Petitioners were convicted under 18 U.S.C. § 1503 for
endeavoring to bribe members of a jury in a previous trial of
petitioner Hoffa, for violating the Taft-Hartley Act, which
resulted in a hung jury. Substantial information and evidence were
given in the prosecution by Partin, a paid government informer,
who, throughout the Taft-Hartley trial, was repeatedly in Hoffa's
company -- in Hoffa's hotel suite, the hotel lobby, and elsewhere.
The Court of Appeals affirmed the convictions, and this Court
granted certiorari on the question whether the use of evidence
furnished by the informer rendered the convictions invalid.
Held:
1. No rights under the Fourth Amendment were violated by the
failure of Partin to disclose his role as a government informer.
When Hoffa made incriminating statements to or in the presence of
Partin, his invitee, he relied not on the security of the hotel
room, but on his misplaced confidence that Partin would not reveal
his wrongdoing. Pp.
385 U. S.
300-303.
2. Hoffa's conversations with Partin, being entirely voluntary,
involved no Fifth Amendment privilege against compulsory
self-incrimination. Pp.
385 U. S.
303-304.
3. There was no violation of any Sixth Amendment right to
counsel in this case. Pp.
385 U. S.
304-310.
(a) A Sixth Amendment violation resulting from Partin's
reporting to the Government on the activities of Hoffa's counsel in
preparing the defense of the Taft-Hartley trial might have
invalidated any conviction in that trial. But the conviction in the
subsequent trial for the different offense of endeavoring to bribe
jurors was not rendered invalid by the admission of Hoffa's
incriminating statements heard by Partin, none of which were made
in the presence of counsel or in connection with the legitimate
defense of the Taft-Hartley trial.
Caldwell v. United
States,
Page 385 U. S. 294
92 U.S.App.D.C. 355, 205 F.2d 879;
Coplon v. United
States, 89 U.S.App.D.C. 103, 191 F.2d 749, distinguished. Pp.
385 U. S.
306-309.
(b) The Government was not obliged to arrest Hoffa when it first
had probable cause to do so, though his admissions without counsel
after arrest might have been barred, since law enforcement officers
have no duty to halt a crime investigation when they have minimum
evidence to establish probable cause. Pp.
385 U. S.
309-310.
4. The use of a secret informer is not
per se
unconstitutional, and the use of Partin in this case did not
violate due process requirements, his veracity having been fully
subject to the safeguards of cross-examination and the trial
court's instructions to the jury. Pp.
385 U. S.
310-312.
349 F.2d 20, affirmed.
MR. JUSTICE STEWART delivered the opinion of the Court.
Over a period of several weeks in the late autumn of 1962, there
took place in a federal court in Nashville, Tennessee, a trial by
jury in which James Hoffa was charged with violating a provision of
the Taft-Hartley Act. That trial, known in the present record as
the Test Fleet trial, ended with a hung jury. The petitioners now
before us -- James Hoffa, Thomas Parks, Larry Campbell, and Ewing
King -- were tried and convicted
Page 385 U. S. 295
in 1964 for endeavoring to bribe members of that jury. [
Footnote 1] The convictions were
affirmed by the Court of Appeals. [
Footnote 2] A substantial element in the Government's,
proof that led to the convictions of these four petitioners was
contributed by a witness named Edward Partin, who testified to
several incriminating statements which he said petitioners Hoffa
and King had made in his presence during the course of the Test
Fleet trial. Our grant of certiorari was limited to the single
issue of whether the Government's use in this case of evidence
supplied by Partin operated to invalidate these convictions. 382
U.S. 1024.
The specific question before us, as framed by counsel for the
petitioners, is this:
"Whether evidence obtained by the Government by means of
deceptively placing a secret informer in the quarters and councils
of a defendant during one criminal trial so violates the
defendant's Fourth, Fifth and Sixth Amendment rights that
suppression of such evidence is required in a subsequent trial of
the same defendant on a different charge."
At the threshold, the Government takes issue with the way this
question is worded, refusing to concede that it "
placed' the
informer anywhere, much less that it did so `deceptively.'" In the
view we take of the matter, however, a resolution of this verbal
controversy is unnecessary to a decision of the constitutional
issues before us. The basic facts are clear enough, and a lengthy
discussion of the detailed minutiae to which a large portion of the
briefs and oral arguments was addressed would serve only to divert
attention from the real issues before us.
Page 385 U. S.
296
The controlling facts can be briefly stated. The Test Fleet
trial, in which James Hoffa was the sole individual defendant, was
in progress between October 22 and December 23, 1962, in Nashville,
Tennessee. James Hoffa was president of the International
Brotherhood of Teamsters. During the course of the trial, he
occupied a three-room suite in the Andrew Jackson Hotel in
Nashville. One of his constant companions throughout the trial was
the petitioner King, president of the Nashville local of the
Teamsters Union. Edward Partin, a resident of Baton Rouge,
Louisiana, and a local Teamsters Union official there, made
repeated visits to Nashville during the period of the trial. On
these visits he frequented the Hoffa hotel suite, and was
continually in the company of Hoffa and his associates, including
King, in and around the hotel suite, the hotel lobby, the
courthouse, and elsewhere in Nashville. During this period, Partin
made frequent reports to a federal agent named Sheridan concerning
conversations he said Hoffa and King had had with him and with each
other, disclosing endeavors to bribe members of the Test Fleet
jury. Partin's reports and his subsequent testimony at the
petitioners' trial unquestionably contributed, directly or
indirectly, to the convictions of all four of the petitioners.
[
Footnote 3]
Page 385 U. S. 297
The chain of circumstances which led Partin to be in Nashville
during the Test Fleet trial extended back at least to September of
1962. At that time, Partin was in jail in Baton Rouge on a state
criminal charge. He was
Page 385 U. S. 298
also under a federal indictment for embezzling union funds, and
other indictments for state offenses were pending against him.
Between that time and Partin's initial visit to Nashville on
October 22, he was released on bail on the state criminal charge,
and proceedings under the federal indictment were postponed. On
October 8, Partin telephoned Hoffa in Washington, D.C., to discuss
local union matters and Partin's difficulties with the authorities.
