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Black v. United States

U.S.
Nov 7, 1966
385 U.S. 26 (1966)

Summary

vacating conviction when, after certiorari denied, the Solicitor General voluntarily informed the Court that review disclosed 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 REHEARING.

No. 1029, October Term, 1965.

Certiorari denied May 2, 1966. Rehearing and certiorari granted and case decided November 7, 1966.

After denial of certiorari in this case, the Solicitor General voluntarily advised that, in connection with another matter, monitoring petitioner's room disclosed conversations between petitioner and his attorney at the time this case was being presented to the Grand Jury. Notes and reports made therefrom were forwarded later to Tax Division attorneys for use in preparation for trial in the case. The Solicitor General also advised that these attorneys did not regard the material as relevant and did not know it included attorney-client conversations and suggested that the judgment be vacated and remanded to the District Court for a hearing at which the material would be produced and the court could determine whether the conviction should stand. In view of the report of the Solicitor General and in order to make certain that petitioner be accorded a trial free from any inadmissible evidence, held: The judgment should be vacated and the case remanded for a new trial.

Rehearing and certiorari granted; 122 U.S.App.D.C. 347, 353 F.2d 885, vacated and remanded.

Hans A. Nathan, Warren E. Magee and Bert B. Rand for petitioner.

Solicitor General Marshall for the United States.


In Davis v. United States, post, p. 927, we today denied the petition for certiorari. The sole question raised there (but not passed upon by the Court of Appeals because not necessary to its disposition) involved petitioners' claim that conferences between petitioners and their counsel were surreptitiously overheard and intercepted by law enforcement officials through concealed monitorial devices built into the jail where petitioners were being held for federal authorities. The Solicitor General did not deny the existence of the devices but said that there were no recordings of the conversations in question. He pointed out that since the case has been remanded by the Court of Appeals for a new trial on other grounds, a full exploration of this question could be made on retrial. In the light of these representations we denied the petition for certiorari so that the question might be fully explored at the new trial, as suggested by the Solicitor General.

In the instant case, Black v. United States, the petition for rehearing now raises a similar question and while Davis v. United States, supra, is not controlling, its relation is obvious. In Black the Solicitor General advised the Court voluntarily on May 24, 1966, after the petition for certiorari had been denied, 384 U.S. 927, but before an application for rehearing had been filed, that agents of the Federal Bureau of Investigation, in a matter unrelated to this case, on February 7, 1963, installed a listening device in petitioner's hotel suite in Washington, D.C. The device monitored and taped conversations held in the hotel suite during the period the offense was being investigated and beginning some two months before and continuing until about one month after the evidence in this case was presented to the Grand Jury. During that period, "the monitoring agents," the Solicitor General advised, "overheard, among other conversations, exchanges between petitioner and the attorney who was then representing him [Black]" in this case. In a supplemental memorandum filed July 13, 1966, the Solicitor General, in response to an inquiry by the Court, stated that the recordings of such interceptions had been erased from the tapes but that notes summarizing and sometimes quoting the conversations intercepted were available, and that reports and memoranda concerning the same had been made. "Neither the reports nor the memoranda," he reported, "were seen by attorneys of the Tax Division responsible for the prosecution of" this case until January 1964, when in preparing for trial they were included in material transmitted to them; the reports and memoranda of the intercepted conversations were examined by the Tax Division attorneys and retained by them until April 15, 1964, when petitioner's trial began; and the attorneys never realized until April 21, 1966, that any conversations between Black and his attorney had been overheard and included in the transcriptions.

The Solicitor General advised further that the "Tax Division attorneys found nothing in the F. B. I. reports or memoranda which they considered relevant to the tax evasion case." He suggests that the judgment be vacated and remanded to the District Court in which the "relevant materials would be produced and the court would determine, upon an adversary hearing, whether petitioner's conviction should stand." We have sometimes used this technique in federal criminal cases, United States v. Shotwell Mfg. Co., 355 U.S. 233. However, its use has never been automatic. Indeed, in Remmer v. United States, 347 U.S. 227, we found it necessary, despite the hearing in the District Court, to subsequently order a new trial on the merits, 350 U.S. 377. There are other complicating factors here that were not present in Remmer. There the judge had been informed of the alleged jury tampering, but here neither the judge, the petitioner nor his counsel knew of the action of the federal agents. Moreover, the Solicitor General advises that the Tax Division attorneys did not know at the time of the trial that conversations between Black and his attorney were included in the transcriptions. In view of these facts it appears that justice requires that a new trial be held so as to afford the petitioner an opportunity to protect himself from the use of evidence that might be otherwise inadmissible.

