409 U.S. 1013 (1972), 72-307, Russo v. Byrne

Docket Nº:No. 72-307.
Citation:409 U.S. 1013, 93 S.Ct. 433, 34 L.Ed.2d 307
Party Name:Anthony Joseph RUSSO, Jr., and Daniel Ellsberg v. William Matthew BYRNE, Jr., etc.
Case Date:November 13, 1972
Court:United States Supreme Court

Page 1013

409 U.S. 1013 (1972)

93 S.Ct. 433, 34 L.Ed.2d 307

Anthony Joseph RUSSO, Jr., and Daniel Ellsberg

v.

William Matthew BYRNE, Jr., etc.

No. 72-307.

United States Supreme Court.

November 13, 1972

OPINION

On petition for writ of certiorari to the United States Court of Appeals for the Ninth Circuit.

The petition for a writ of certiorari is denied.

Mr. Justice DOUGLAS, dissenting.

I regret that the Court does not take this occasion to lay down some further ground rules for the conduct of criminal cases involving electronic surveillance, in the sensitive area, which involves both the Fourth and the Sixth Amendments.

[93 S.Ct. 434] In Alderman v. United States, 394 U.S. 165, 89 S.Ct. 961, 22 L.Ed.2d 176, we laid down rules governing the district courts where there had been electronic surveillance of the defendant in a criminal case or where in other surveillance his words had been recorded. Alderman and its descendants made possible the conduct of criminal trials with fairness to all sides and with no disturbance to orderly proceedings.

The present case is one of several that have come across my desk this year involving not the surveillance of a

Page 1014

defendant in a criminal case but the surveillance of his lawyer.

It is time, I think, that we hold that the confidences of the lawyer-client relationship remain inviolate. It is also time that we set forth the prescribed procedures in an Alderman type of opinion.

The problems where the lawyer is involved seem to me to be as critical as those where the defendant's privacy under the Fourth Amendment is violated. 1 The ruling

Page 1015

which I made this last summer when I granted the stay in this case was based on the premise that the teaching of Alderman would fully apply to a case where the Sixth Amendment rights of a defendant were imperilled.

We held in United States v. United States District Court, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752, that electronic surveillance of internal security measures was not permissible on the basis of an order of the Attorney General, but only on judicial search warrants. We reserved decision 'with respect to activities of foreign powers or their agents.' Id., at 322, 92 S.Ct. 2125. When the argument was held last summer [93 S.Ct. 435] on the stay order, the prosecution in oral presentation distinguished that case on the ground that it involved 'domestic' surveillance while the present one involved 'foreign' surveillance. The prosecution seemed reluctant to enlarge on that distinction, which led me to note in the opinion I filed granting the stay that we may be dealing only with a matter of semantics. The prosecution never submitted to mein camera the logs in question. I have now seen them and it appears that the electronic surveillance was of a telephone of a foreign national and that the intercepted conversations in this case had nothing to do 'with respect to activities of foreign persons or their agents,' the question we reserved in the previous case, 407 U.S., at 322, 92 S.Ct. 2125. As I understand it, the conversation was an inquiry by one of the counsel concerning wholly personal, social and commercial matters. It is not conceivable to me that this conversation is in the 'foreign' field in the sense the word is used in the statutes involved in the United States District Court case. No activity of any foreign 'agent' as even suggested. We should therefore take the case to resolve what immunity the Executive Branch has in setting up schemes of pervasive surveillance of foreign nationals that is unrelated to espionage.

Page 1016

It is, however, said that the conversation is utterly irrelevant to the issues in...