In the course of this conversation, Partin asked if he could see
Hoffa to confer about these problems, and Hoffa acquiesced. Partin
again called Hoffa on October 18, and arranged to meet him in
Nashville. During this period, Partin also consulted on several
occasions with federal law enforcement agents, who told him that
Hoffa might attempt to tamper with the Test Fleet jury and asked
him to be on the lookout in Nashville for such attempts, and to
report to the federal authorities any evidence of wrongdoing that
he discovered. Partin agreed to do so.
After the Test Fleet trial was completed, Partin's wife received
four monthly installment payments of $300 from government funds,
and the state and federal charges against Partin were either
dropped or not actively pursued.
Reviewing these circumstances in detail, the Government insists
the fair inference is that Partin went to Nashville on his own
initiative to discuss union business and his own problems with
Hoffa, that Partin ultimately cooperated closely with federal
authorities, only after he discovered evidence of jury tampering in
the Test Fleet trial, that the payments to Partin's wife were
simply in partial reimbursement of Partin's subsequent
out-of-pocket expenses, and that the failure to prosecute Partin on
the state and federal charges had no necessary connection with his
services as an informer. The findings of the trial court support
this version of the
Page 385 U. S. 299
facts, [
Footnote 4] and
these findings were accepted by the Court of Appeals as "supported
by substantial evidence." 349 F.2d at 36. But whether or not the
Government "placed" Partin with Hoffa in Nashville during the Test
Fleet trial, we proceed upon the premise that Partin was a
government informer from the time he first arrived in Nashville on
October 22, and that the Government compensated him for his
services as such. It is upon that premise that we consider the
constitutional issues presented.
Before turning to those issues, we mention an additional
preliminary contention of the Government. The
Page 385 U. S. 300
petitioner Hoffa was the only individual defendant in the Test
Fleet case, and Partin had conversations during the Test Fleet
trial only with him and with the petitioner King. So far as
appears, Partin never saw either of the other two petitioners
during that period. Consequently, the Government argues that, of
the four petitioners, only Hoffa has standing to raise a claim that
his Sixth Amendment right to counsel in the Test Fleet trial was
impaired, and only he and King have standing with respect to the
other constitutional claims.
Cf. Wong Sun v. United
States, 371 U. S. 471,
371 U. S.
487-488,
371 U. S.
491-492;
Jones v. United States, 362 U.
S. 257,
362 U. S.
259-267. It is clear, on the other hand, that Partin's
reports to the agent Sheridan uncovered leads that made possible
the development of evidence against petitioners Parks and Campbell.
But we need not pursue the nuances of these "standing" questions,
because it is evident, in any event, that none of the petitioners
can prevail unless the petitioner Hoffa prevails. For that reason,
the ensuing discussion is confined to the claims of the petitioner
Hoffa (hereinafter petitioner), all of which he clearly has
standing to invoke.
I
It is contended that only by violating the petitioner's rights
under the Fourth Amendment was Partin able to hear the petitioner's
incriminating statements in the hotel suite, and that Partin's
testimony was therefore inadmissible under the exclusionary rule of
Weeks v. United States, 232 U. S. 383. The
argument is that Partin's failure to disclose his role as a
government informer vitiated the consent that the petitioner gave
to Partin's repeated entries into the suite, and that, by listening
to the petitioner's statement,s Partin conducted an illegal
"search" for verbal evidence.
Page 385 U. S. 301
The preliminary steps of this argument are on solid ground. A
hotel room can clearly be the object of Fourth Amendment
protection, as much as a home or an office.
United States v.
Jeffers, 342 U. S. 48. The
Fourth Amendment can certainly be violated by guileful, as well as
by forcible, intrusions into a constitutionally protected area.
Gouled v. United States, 255 U. S. 298. And
the protections of the Fourth Amendment are surely not limited to
tangibles, but can extend as well to oral statements.
Silverman
v. United States, 365 U. S. 505.
Where the argument falls is in its misapprehension of the
fundamental nature and scope of Fourth Amendment protection. What
the Fourth Amendment protects is the security a man relies upon
when he places himself or his property within a constitutionally
protected area, be it his home or his office, his hotel room or his
automobile. [
Footnote 5] There,
he is protected from unwarranted governmental intrusion. And when
he puts something in his filing cabinet, in his desk drawer, or in
his pocket, he has the right to know it will be secure from an
unreasonable search or an unreasonable seizure. So it was that the
Fourth Amendment could not tolerate the warrantless search of the
hotel room in
Jeffers, the purloining of the petitioner's
private papers in
Gouled, or the surreptitious electronic
surveillance in
Silverman. Countless other cases which
have come to this Court over the years have involved a myriad of
differing factual contexts in which the protections of the Fourth
Amendment have been appropriately invoked. No doubt the future will
bring countless others. By nothing we say here do we either foresee
or foreclose factual
Page 385 U. S. 302
situations to which the Fourth Amendment may be applicable.
In the present case, however, it is evident that no interest
legitimately protected by the Fourth Amendment is involved. It is
obvious that the petitioner was not relying on the security of his
hotel suite when he made the incriminating statements to Partin or
in Partin's presence. Partin did not enter the suite by force or by
stealth. He was not a surreptitious eavesdropper. Partin was in the
suite by invitation, and every conversation which he heard was
either directed to him or knowingly carried on in his presence. The
petitioner, in a word, was not relying on the security of the hotel
room; he was relying upon his misplaced confidence that Partin
would not reveal his wrongdoing. [
Footnote 6] As counsel for the petitioner himself points
out, some of the communications with Partin did not take place in
the suite at all, but in the "hall of the hotel," in the "Andrew
Jackson Hotel lobby," and "at the courthouse."
Neither this Court nor any member of it has ever expressed the
view that the Fourth Amendment protects a wrongdoer's misplaced
belief that a person to whom he voluntarily confides his wrongdoing
will not reveal it. Indeed, the Court unanimously rejected that
very contention less than four years ago in
Lopez v. United
States, 373 U. S. 427. In
that case, the petitioner had been convicted of attempted bribery
of an internal revenue agent named Davis. The Court was divided
with regard to the admissibility in evidence of a surreptitious
electronic recording of an incriminating conversation Lopez had had
in his private office with Davis. But there was no dissent from the
view that testimony
Page 385 U. S. 303
about the conversation by Davis himself was clearly
admissible.
As the Court put it,
"Davis was not guilty of an unlawful invasion of petitioner's
office simply because his apparent willingness to accept a bribe
was not real.
