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O'Brien v. United States

U.S.
Mar 20, 1967
386 U.S. 345 (1967)

Summary

granting certiorari and vacating conviction where, in response to petition for certiorari, Solicitor General informed Court that electronic surveillance of attorney-client conversations had taken place

Summary of this case from Matter of Grand Jury Proceedings of Aug., 1984

Opinion

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.

No. 823.

Decided March 20, 1967.

Certiorari granted; 365 F.2d 601, vacated and remanded.

Philip A. Gillis for O'Brien and Ivan Barris for Parisi, petitioners.

Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Mervyn Hamburg for the United States.


The petition for a writ of certiorari is granted, judgment vacated and the case is remanded to the United States District Court for the Eastern District of Michigan for a new trial should the Government seek to prosecute petitioners anew. Black v. United States, 385 U.S. 26.


Petitioners in this case, Charles O'Brien and Thomas Parisi, were convicted on several counts of removing merchandise from a bonded area under the supervision of the United States Customs Service, in violation of 18 U.S.C. § 549. The items involved were, on the first count, applicable only to petitioner O'Brien, 14 cases of marble slabs; on the second count, a marble statue of St. Theresa; on the third count, 21 cases of valves and valve handles.

The issues raised in the petition for certiorari involve questions as to the sufficiency of the indictment and alleged errors at trial, none of which could well be deemed worthy of review by this Court. However, the Solicitor General in his response commendably notified the Court that pursuant to a general review of the use of "electronic eavesdropping or wiretapping," he discovered that a microphone had been installed in a commercial establishment owned by an acquaintance of petitioner O'Brien. A conversation in which O'Brien participated, occurring after the indictment and concerning his forthcoming trial, was overheard. The Solicitor General characterizes the episode as follows: "That conversation, although overheard by the monitoring agents and summarized in their logs, was not mentioned in any F. B. I. report nor were its contents communicated to attorneys for the Department of Justice, including those who prosecuted this case."

The Solicitor General further revealed a later conversation which he characterizes as follows: "It also appears from the logs of this surveillance . . . that petitioner O'Brien was on the premises and was overheard in January 1964, when he placed a telephone call and requested one of his attorneys to file an application relating to the territorial conditions of his release on bail. This conversation, like the one in May 1963, was noted in the logs of the monitoring agents but was not communicated in any manner outside the F. B. I." (Footnote omitted.)

On the basis of these representations the Solicitor General indicated that he would "not oppose" a remand of the case for an adversary hearing as to the effect of this activity on the validity of petitioners' convictions. The Court, however, without a word of explanation, vacates the convictions and remands the entire case for a new trial. I must respectfully but emphatically dissent.

As I stated in dissenting from a similar disposition in Black v. United States, 385 U.S. 26, 31: "I agree, of course, that petitioner is entitled to a full-scale development of the facts, but I can see no valid reason why this unimpeached conviction should be vacated at this stage. . . . [A] new trial is not an appropriate vehicle for sorting out the eavesdropping issue because until it is determined that such occurrence vitiated the original conviction no basis for a retrial exists. The Court's action puts the cart before the horse."

In Black the Court's disposition might conceivably be accounted for by the fact that the Government admitted that the contents of the recorded conversation had been incorporated in memoranda used by the prosecuting attorneys. In the present case, however, I can think of no justification for going beyond the position of the Solicitor General and forcing the Government to go through the effort and expense of an entirely new trial on the basis of this peripheral, totally insignificant, and uncommunicated eavesdropping. As in Black, I consider the Court's action quixotically precipitate.

In Schipani v. United States, 385 U.S. 372, the Court properly vacated the conviction because the Solicitor General conceded that evidence used at trial was tainted.

I would deny this petition for certiorari, but, given the Solicitor General's acknowledgement that electronic eavesdropping or wiretapping did in fact take place, I would remand the case to the District Court for a full hearing as to the circumstances and effects of these activities.


Summaries of

O'Brien v. United States

U.S.
Mar 20, 1967
386 U.S. 345 (1967)

granting certiorari and vacating conviction where, in response to petition for certiorari, Solicitor General informed Court that electronic surveillance of attorney-client conversations had taken place

Summary of this case from Matter of Grand Jury Proceedings of Aug., 1984

In O'Brien the Government stated that the only intercepted lawyer-client conversation concerned the terms of the defendant's bail, and that neither this conversation nor any other conversation was disclosed to the prosecuting attorneys. Brief for United States in O'Brien v. United States, supra, at 11.

Summary of this case from Weatherford v. Bursey

In O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158 the Court, citing Black, again vacated a conviction in the face of evidence that the government used electronic surveillance to eavesdrop on the conversations between a criminal defendant and his attorney.

Summary of this case from Sinclair v. Schriber

In O'Brien it was admitted by the Government that it had intercepted attorney-client communications and the Solicitor General did not oppose a remand for an adversary hearing to determine the effect of the activity on the validity of the convictions.

Summary of this case from United States v. Costanzo

In O'Brien, a defendant's conversation concerning his forthcoming trial was monitored, but the conversation was not mentioned in any FBI report, nor were its contents communicated to attorneys for the Department of Justice, including those who prosecuted the case.

Summary of this case from Bursey v. Weatherford

In O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967), relying on its decision in Black, the court reversed and remanded a conviction where it was informed by the Solicitor General that a conversation in which O'Brien participated, occurring after the indictment and concerning his forthcoming trial, was overheard by monitoring agents and summarized in their logs.

Summary of this case from United States v. Rispo

In O'Brien, the overheard conversations were neither included in F.B.I. reports nor related to the Department of Justice.

Summary of this case from United States v. Rispo

explaining that United States has an affirmative obligation to bring to the court's attention any overhearing of attorney-client communications, whether or not the defendant demands such

Summary of this case from United States v. Black

involving use of electronic surveillance installed in a commercial establishment to monitor conversation of suspect

Summary of this case from Joao Control & Monitoring Sys., LLC v. Telular Corp.

In O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967) and Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), there were electronic surveillances, discovered after conviction, of conversations between defendants and their attorneys during trial preparation.

Summary of this case from United States v. Natale

In O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, a new trial was ordered but it was apparent that the overhearing of a conversation of the defendant concerning his forthcoming trial by means of an electronic eavesdropping device was not known to the court or the parties at the time of the trial.

Summary of this case from McClelland v. State
Case details for

O'Brien v. United States

Case Details

Full title:O'BRIEN ET AL. v . UNITED STATES

Court:U.S.

Date published: Mar 20, 1967

Citations

386 U.S. 345 (1967)
87 S. Ct. 1158

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