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37. Attorney Overhearings | USAM | Department of Justice

U.S. Attorneys Resources U.S. Attorneys' Manual Criminal Resource Manual CRM 1-499 CRM
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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).
https://www.justice.gov/usam/criminal-resource-manual-37-atty-overhearings

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37. Attorney Overhearings | USAM | Department of Justice

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.
36. Defendant Overhearings

https://www.justice.gov/usam/criminal-resource-manual-37-atty-overhearings

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38. "Juvenile" Defined

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