Compare Wong Sun v. United States,
371 U. S.
471. He was in the office with petitioner's consent,
and, while there, he did not violate the privacy of the office by
seizing something surreptitiously without petitioner's knowledge.
Compare Gouled v. United States, supra. The only evidence
obtained consisted of statements made by Lopez to Davis, statements
which Lopez knew full well could be used against him by Davis if he
wished. . . ."
373 U.S. at
373 U. S. 438.
In the words of the dissenting opinion in
Lopez,
"The risk of being overheard by an eavesdropper or betrayed by
an informer or deceived as to the identity of one with whom one
deals is probably inherent in the conditions of human society. It
is the kind of risk we necessarily assume whenever we speak."
Id. at
373 U. S. 465.
See also Lewis v. United States, ante p.
385 U. S. 206.
Adhering to these views, we hold that no right protected by the
Fourth Amendment was violated in the present case.
II
The petitioner argues that his right under the Fifth Amendment
not to "be compelled in any criminal case to be a witness against
himself" was violated by the admission of Partin's testimony. The
claim is without merit.
There have been sharply differing views within the Court as to
the ultimate reach of the Fifth Amendment right against compulsory
self-incrimination. Some of those differences were aired last Term
in
Miranda v. Arizona, 384 U. S. 436,
384 U. S. 499,
384 U. S. 504,
384 U. S. 526.
But since at least as long ago as 1807, when Chief Justice Marshall
first
Page 385 U. S. 304
gave attention to the matter in the trial of Aaron Burr,
[
Footnote 7] all have agreed
that a necessary element of compulsory self-incrimination is some
kind of compulsion. Thus, in the
Miranda case, dealing
with the Fifth Amendment's impact upon police interrogation of
persons in custody, the Court predicated its decision upon the
conclusion
"that, without proper safeguards, the process of in-custody
interrogation of persons suspected or accused of crime contains
inherently compelling pressures which work to undermine the
individual's will to resist and to compel him to speak where he
would not otherwise do so freely. . . ."
384 U.S. at
384 U. S.
467.
In the present case, no claim has been or could be made that the
petitioner's incriminating statements were the product of any sort
of coercion, legal or factual. The petitioner's conversations with
Partin and in Partin's presence were wholly voluntary. For that
reason, if for no other, it is clear that no right protected by the
Fifth Amendment privilege against compulsory self-incrimination was
violated in this case.
III
The petitioner makes two separate claims under the Sixth
Amendment, and we give them separate consideration.
A
During the course of the Test Fleet trial, the petitioner's
lawyers used his suite as a place to confer with him and with each
other, to interview witnesses, and to plan the following day's
trial strategy. Therefore,
Page 385 U. S. 305
argues the petitioner, Partin's presence in and around the suite
violated the petitioner's Sixth Amendment right to counsel, because
an essential ingredient thereof is the right of a defendant and his
counsel to prepare for trial without intrusion upon their
confidential relationship by an agent of the Government, the
defendant's trial adversary. Since Partin's presence in the suite
thus violated the Sixth Amendment, the argument continues, any
evidence acquired by reason of his presence there was
constitutionally tainted, and therefore inadmissible against the
petitioner in this case. We reject this argument.
In the first place, it is far from clear to what extent Partin
was present at conversations or conferences of the petitioner's
counsel. Several of the petitioner's Test Fleet lawyers testified
at the hearing on the motion to suppress Partin's testimony in the
present case. Most of them said that Partin had heard, or had been
in a position to hear, at least some of the lawyers' discussions
during the Test Fleet trial. On the other hand, Partin himself
testified that the lawyers "would move you out" when they wanted to
discuss the case, and denied that he made any effort to "get into
or be present at any conversations between lawyers or anything of
that sort," other than engaging in such banalities as "how things
looked," or "how does it look?" He said he might have heard some of
the lawyers' conversations, but he didn't know what they were
talking about, "because I wasn't interested in what they had to say
about the case." He testified that he did not report any of the
lawyers' conversations to Sheridan, because the latter "wasn't
interested in what the attorneys said." Partin's testimony was
largely confirmed by Sheridan. Sheridan did testify, however, to
one occasion when Partin told him about a group of prospective
character witnesses being interviewed in the suite by one of the
petitioner's lawyers, who "was going
Page 385 U. S. 306
over" some written "questions and answers" with them. This
information was evidently relayed by Sheridan to the chief
government attorney at the Test Fleet trial. [
Footnote 8]
The District Court, in the present case, apparently credited
Partin's testimony, finding "there has been no interference by the
government with any attorney-client relationship of any defendant
in this case." The Court of Appeals accepted this finding. 349 F.2d
at 36. In view of Sheridan's testimony about Partin's report of the
interviews with the prospective character witnesses, however, we
proceed here on the hypothesis that Partin did observe and report
to Sheridan at least some of the activities of defense counsel in
the Test Fleet trial.
The proposition that a surreptitious invasion by a government
agent into the legal camp of the defense may violate the protection
of the Sixth Amendment has found expression in two cases decided by
the Court of Appeals for the District of Columbia Circuit,
Caldwell v. United States, 92 U.S.App. D C. 355, 205 F.2d
879, and
Coplon v. United States, 89 U.S.App.D.C. 103, 191
F.2d 749. Both of those cases dealt with government intrusion of
the grossest kind upon the confidential relationship between the
defendant and his counsel. In
Coplon, the
Page 385 U. S. 307
defendant alleged that government agents deliberately
intercepted telephone consultations between the defendant and her
lawyer before and during trial. In
Caldwell, the
agent,
"[i]n his dual capacity as defense assistant and Government
agent . . . , gained free access to the planning of the defense. .
. . Neither his dealings with the defense nor his reports to the
prosecution were limited to the proposed unlawful acts of the
defense: they covered many matters connected with the impending
trial."
92 U.S.App.D.C. at 356, 205 F.2d at 880.
We may assume that the
Coplon and
Caldwell
cases were rightly decided, and further assume, without deciding,
that the Government's activities during the Test Fleet trial were
sufficiently similar to what went on in
Coplon and
Caldwell to invoke the rule of those decisions.
Consequently, if the Test Fleet trial had resulted in a conviction,
instead of a hung jury, the conviction would presumptively have
been set aside as constitutionally defective.
Cf. Black v.