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62 practice notes
  • 461 F.Supp. 492 (W.D.Va. 1978), Civ. A. 77-0111, Durham v. Blankenship
    • United States
    • Federal Cases United States District Courts 4th Circuit
    • 3 Noviembre 1978
    ...one attorney. Holloway, supra, 435 U.S. at 482, 98 S.Ct. 1173. In Miller v. Cox, 457 F.2d 700 (4th Cir. 1972), Cert. den., 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299 (1972), the court sanctioned a lawyer's simultaneous representation of criminal codefendants, and in United States v. Burkle......
  • 886 F.2d 838 (7th Cir. 1989), 88-1686, United States v. Jackson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 25 Septiembre 1989
    ...failure to comply with court order not to shave prior to lineup); United States v. Nix, 465 F.2d 90, 95 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972), reh'g denied, Nix v. United States, 409 U.S. 1119, 93 S.Ct. 918, 34 L.Ed.2d 704 (1973) (comment on and jury i......
  • A desegregation tool that backfired: magnet schools and classroom segregation.
    • United States
    • Yale Law Journal Vol. 103 Nbr. 8, June - June 1994
    • 1 Junio 1994
    ...on the basis standardized ability and achievement test scores violated black students' Fourteenth Amendment right cert. denied, 409 U.S. 1013 (1972); Lemon v. Bossier Parish Sch. Bd., 444 F.2d 1400, 1401 (5th Cir. (without ruling on the validity of testing per se, prohibiting classroom assi......
  • 607 F.2d 1172 (5th Cir. 1979), 79-5192, United States v. Knight
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 7 Diciembre 1979
    ...and comment on the refusal to provide an exemplar is permissible. United States v. Nix, 465 F.2d 90, 93-94 (5th Cir.), Cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 AFFIRMED. Notes: [1] The Atlanta address belonged to neither of the legitimate companies. They were headquartered ......
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61 cases
  • 461 F.Supp. 492 (W.D.Va. 1978), Civ. A. 77-0111, Durham v. Blankenship
    • United States
    • Federal Cases United States District Courts 4th Circuit
    • 3 Noviembre 1978
    ...one attorney. Holloway, supra, 435 U.S. at 482, 98 S.Ct. 1173. In Miller v. Cox, 457 F.2d 700 (4th Cir. 1972), Cert. den., 409 U.S. 1007, 93 S.Ct. 433, 34 L.Ed.2d 299 (1972), the court sanctioned a lawyer's simultaneous representation of criminal codefendants, and in United States v. Burkle......
  • 886 F.2d 838 (7th Cir. 1989), 88-1686, United States v. Jackson
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Seventh Circuit
    • 25 Septiembre 1989
    ...failure to comply with court order not to shave prior to lineup); United States v. Nix, 465 F.2d 90, 95 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972), reh'g denied, Nix v. United States, 409 U.S. 1119, 93 S.Ct. 918, 34 L.Ed.2d 704 (1973) (comment on and jury i......
  • 607 F.2d 1172 (5th Cir. 1979), 79-5192, United States v. Knight
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Fifth Circuit
    • 7 Diciembre 1979
    ...and comment on the refusal to provide an exemplar is permissible. United States v. Nix, 465 F.2d 90, 93-94 (5th Cir.), Cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 AFFIRMED. Notes: [1] The Atlanta address belonged to neither of the legitimate companies. They were headquartered ......
  • 715 S.W.2d 847 (Tex.App. - Houston [14 Dist.] 1986), B14-84-104, Turner v. State
    • United States
    • Texas Court of Appeals of Texas
    • 28 Agosto 1986
    ...of a written contempt order, was approved. The State cites the case of United States v. Nix, 465 F.2d 90 (5th Cir.1972), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972), where the court held that the Prosecutor could comment on the defendant's refusal to provide a handwriti......
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1 books & journal articles
  • A desegregation tool that backfired: magnet schools and classroom segregation.
    • United States
    • Yale Law Journal Vol. 103 Nbr. 8, June - June 1994
    • 1 Junio 1994
    ...on the basis standardized ability and achievement test scores violated black students' Fourteenth Amendment right cert. denied, 409 U.S. 1013 (1972); Lemon v. Bossier Parish Sch. Bd., 444 F.2d 1400, 1401 (5th Cir. (without ruling on the validity of testing per se, prohibiting classroom assi......