This Court has never been disposed to vacate convictions without adequate justification, but, under the circumstances presented by the Solicitor General in this case we believe that a new trial must be held. This will give the parties an opportunity to present the relevant evidence and permit the trial judge to decide the questions involved. It will also permit the removal of any doubt as to Black's receiving a fair trial with full consideration being given to the new evidence reported to us by the Solicitor General.

The petition for rehearing is therefore granted, the order denying certiorari vacated, certiorari granted, the judgment of the Court of Appeals vacated and the cause remanded to the District Court for a new trial.

MR. JUSTICE WHITE and MR. JUSTICE FORTAS took no part in the consideration or decision of this case.


The denial of certiorari in No. 245, Davis v. United States — where the Court of Appeals for the Fifth Circuit has already ordered a new trial on grounds wholly unrelated to alleged eavesdropping and at which trial petitioners will have a full opportunity to explore their contentions that the Government interfered with their constitutionally protected right to counsel — bears no solid relation to, still less furnishes justification for, what the Court has done in the present case. A brief statement of the circumstances of the Black disposition will reveal that in summarily vacating this final conviction and ordering a completely new trial the Court has acted prematurely.

In 1964, petitioner Black was convicted in the District Court of federal income tax violations. His conviction was affirmed by the Court of Appeals for the District of Columbia Circuit on November 10, 1965. 122 U.S.App.D.C. 347, 353 F.2d 885. Certiorari was denied by this Court on May 2, 1966. 384 U.S. 927. Before Black's petition for rehearing was filed here, the Solicitor General filed a memorandum bringing to the Court's attention the fact that in the course of an unrelated criminal investigation Black's hotel suite had been "bugged" by the Federal Bureau of Investigation and conversations between Black and his attorney electronically recorded. The Solicitor General further stated that in consequence of an investigation, instituted by him following his discovery of this occurrence, he was able to represent to the Court that none of the information so procured had been utilized in Black's aforesaid prosecution. In a further memorandum, filed in compliance with a request from this Court, the Solicitor General has represented that it was not until late August 1965 that the Criminal Division of the Department of Justice learned that a listening device had been installed in Black's hotel suite and not until April 21, 1966, that attorneys in the Tax Division, responsible for the prosecution, learned that any conversations between Black and his counsel had been overheard.

The Solicitor General recognizes that Black is entitled to a full exploration of the matter, and to that end suggests that the case be remanded to the District Court for a hearing and findings on the episode in question as it may bear on the validity of Black's conviction. Black responds that this course is inadequate and contends that this Court should, without more, forthwith order dismissal of the indictment in this income tax prosecution.

Without anything more before it than the representations made by both sides, the Court today orders a totally new trial in spite of the fact that the disclosures commendably made by the Solicitor General reveal no use of "bugged" material in Black's prosecution, and no knowledge by prosecuting attorneys that material may have been improperly obtained. 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. In Davis, supra, exploration of the alleged eavesdropping episode is appropriate upon the retrial of the case since the original conviction has already fallen on other grounds. In the Black case, however, 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. The orderly procedure is to remand the case to the District Court for a hearing and findings on the issues in question. See United States v. Shotwell Mfg. Co., 355 U.S. 233. See also Remmer v. United States, 347 U.S. 227, 350 U.S. 377. Unless and until the facts on this issue have been resolved and their legal effect assessed favorably to petitioner, this conviction should remain undisturbed.

The only basis I can think of for justifying this decision is that any governmental activity of the kind here in question automatically vitiates, so as at least to require a new trial, any conviction occurring during the span of such activity. But I cannot believe that the Court, without even briefing or argument, intends to make any such sweeping innovation in the federal criminal law by today's peremptory disposition of this case.


Summaries of

Black v. United States

U.S.
Nov 7, 1966
385 U.S. 26 (1966)

vacating conviction when, after certiorari denied, the Solicitor General voluntarily informed the Court that review disclosed that electronic surveillance of attorney-client conversations had taken place

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

In Black v. United States, 385 U.S. 26 (1966), and O'Brien v. United States, 386 U.S. 345 (1967), law enforcement officers improperly overheard pretrial conversations between a defendant and his lawyer.