United States, ante p.
385 U. S. 26.
But a holding that it follows from this presumption that the
petitioner's conviction in the present case should be set aside
would be both unprecedented and irrational. In
Coplon and
in
Caldwell, the Court of Appeals held that the
Government's intrusion upon the defendant's relationship with his
lawyer "invalidates the trial at which it occurred." 89
U.S.App.D.C. at 114, 191 F.2d at 759; 92 U.S.App.D.C. at 357, 205
F.2d at 881. In both of those cases, the court directed a new
trial, [
Footnote 9] and the
second trial in
Caldwell resulted in a conviction which
this Court declined to review. 95 U.S.App.D.C. 35, 218 F.2d 370,
349 U.S. 930. The argument here, therefore, goes far beyond
anything decided in
Caldwell or in
Coplon. For if
the petitioner's argument were accepted,
Page 385 U. S. 308
not only could there have been no new conviction on the existing
charges in
Caldwell, but not even a conviction on other
and different charges against the same defendant.
It is possible to imagine a case in which the prosecution might
so pervasively insinuate itself into the councils of the defense as
to make a new trial on the same charges impermissible under the
Sixth Amendment. [
Footnote
10] But even if it were further arguable that a situation could
be hypothesized in which the Government's previous activities in
undermining a defendant's Sixth Amendment rights at one trial would
make evidence obtained thereby inadmissible in a different trial on
other charges, the case now before us does not remotely approach
such a situation.
This is so because of the clinching basic fact in the present
case that none of the petitioner's incriminating statements which
Partin heard were made in the presence of counsel, in the hearing
of counsel, or in connection in any way with the legitimate defense
of the Test Fleet prosecution. The petitioner's statements related
to the commission of a quite separate offense -- attempted bribery
of jurors -- and the statements were made to Partin out of the
presence of any lawyers.
Even assuming, therefore, as we have, that there might have been
a Sixth Amendment violation which might have made invalid a
conviction, if there had been one, in the Test Fleet case, the
evidence supplied by Partin in the present case was in no sense the
"fruit" of any such violation. In
Wong Sun v. United
States, 371 U. S. 471, a
case involving exclusion of evidence under
Page 385 U. S. 309
the Fourth Amendment, the Court stated that
"the more apt question in such a case is 'whether, granting
establishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploitation of that
illegality, or, instead, by means sufficiently distinguishable to
be purged of the primary taint.' Maguire, Evidence of Guilt, 221
(1059)."
371 U.S. at
371 U. S.
488.
Even upon the premise that this same strict standard of
excludability should apply under the Sixth Amendment -- a question
we need not decide -- it is clear that Partin's evidence in this
case was not the consequence of any "exploitation" of a Sixth
Amendment violation. The petitioner's incriminating statements to
which Partin testified in this case were totally unrelated in both
time and subject matter to any assumed intrusion by Partin into the
conferences of the petitioner's counsel in the Test Fleet trial.
These incriminating statements, all of them made out of the
presence or hearing of any of the petitioner's counsel, embodied
the very antithesis of any legitimate defense in the Test Fleet
trial.
The petitioner's second argument under the Sixth Amendment needs
no extended discussion. That argument goes as follows: not later
than October 25, 1962, the Government had sufficient ground for
taking the petitioner into custody and charging him with endeavors
to tamper with the Test Fleet jury. Had the Government done so, it
could not have continued to question the petitioner without
observance of his Sixth Amendment right to counsel.
Massiah v.
United States, 377 U. S. 201;
Escobedo v. Illinois, 378 U. S. 478.
Therefore, the argument concludes, evidence of statements
Page 385 U. S. 310
made by the petitioner subsequent to October 25 was
inadmissible, because the Government acquired that evidence only by
flouting the petitioner's Sixth Amendment right to counsel.
Nothing in
Massiah, in
Escobedo, or in any
other case that has come to our attention even remotely suggests
this novel and paradoxical constitutional doctrine, and we decline
to adopt it now. There is no constitutional right to be arrested.
[
Footnote 11] The police are
not required to guess, at their peril, the precise moment at which
they have probable cause to arrest a suspect, risking a violation
of the Fourth Amendment if they act too soon, and a violation of
the Sixth Amendment if they wait too long. Law enforcement officers
are under no constitutional duty to call a halt to a criminal
investigation the moment they have the minimum evidence to
establish probable cause, a quantum of evidence which may fall far
short of the amount necessary to support a criminal conviction.
IV
Finally, the petitioner claims that, even if there was no
violation -- "as separately measured by each such Amendment" -- of
the Fourth Amendment, the compulsory self-incrimination clause of
the Fifth Amendment, or of the Sixth Amendment in this case, the
judgment of conviction must nonetheless be reversed. The argument
is based upon the Due Process Clause of the Fifth Amendment. The
"totality" of the Government's conduct during the Test Fleet trial
operated, it is said, to
"'offend those canons of decency and fairness which express the
notions of justice of English-speaking peoples
Page 385 U. S. 311
even toward those charged with the most heinous offenses'
(
Rochin v. California, 342 U. S. 165,
342 U. S.
169)."
The argument boils down to a general attack upon the use of a
government informer as "a shabby thing in any case," and to the
claim that, in the circumstances of this particular case, the risk
that Partin's testimony might be perjurious was very high. Insofar
as the general attack upon the use of informers is based upon
historic "notions" of "English-speaking peoples," it is without
historical foundation. In the words of Judge Learned Hand,
"Courts have countenanced the use of informers from time
immemorial; in cases of conspiracy, or in other cases when the
crime consists of preparing for another crime, it is usually
necessary to rely upon them or upon accomplices, because the
criminals will almost certainly proceed covertly. . . ."
United States v. Dennis, 183 F.2d 201, at 224.
This is not to say that a secret government informer is to the
slightest degree more free from all relevant constitutional
restrictions than is any other government agent.
See Massiah v.
United States, 377 U. S. 201. It
is to say that the use of secret informers is not
per
se unconstitutional.
The petitioner is quite correct in the contention that Partin,
perhaps even more than most informers, may have had motives to lie.
