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37. Attorney Overhearings

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:

  1. The specific facts which reasonably lead the affiant to believe that named counsel for the named (defendant) has been subjected to electronic surveillance;
  2. The dates of such suspected surveillance;
  3. The outside dates of representation of defendant by the lawyer during the period of surveillance;
  4. 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
  5. 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.

Updated May 19, 2015