Osborn v. United States, 385 U.S. 323 (1966)

Osborn v. United States

No. 29

Argued October 12-13
Decided December 12, 1966
385 U.S. 323

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Syllabus

Petitioner, a lawyer, was indicted under 18 U.S.C. § 1503 for endeavoring to bribe a member of the jury panel in a prospective federal criminal trial. To investigate the background of potential jurors, he had employed a Nashville policeman, who had, unknown to petitioner, agreed to report to federal agents any "illegal activities" he might observe. The investigator reported to federal agents that, when he advised petitioner that he had a relative on the jury panel, petitioner expressed an interest in approaching him. An affidavit to this effect was presented to the District Court judges, who authorized the use of an electronic device to record further conversations between petitioner and the investigator. A tape recording of a subsequent conversation was admitted at petitioner’s trial. He was convicted and the Court of Appeals affirmed the conviction.

Held:

1. The use of a recording device here under "the procedure of antecedent justification before a magistrate that is central to the Fourth Amendment" as "a precondition of lawful electronic surveillance" was permissible, and the recording itself was properly admitted in evidence. Pp. 327-331.

2. Entrapment was not established as a matter of law, for, at most, the investigator afforded petitioner "opportunities or facilities" for the commission of a criminal offense, a far cry from entrapment. Pp. 331-332.

3. Since this statute makes an offense of any proscribed "endeavor," a term which is not burdened with the technicalities of the word "attempt," the fact that the investigator did not approach the venireman and did not intend to approach him does not negate a violation of 18 U.S.C. § 1503. Pp. 332-333.

350 F.2d 497, affirmed.