But it does not follow that his testimony was untrue, nor does it
follow that his testimony was constitutionally inadmissible. The
established safeguards of the Anglo-American legal system leave the
veracity of a witness to be tested by cross-examination, and the
credibility of his testimony to be determined by a properly
instructed jury. At the trial of this case, Partin was subjected to
rigorous cross-examination, and the extent and nature of his
dealings with federal and state authorities were insistently
explored. [
Footnote 12]
Page 385 U. S. 312
The trial judge instructed the jury, both specifically [
Footnote 13] and generally,
[
Footnote 14] with regard to
assessing Partin's credibility. The Constitution does not require
us to upset the jury's verdict.
Affirmed.
MR. JUSTICE WHITE and MR. JUSTICE FORTAS took no part in the
consideration or decision of these cases.
[For opinion of MR. JUSTICE DOUGLAS,
see post, p.
385 U. S.
340.]
Page 385 U. S. 313
* Together with No. 33,
Parks v. United States, No. 34,
Campbell v. United States, and No. 35,
King v. United
States, also on certiorari to the same court.
[
Footnote 1]
Petitioners Hoffa, Parks, and Campbell were convicted under 18
U.S.C. § 1503 for endeavoring corruptly to influence Test Fleet
juror Gratin Fields. Petitioners Hoffa and King were convicted of a
similar offense involving Test Fleet juror Mrs. James M.
Paschal.
[
Footnote 2]
349 F.2d 20.
[
Footnote 3]
Partin testified at the trial of this case that petitioners
Hoffa and King had made the following statements during the course
of the Test Fleet trial:
On October 22, the day Partin first arrived in Nashville, King
told him that a meeting had been "set up on the jury that night."
That evening, Hoffa told Partin that he wanted Partin to stay in
Nashville in order to call on some people. Hoffa explained "that
they was going to get to one juror or try to get to a few scattered
jurors and take their chances." The next day, Partin was told by
Hoffa that Hoffa might want him "to pass something for him." As
Hoffa said this, he hit his rear pocket with his hand. On October
25, the day after Test Fleet juror James Tippens had reported to
the trial judge that he had been approached with a bribe offer,
Partin asked Hoffa about his wanting Partin to "pass something."
Hoffa replied, "The dirty bastards went in and told the Judge that
his neighbor had offered him $10,000," and added, "We are going to
have to lay low for a few days." King told Partin on October 26
that he intended to influence a female juror, Mrs. Paschal, in
Hoffa's favor, and added that the juror and her husband, a highway
patrolman, "loved money, and $10,000.00 [is] a lot of money." Hoffa
informed Partin on October 29 that he "would pay 15 or $20,000,
whatever -- whatever it cost to get to the jury." On November 5, in
Partin's presence, Hoffa berated King for failing in his promises
to "get the patrolman." King then told Partin that he was arranging
a meeting with the highway patrolman, but, on November 7, King
admitted to Partin that he had not yet contacted the highway
patrolman, and that Hoffa had been complaining "about not getting
to the jury." Hoffa criticized King in the presence of Partin on
November 14 for "not making a contact like he told him he would,"
adding that he "wanted some insurance." Later the same day, King
told Partin that he had arranged to meet with the highway
patrolman, and that he had prepared a cover story to allay
suspicion. On November 15, Hoffa asked King in Partin's presence
whether he had "made the contacts." King related to Partin on
November 20 a meeting that King had had with juror Paschal's
husband, stating that the highway patrolman wanted a promotion,
rather than money. The same day, Hoffa told Partin that he was
disturbed because "the Highway Patrolman wouldn't take the money,"
adding that, if he had "taken the money, it would have pinned him
down, and he couldn't have backed up."
There was other evidence at the trial that petitioner Campbell,
a union associate of Hoffa's, and petitioner Parks, Campbell's
uncle, had made bribe offers to Gratin Fields, a Negro juror. On
November 7, according to Partin, Hoffa told Partin that he had "the
colored male juror in [his] hip pocket," and that Campbell "took
care of it." Hoffa told Partin that Campbell, a Negro, was related
to Fields, and that, while Fields had refused the bribe, he would
not "go against his own people." Hoffa concluded,
"[I]t looks like our best bet is a hung jury unless we can get
to the foreman of the jury. If they have a hung jury, it will be
the same as acquittal, because they will never try the case
again."
[
Footnote 4]
In denying the defense motion to suppress Partin's testimony,
the trial court stated:
"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 trial court's memorandum denying a motion for a new trial
contained the following statement:
"The action of the Court in denying the motions of the
defendants to suppress the testimony of the witness Partin is
complained of in Grounds 41 and 42 of the motions for new trial. It
is contended that one of the findings of fact of the Court with
respect to the motion to suppress was rendered incorrect by
subsequent evidence in the case. It is contended that the telephone
transcriptions of the telephone calls between Partin and Hoffa on
October 8 and 18, 1962, established that the defendant Hoffa did
not invite Partin to Nashville. The telephone transcriptions
reflect that the defendant Hoffa agreed to an appointment to see
Partin in Nashville. Even if the defendant Hoffa did not initiate
the invitation of Partin to come to Nashville, but rather Partin
solicited the invitation, this does not in any way alter the
Court's finding that the Government did not place or keep Partin
with the defendant Hoffa. . . . The Government requested of Partin
only that he report information of jury tampering or other illegal
activity of which he became aware. Partin voluntarily furnished
such information. He remained in Nashville or returned to Nashville
either at the request or with the consent of the defendant Hoffa,
and not at the instruction of the Government ."
[
Footnote 5]
We do not deal here with the law of arrest under the Fourth
Amendment.
[
Footnote 6]
The applicability of the Fourth Amendment if Partin had been a
stranger to the petitioner is a question we do not decide.
Cf.
Lewis v. United States, ante p.
385 U. S. 206.
[
Footnote 7]
"Many links frequently compose that chain of testimony which is
necessary to convict any individual of a crime. It appears to the
court to be the true sense of the rule that no witness is
compelled to furnish any one of them against himself. . .
."
In re Willie, 25 Fed.Cas. 38, 40 (No. 14,692e)
(C.C.D.Va. 1807). (Emphasis supplied.)
[
Footnote 8]
Petitioner maintains that the cross-examination of one of these
character witnesses at the Test Fleet trial shows that the
prosecution availed itself of the information transmitted by
Partin. The following exchange between the prosecutor and witness
occurred:
"Q. Did [defense counsel] give you anything to read, Mr.
Sammut?"
"A. No, sir, not even a newspaper."
