Applicants, who were found in civil contempt after refusing to
testify before a grand jury, have applied for a stay, contending
that they and their attorneys were subjected to illegal electronic
surveillance. The Government denied such surveillance with respect
to the applicants, and asserted its unawareness thereof with
respect to the attorneys, but did not show that diligent inquiry
had been made.
Held: A stay is granted until the matter can be
presented to, and acted on by, the full Court.
MR. JUSTICE DOUGLAS, Circuit Justice.
The Court of Appeals granted a stay in this case until 5:30 p.m.
(P.s.t.) today. While the application was filed here October 28,
1972, I did not desire to act until the Solicitor General had time
to respond. His response came in yesterday afternoon.
My conclusion is that the case is analogous to the
Ellsberg case (
Russo v. Byrne, No. 72-307, O.T.
1972) now before the Court; but is more particularly related to
Black v. United States, 385 U. S. 26, and
O'Brien v. United States, 386 U.
S. 345.
The issue of electronic surveillance in the present case raises
questions under the Sixth as well as the Fourth Amendment. Central
is the question whether the unawareness of the prosecution is
sufficient to bring to an end the judicial inquiry, or whether some
diligent search of the prosecution is necessary.
* In
Black, a new
Page 409 U. S. 1239
trial was ordered even though the prosecutor did not know he had
in his possession attorney-client conversations and even though
none of them was used.
I have concluded to grant a stay, good until the matter can be
presented to the full Court and until the Court acts on it.
* While the prosecution filed affidavits that none of
applicants' conversations was "bugged," there had been no search
for any conversations of their attorneys. It would seem that a
client is an "aggrieved" person within the meaning of 18 U.S.C. §§
2510(11) and 3504(a)(1) when and if the conversations of his
attorney are "bugged" and used against him.