLEY EXPRESS, INC. v. UNITED STATES et al.
    No. 644.
    Decided December 12, 1966.

      Robert L. Holtzclaw and James T. Johnson for appellant.

      Solicitor General Marshall, Assistant Attorney General Turner, Howard E. Shapiro and Robert W. Ginnane for the United States et al.; Earle V. White for Albany Food Products, Inc., appellees.
   Per Curiam.

The motions to affirm are granted and the judgment is affirmed.


text:
    LAIRD & CO. et al. v. CHENEY, DIRECTOR OF ALCOHOLIC BEVERAGE CONTROL, et al.
    No. 675.
    Decided December 12, 1966.

      Harry W. Colmery and Robert E. Russell for appellants.

      Robert C. Londerholm, Attorney General of Kansas, and Park McGee, Assistant Attorney General, for appellees.
   Per Curiam.

The motion to dismiss is granted and the appeal is dismissed for want of a substantial federal question.


text:
    SCHIPANI v. UNITED STATES.
    No. 504.
    Certiorari denied, November 7, 1966.
    Petition for rehearing granted, December 12, 1966.

      Jacob P. Lefkowitz for petitioner.

      Solicitor General Marshall for the United States.
   Per Curiam.

Upon the suggestion of the Solicitor General and upon an independent examination of the case, the petition for a rehearing is granted, the order of this Court denying certiorari is vacated, certiorari is granted, the judgment of the United States Court of Appeals for the Second Circuit is vacated and the case is remanded to the United States District Court for the Eastern District of New York for a new trial should the Government seek to prosecute petitioner anew.


text:
    GENERAL MOTORS CORP. v. APPEAL BOARD OF THE MICHIGAN EMPLOYMENT SECURITY COMMISSION et al.
    No. 658.
    Decided December 12, 1966.

      Aloysius F. Power for appellant.

      Frank J. Kelley, Attorney General of Michigan, Robert A. Derengoski, Solicitor General, and George M. Bourgon and Edward J. Setlock, Assistant Attorneys General, for the Appeal Board of the Michigan Employment Security Commission et al.; Abraham L. Zwerdling, Bruce A. Miller and Sheldon L. Klimist for Stinson et al., appellees.
   Per Curiam.

The motions to dismiss are granted and the appeal is dismissed for want of a substantial federal question.