"Q. Not even a newspaper? I am not talking about newspapers, I
am talking with respect to your testimony. Did they give you
anything to read with respect to your testimony?"
"A. After I talked to them."
"Q. They gave you written questions and answers, didn't
they?"
"A. The questions that they asked me and the questions that I
answered."
[
Footnote 9]
In
Coplon, the grant of a new trial was conditioned on
the defendant's proof of her wiretapping allegations.
[
Footnote 10]
In the
Caldwell case, the Court of Appeals implicitly
recognized the possibility of a case arising in which a showing
could be made of "prejudice to the defense of such a nature as
would necessarily render a subsequent trial unfair to the accused."
92 U.S.App.D.C. 355, 357, n. 11, 205 F.2d 879, 881-882, n. 11.
[
Footnote 11]
We put to one side the extraordinary problems that would have
arisen if the petitioner had been arrested and charged during the
progress of the Test Fleet trial.
[
Footnote 12]
Partin underwent cross-examination for an entire week. The
defense was afforded wide latitude to probe Partin's background,
character, and ties to the authorities; it was permitted to explore
matters that are normally excludable, for example, whether Partin
had been charged with a crime in 1942, even though that charge had
never been prosecuted.
[
Footnote 13]
The judge instructed the jury that it was petitioner's
contention that he
"did not invite Edward Partin to come to Nashville, Tennessee,
during the trial of [the Test Fleet case], but that the said Edward
Partin came of his own accord under the pretense of attempting to
convince Mr. Hoffa that the Teamsters local union in Baton Rouge,
Louisiana, should not be placed in trusteeship by reason of
Partin's being under indictment and other misconduct on Partin's
part, but for the real purpose of fabricating evidence against
Hoffa in order to serve his own purposes and interests."
[
Footnote 14]
The jury was instructed:
"You should carefully scrutinize the testimony given and the
circumstances under which each witness has testified, and every
matter in evidence which tends to indicate whether the witness is
worthy of belief. Consider each witness' intelligence, his motives,
state of mind, his demeanor and manner while on the witness stand.
Consider also any relation each witness may bear to either side of
the case. . . . All evidence of a witness whose self-interest is
shown from either benefits received, detriments suffered, threats
or promises made, or any attitude of the witness which might tend
to prompt testimony either favorable or unfavorable to the accused
should be considered with caution and weighed with care."
MR. CHIEF JUSTICE WARREN, dissenting.
I cannot agree either with the opinion of the Court affirming
these convictions or with the separate opinions of MR. JUSTICE
CLARK and MR. JUSTICE DOUGLAS to the effect that the writs of
certiorari were improvidently granted.
I
As to the latter, it seems to me that the finding of the
District Court which so troubles my Brothers CLARK and DOUGLAS is,
in fact, no roadblock to our review of the important questions
presented by the petitions. It has long been settled that this
Court will not be bound by the findings of lower courts when it is
alleged that fundamental constitutional rights have been violated.
Jacobellis v. Ohio, 378 U. S. 184
(1964);
Haynes v. Washington, 373 U.
S. 503 (1963);
Watts v. Indiana, 338 U. S.
49 (1949);
Hooven & Allison Co. v. Evatt,
324 U. S. 652
(1945);
Norris v. Alabama, 294 U.
S. 587 (1935). We have said,
"The duty of this Court to make its own independent examination
of the record when federal constitutional deprivations are alleged
is clear, resting, as it does, on our solemn responsibility for
maintaining the Constitution inviolate."
Napue v. Illinois, 360 U. S. 264,
360 U. S. 271
(1959).
The finding in question here is not one which the District Judge
arrived at by resolving contradictory testimony on the basis of
credibility. Findings of fact based on crediting the testimony of
some witnesses and discrediting the testimony of others may
properly be accorded some insulation from appellate review because
of the superior opportunity of the trial judge to observe the
demeanor of the witnesses. In this case, however, the testimony
concerning the circumstances surrounding Partin's entry into
Hoffa's councils was not substantially
Page 385 U. S. 314
in dispute. While those circumstances are set forth in greater
detail
infra, a brief summary discloses that Partin, after
discussing Hoffa with federal agents and learning of their intense
and mutually beneficial interest, successfully solicited an
invitation to meet with Hoffa. Partin's release from jail was
assisted by the federal agents, and he was compensated in a
financial sense as well; in return, he kept the federal agents
fully informed of all that occurred from the outset of his contact
with Hoffa.
Surely the only reasonable construction of these facts is that
Partin was acting as a paid federal informer when he traveled to
Nashville and attached himself to Hoffa. And the fact that Hoffa,
on Partin's urging, agreed to a meeting in Nashville is not
inconsistent with this conclusion. An invasion of basic rights made
possible by prevailing upon friendship with the victim is no less
proscribed than an invasion accomplished by force.
See Massiah
v. United States, 377 U. S. 201
(1964);
Gouled v. United States, 255 U.
S. 298 (1921).
Moreover, at the time we granted the petitions for certiorari in
these cases, we knew exactly what we know now. The findings of the
District Court were in the record then before us, and no new facts
to change the situation have since come to light. In short, there
is nothing which should prevent us from facing up to the important
questions presented and determining whether the convictions can
stand either in light of the Constitution or under our power of
supervision over the administration of justice in federal
courts.
II
For me, this case and two others decided today (
Lewis v.
United States, ante, p.
385 U. S. 206, and
Osborn v. United States, post, p.
385 U. S. 323)
present for comparison different facets of the Government's use of
informers and undercover
Page 385 U. S. 315
agents. In two cases of the set, I have voted to sustain the
activity of the Government. But, in this case, I find it impossible
to do so because the nature of the official practices evidenced
here is offensive to the fair administration of justice in federal
courts.
At this late date in the annals of law enforcement, it seems to
me that we cannot say either that every use of informers and
undercover agents is proper or, on the other hand, that no uses
are. There are some situations where the law could not adequately
be enforced without the employment of some guile or
misrepresentation of identity. A law enforcement officer performing
his official duties cannot be required always to be in uniform or
to wear his badge of authority on the lapel of his civilian
clothing. Nor need he be required in all situations to proclaim
himself an arm of the law. It blinks the realities of
sophisticated, modern-day criminal activity and legitimate law
enforcement practices to argue the contrary. However, one of the
important duties of this Court is to give careful scrutiny to
practices of government agents when they are challenged in cases
before us, in order to insure that the protections of the
Constitution are respected and to maintain the integrity of federal
law enforcement.
