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Attorney Overhearings
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Overhearings of attorneys and defense counsel staff involve
Sixth
Amendment, rather than Fourth Amendment rights, and should be
handled somewhat
differently.
Although there is always an obligation to make complete,
voluntary
disclosure to the court when an overhearing of the defense staff
concerning a
trial is discovered, the Department is under no obligation to
conduct a search
for such overhearings absent a showing that conversations relating
to the conduct
of the defense may have been overheard. In Black v. United
States, 385
U.S. 26 (1966), and O'Brien v. United States, 386 U.S. 345
(1967), the
United States recognized its affirmative obligation to bring to a
court's
attention any overhear of which it was aware that related to the
defendant's
case, whether or not a demand is made for such overhearings.
See
Dellinger, supra, at 957. In short, the government
must inform the
court of all overhearings of a defendant's attorneys which are
known. However,
a "mere assertion" is insufficient to trigger an obligation to
conduct a search
for Sixth Amendment overhearings; some minimum showing is required
before a
search must be undertaken.
The reason for this difference is that a defendant's Sixth
Amendment rights
are not implicated when defense counsel is overheard, unless the
conversations
overheard are relevant to the representation of the particular
client in the
matter at hand. See United States v. Union Nacional de
Trabajadores, 576 F.2d 388, 394 (1st Cir. 1978); United
States v.
Vielguth, 502 F.2d 1257, 1260 (9th Cir. 1974).
An example of the minimum showing required before the
government must
respond to a claim that counsel had been overheard is found in
United States
v. Alter, 482 F.2d 1016, 1026 (9th Cir. 1973). The court
stated that the
claimant must at least show by affidavit:
- The specific facts which reasonably lead the affiant to
believe that
named counsel for the named (defendant) has been subjected to
electronic
surveillance;
- The dates of such suspected surveillance;
- The outside dates of representation of defendant by the lawyer
during the
period of surveillance;
- The identity of the person(s), by name or description,
together with their
respective telephone numbers, with whom the lawyer (or his agents
or employees)
was communicating at the time the claimed surveillance took place;
and
- Facts showing some connection between possible electronic
surveillance and
the (defendant) who asserts the claim . . .
When these elements appear by affidavit or other evidence, the
government
must affirm or deny illegal surveillance. See United
States v.
Alter, supra, at 1026.
As guidance, searches for attorney overhearings should be
resisted unless
the defendant makes at least the minimal showing required by
Alter, and
any such conducted should be strictly limited to the time period
during which the
attorney legally represented the defendant. A standard similar to
that in
Alter is set forth in Beverly v. United States, 468
F.2d 732, 752
(5th Cir. 1972).
Once the defendant has established, in accordance with
Alter, a
prima facie case that electronic surveillance of counsel has
occurred, the
government has an obligation to conduct a search of the appropriate
agencies.
Any intercepted communications of defense counsel or the defense
staff, will be
reported by the agency conducting the search to the Office of
Enforcement
Operations.
Any questions concerning the above may be referred to the
Policy and
Statutory Enforcement Unit of the Office of Enforcement Operations
at (202)
514-1077.
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