Summary of this case from United States v. Morrison

In Black the Government reported that information uncovered through the monitoring had been relayed to the prosecutors, but maintained that none of the evidence against the defendant had been derived from the surveillance, and that nothing was learned "which had any effect upon the presentation of the government's case or the fairness of petitioner's trial."

Summary of this case from Weatherford v. Bursey

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.

Summary of this case from O'Brien v. United States

remanding the case for a new trial after government agents monitored and listened to confidential conversations between defendant and his attorney

Summary of this case from Bittaker v. Woodford

In Black, a defendant was convicted of federal income tax violations, and his conviction was affirmed on appeal. On appeal to the Supreme Court, the United States Solicitor General voluntarily divulged that the FBI had "bugged" defendant Black's hotel suit in the course of an unrelated criminal investigation and had electronically recorded conversations between Black and his attorney.

Summary of this case from Sinclair v. Schriber

In Black, the Supreme Court reversed the petitioner's conviction because the FBI had recorded conversations between the petitioner and his attorney relating to the charges pending against him and had transmitted information gained from the recording to the prosecuting attorneys.

Summary of this case from United States v. Dodge

In Black, the court held that a tax evasion conviction should be reversed and a new trial granted to afford petitioner the opportunity to protect himself from use of evidence that might be inadmissible when, pending application for rehearing of denial of certiorari, the Solicitor General informed the court that federal agents in connection with other matters had monitored conversations between petitioner and his counsel in a hotel suite and that the contents of the recorded conversation had been incorporated in memoranda used by the prosecuting attorneys.

Summary of this case from United States v. Rispo

In Black, the prosecuting attorneys unwittingly referred to notes which contained information regarding monitored conversations.

Summary of this case from United States v. Rispo

In Black v. United States, 385 U.S. 26 [87 S.Ct. 190, 17 L.Ed.2d 26] (1966), and O'Brien v. United States, 386 U.S. 345 [87 S.Ct. 1158, 18 L.Ed.2d 94] (1967), law enforcement officers improperly overheard pretrial conversations between a defendant and his lawyer.

Summary of this case from In re Extradition of Singh

In Coplon, government agents deliberately intercepted telephone consultations between defendant and her lawyer before and during the trial.

Summary of this case from United States v. Brown

monitoring of attorney-client conversation

Summary of this case from Shapiro v. Comm'r of Internal Revenue

monitoring of attorney-client conversation

Summary of this case from Shapiro v. Commissioner of Internal Revenue

In Black v. United States, 385 U.S. 26, 17 L.Ed.2d 26, 87 S.Ct. 190, the court vacated the conviction for tax evasion and ordered a new trial where after the trial it was learned that Federal agents had monitored conversations between the accused and his attorney while preparing for trial.

Summary of this case from People v. Knippenberg

In Black v. United States, 385 U.S. 26, 87 S.Ct. 190, 17 L.Ed.2d 26 (1966), and O'Brien v. United States, 386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94 (1967), law enforcement officers improperly overheard pretrial conversations between a defendant and his lawyer.

Summary of this case from State v. Walker

In Black v. United States, 385 U.S. 26 [17 L.Ed.2d 26, 87 S.Ct. 190], after certiorari had been denied, but before an application for rehearing had been filed, the Solicitor General advised the Supreme Court that the Federal Bureau of Investigation had bugged Black's hotel suite while the offense for which he was eventually convicted was under investigation and that, among others, the government agents had overheard conversations between Black and his attorney.

Summary of this case from People v. Holzer

In Black v. United States, 385 U.S. 26, 87 S.Ct. 190, the Solicitor General informed the Supreme Court voluntarily, after a petition for certiorari had been denied but before an application for rehearing had been filed, that the F.B.I. in a matter unrelated to the case, had installed a listening device in Black's hotel room and overheard conversations between him and the attorney representing him in the case.

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

Black v. United States

Case Details

Full title:BLACK v . UNITED STATES

Court:U.S.

Date published: Nov 7, 1966

Citations

385 U.S. 26 (1966)
87 S. Ct. 190

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