I find these three cases which we decide today quite
distinguishable from each other in this regard. Although all three
involve what may be termed official deception in order to gather
evidence for criminal prosecutions, the police practices reviewed
are essentially different. The simplest of the three for me is
Lewis, wherein a federal narcotics agent, having reason to
believe that Lewis was a trafficker in narcotics, called him on the
telephone using an assumed name and told him that a mutual friend
had said Lewis sold narcotics. Lewis affirmed the nature of his
occupation and invited the agent to his place of business which, as
an incidental matter, turned out also
Page 385 U. S. 316
to be his home. The agent went there, purchased narcotics, and
arranged for future dealings to occur at the same place, but on a
reduced-price basis. Later, a second purchase of narcotics was
executed by the agent in the same manner.
In
Lewis, then, there was no intrusion upon the privacy
of the household. Nothing was heard, seen, or taken by the agent
that was not a necessary part of the business transactions between
him and Lewis. The purpose of the agent's visits was to buy
narcotics from Lewis, and the details of their business dealings
were all that concerned him.
Lewis simply is not a case
where an undercover agent invaded a place used both as a business
location and a home and then, overtly or covertly, either seized
something or observed or heard something unrelated to the business
purpose of his visit. As we said in affirming Lewis' conviction,
the principles elaborated in
Gouled v. United States,
255 U. S. 298
(1921), would protect against such overreaching. We do not endorse
unconscionable activities or the use of an unreliable informer when
we sustain the undercover work of the agent responsible for Lewis'
conviction.
Compare Sherman v. United States, 356 U.
S. 369 (1958).
In the
Osborn case, the petitioner employed Robert
Vick, a police officer of Nashville, Tennessee, to investigate
persons who were members of a panel from which a federal criminal
jury was to be selected in a prior trial of James Hoffa in that
city. Although he knew Vick's loyalty was due the police
department, when he learned that Vick had a cousin on the panel, he
urged Vick to offer the cousin $10,000 in return for the latter's
promise to vote for acquittal if selected to sit on the petit jury.
Vick informed federal authorities of this proposal, and made an
affidavit to that effect for the judge who was to preside at the
Hoffa trial. The judge, in order to determine the truthfulness of
the affidavit and to protect
Page 385 U. S. 317
the integrity of the trial, authorized the equipping of Vick
with a recording device to be used in further conversations with
petitioner. I see nothing wrong with the Government's thus
verifying the truthfulness of the informer and protecting his
credibility in this fashion. [
Footnote
2/1]
Lopez v. United States, 373 U.
S. 427 (1963). This decision in no sense supports a
conclusion that unbridled use of electronic recording equipment is
to be permitted in searching out crime. And it does not lend
judicial sanction to wiretapping, electronic "bugging," or any of
the other questionable spying practices that are used to invade
privacy and that appear to be increasingly prevalent in our country
today.
Cf. Silverman v. United States, 365 U.
S. 505 (1961);
Black v. United States, ante, p.
385 U. S. 26;
United States v. Schipani, 362 F.2d 825,
cert. denied,
post, p. 934,
rehearing granted, judgment vacated, and
case remanded on suggestion of Solicitor General, post, p.
372.
But I consider both
Lewis and Osborn to be materially,
even fundamentally, different from this
Hoffa case. Here,
Edward Partin, a jailbird languishing in a Louisiana jail under
indictments for such state and federal crimes as embezzlement,
kidnapping, and manslaughter (and soon to be charged with perjury
and assault), contacted federal authorities and told them he was
willing to become, and would be useful as, an informer against
Hoffa, who was then about to be tried in the Test Fleet case. A
motive for his doing this is immediately apparent -- namely, his
strong desire to work his way out of jail and out of his various
legal entanglements with the
Page 385 U. S. 318
State and Federal Governments. [
Footnote 2/2] And it is interesting to note that, if
this was his motive, he has been uniquely successful in satisfying
it. In the four years since he first volunteered to be an informer
against Hoffa he has not been prosecuted on any of the serious
federal charges for which he was at that time jailed, and the state
charges have apparently vanished into thin air. Shortly after
Partin made contact with the federal authorities and told them of
his position in the Baton
Page 385 U. S. 319
Rouge Local of the Teamsters Union and of his acquaintance with
Hoffa, his bail was suddenly reduced from $50,000 to $5,000 and he
was released from jail. He immediately telephoned Hoffa, who was
then in New Jersey, and, by collaborating with a state law
enforcement official, surreptitiously made a tape recording of the
conversation. A copy of the recording was furnished to federal
authorities. Again on a pretext of wanting to talk with Hoffa
regarding Partin's legal difficulties, Partin telephoned Hoffa a
few weeks later and succeeded in making a date to meet in
Nashville, where Hoffa and his attorneys were then preparing for
the Test Fleet trial. Unknown to Hoffa, this call was also
recorded, and again federal authorities were informed as to the
details.
Upon his arrival in Nashville, Partin manifested his
"friendship" and made himself useful to Hoffa, thereby worming his
way into Hoffa's hotel suite and becoming part and parcel of
Hoffa's entourage. As the "faithful" servant and factotum of the
defense camp which he became, he was in a position to overhear
conversations not directed to him, many of which were between
attorneys and either their client or prospective defense witnesses.
Pursuant to the general instructions he received from federal
authorities to report "any attempts at witness intimidation or
tampering with the jury," "anything illegal," or even "anything of
interest," Partin became the equivalent of a bugging device which
moved with Hoffa wherever he went. Everything Partin saw or heard
was reported to federal authorities, and much of it was ultimately
the subject matter of his testimony in this case. For his services,
he was well paid by the Government, both through devious and secret
support payments to his wife and, it may be inferred, by executed
promises not to pursue the indictments under which he was charged
at the time he became an informer.
Page 385 U. S. 320
This type of informer and the uses to which he was put in this
case evidence a serious potential for undermining the integrity of
the truthfinding process in the federal courts. Given the
incentives and background of Partin, no conviction should be
allowed to stand when based heavily on his testimony. And that is
exactly the quicksand upon which these convictions rest, because,
without Partin, who was the principal government witness, there
would probably have been no convictions here. Thus, although
petitioners make their main arguments on constitutional grounds and
raise serious Fourth and Sixth Amendment questions, it should not
even be necessary for the Court to reach those questions. For the
affront to the quality and fairness of federal law enforcement
which this case presents is sufficient to require an exercise of
our supervisory powers. As we said in ordering a new trial in
Mesarosh v. United States, 352 U. S.
