386 U.S. 345 (1967), 823, O'Brien v. United States

Docket Nº:No. 823
Citation:386 U.S. 345, 87 S.Ct. 1158, 18 L.Ed.2d 94
Party Name:O'Brien v. United States
Case Date:March 20, 1967
Court:United States Supreme Court
 
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Page 345

386 U.S. 345 (1967)

87 S.Ct. 1158, 18 L.Ed.2d 94

O'Brien

v.

United States

No. 823

United States Supreme Court

March 20, 1967

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

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

Per curiam opinion.

PER CURIAM.

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.

HARLAN, J., dissenting

MR. JUSTICE HARLAN, whom MR. JUSTICE STEWART joins, dissenting.

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

Page 346

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...

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