1,
352 U. S. 14
(1956), a federal case involving the testimony of an unsavory
informer who, the Government admitted, had committed perjury in
other cases:
"This is a federal criminal case, and this Court has supervisory
jurisdiction over the proceedings of the federal courts. If it has
any duty to perform in this regard, it is to see that the waters of
justice are not polluted. Pollution having taken place here, the
condition should be remedied at the earliest opportunity."
"
* * * *"
"The government of a strong and free nation does not need
convictions based upon such testimony. It cannot afford to abide
with them."
See also McNabb v. United States, 318 U.
S. 332,
318 U. S. 341
(1943).
I do not say that the Government may never use as a witness a
person of dubious or even bad character. In performing its duty to
prosecute crime, the Government must take the witnesses as it finds
them. They may
Page 385 U. S. 321
be persons of good, bad, or doubtful credibility, but their
testimony may be the only way to establish the facts, leaving it to
the jury to determine their credibility. In this case, however, we
have a totally different situation. Here, the Government reaches
into the jailhouse to employ a man who was himself facing
indictments far more serious (and later including one for perjury)
than the one confronting the man against whom he offered to inform.
It employed him not for the purpose of testifying to something that
had already happened, but rather for the purpose of infiltration to
see if crimes would in the future be committed. The Government, in
its zeal, even assisted him in gaining a position from which he
could be a witness to the confidential relationship of attorney and
client engaged in the preparation of a criminal defense. And, for
the dubious evidence thus obtained, the Government paid an enormous
price. Certainly if a criminal defendant insinuated his informer
into the prosecution's camp in this manner, he would be guilty of
obstructing justice. I cannot agree that what happened in this case
is in keeping with the standards of justice in our federal system,
and I must, therefore, dissent.
[
Footnote 2/1]
The recording was not used here as a means to avoid calling the
informer to testify. As I noted in my opinion concurring in the
result in
Lopez (373 U.S. at
373 U. S.
441), I would not sanction the use of a secretly made
recording other than for the purposes of corroborating the
testimony of a witness who can give first-hand testimony concerning
the recorded conversations and who is made available for
cross-examination.
[
Footnote 2/2]
One Sydney Simpson, who was Partin's cellmate at the time the
latter first contacted federal agents to discuss Hoffa, has
testified by affidavit as follows:
"Sometime in September, 1962, I was transferred from the
Donaldsonville Parish Jail to the Baton Rouge Parish Jail. I was
placed in a cell with Partin. For the first few days, Partin acted
sort of brave. Then, when it was clear that he was not going to get
out in a hurry, he became more excited and nervous. After I had
been in the same cell with Partin for about three days, Partin
said, 'I know a way to get out of here. They want Hoffa more than
they want me.' Partin told me that he was going to get one of the
deputies to get Bill Daniels. Bill Daniels is an officer in the
State of Louisiana. Partin said he wanted to talk to Daniels about
Hoffa. Partin said that he was going to talk to Captain Edwards and
ask him to get Daniels. A deputy, whose name is not known to me,
came and took Partin from the cell. Partin remained away for
several hours."
"A few days later, Partin was released from the jail. From the
day when I first saw the deputy until the date when Partin was
released, Partin was out of the cell most of the day and sometimes
part of the night. On one occasion, Partin returned to the cell and
said, 'It will take a few more days and we will have things
straightened out, but don't worry.' Partin was taken in and out of
the cell frequently each day. Partin told me during this time that
he was working with Daniels and the FBI to frame Hoffa. On one
occasion, I asked Partin if he knew enough about Hoffa to be of any
help to Daniels and the FBI, and Partin said, 'It doesn't make any
difference. If I don't know it, I can fix it up.'"
"While we were in the cell, I asked Partin why he was doing this
to Hoffa. Partin replied: 'What difference does it make? I 'm
thinking about myself. Aren't you thinking about yourself? I don't
give a damn about Hoffa. . . .'"
R. 171-172.
MR. JUSTICE CLARK, joined by MR. JUSTICE DOUGLAS.
I would dismiss the writs of certiorari as improvidently
granted.
The writs of certiorari granted by the Court in these cases are
limited to the following question:
"Whether evidence obtained by the Government by means of
deceptively placing a secret informer in the quarters and councils
of a defendant during one criminal trial so violates the
defendant's Fourth, Fifth and Sixth Amendment rights that
suppression of such evidence is required in a subsequent trial of
the same defendant on a different charge. "
Page 385 U. S. 322
My examination of the record reveals that, at the hearing on
petitioners' motion to suppress the evidence obtained by the
informer, Partin, the District Judge found that
"the government did not place this witness, Mr. Partin, in the
defendants' midst . . . ; rather, that he was knowingly and
voluntarily placed in their midst by one of the defendants
[Hoffa]."
This specific finding was approved by the Court of Appeals as
being "supported by substantial evidence, and . . . not clearly
erroneous." 349 F.2d at 36. No attack is made here on the
findings.
It has long been the rule of this Court that it
"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,
336 U. S. 275
(1949). My careful examination of the record shows that there is a
choice here between two permissible views as to the weight of the
evidence. The District Judge found the weight of the evidence to be
with the Government, and the Court of Appeals has approved his
finding. I cannot say on this record that it is clearly erroneous.
* United
States v. Yellow Cab Co., 338 U. S. 338,
338 U. S. 342
(1949).
In the light of this finding, by which we are bound, there is no
issue before us for decision, since no evidence was "obtained by
the Government by means of deceptively placing a secret informer in
the quarters and councils of" petitioner Hoffa.
I would therefore dismiss the writs as improvidently
granted.
* At one point, the informer, Partin, testified: "Mr. Hoffa is
the one told me he wanted me to stick around." Petitioners' own
witnesses testified that Partin was in the suite "virtually every
day," as well as the "nightly meetings," had "ready access" to the
files and offices, and acted as "sergeant-at-arms" just outside the
door of the suite. Hoffa did not testify at the hearing on the
motion to suppress.