KOLOD ET AL. v. UNITED STATES.
ON PETITION FOR REHEARING.
No. 133. Certiorari denied October 9, 1967. Rehearing and certiorari granted and case decided January 29, 1968.
After the petition for writ of certiorari in this case was filed, petitioners' counsel, as alleged in their petition for rehearing, learned of a government agency's electronic monitoring of a petitioner's conversations at his place of business. The Solicitor General sought to justify nondisclosure by the Government on the basis of the Justice Department's determination that the eavesdropped information was not arguably relevant to this prosecution. Held: This Court cannot accept the Department's ex parte determination of relevancy in lieu of such a determination in an adversary District Court proceeding, to be confined to the content of any electronically eavesdropped conversations at petitioner's place of business and the pertinence thereof to petitioners' subsequent convictions.
Rehearing and certiorari granted; 371 F.2d 983, vacated and remanded.
Edward Bennett Williams, Harold Ungar and W. H. Erickson for petitioners.
Solicitor General Griswold, former Solicitor General Marshall, Assistant Attorney General Vinson, Beatrice Rosenberg and Sidney M. Glazer for the United States.
The petition for rehearing is granted and the order denying petitioners' petition for the writ of certiorari, 389 U.S. 834 , is set aside. The petition for rehearing alleges that petitioners' counsel was informed after the petition for the writ of certiorari was filed that petitioner Alderisio's conversations were monitored through electronic surveillance conducted by a government agency at Alderisio's place of business in Chicago. The Court invited the Solicitor General to respond to the petition [390 U.S. 136, 137] for rehearing. 389 U.S. 966 . The Solicitor General responded that the petition should be denied because the case did not come within ". . . the policy of the Department of Justice to make disclosure to the courts if it finds (1) that a defendant was present or participated in a conversation overheard by unlawful electronic surveillance, and (2) that the government has thereby obtained any information which is arguably relevant to the litigation involved." The Solicitor General stated that "As a result of his inquiries and examination, he is satisfied that there is nothing that is arguably relevant to the present case," that is, "no overheard conversation in which any of the petitioners participated is arguably relevant to this prosecution."
We read the response as admitting that Alderisio's conversations were overheard by unlawful electronic eavesdropping but as justifying nondisclosure on the basis of the Department's determination that the information obtained was not arguably relevant to this prosecution. We cannot accept the Department's ex parte determination of relevancy in lieu of such determination in an adversary proceeding in the District Court. Accordingly we grant the petition for certiorari as to each of the petitioners Alderisio and Alderman, * vacate the judgment of the Court of Appeals, and remand the case to the District Court for a hearing, findings, and conclusions on the nature and relevance to these convictions of any conversations that may be shown to have been overheard through unlawful electronic surveillance of petitioner Alderisio's place of business in Chicago. In such proceedings, the District Court will confine the evidence presented by both sides to that which is material to questions of the content of any electronically eavesdropped conversations at petitioner Alderisio's place [390 U.S. 136, 138] of business in Chicago, and of the relevance of any such conversations to petitioners' subsequent convictions. The District Court will make such findings of fact on these questions as may be appropriate in light of the further evidence and of the entire existing record. If the District Court decides, on the basis of such findings, that the convictions of the petitioners were not tainted by the use of evidence improperly obtained, it will enter new final judgments of convictions based on the existing record as supplemented by its further findings, thereby preserving to all affected parties the right to seek further appropriate appellate review. If, on the other hand, the District Court concludes after such further proceedings that the conviction of a petitioner was tainted, it would then become its duty to accord such petitioner a new trial. Hoffa v. United States, 387 U.S. 231, 233 -234.
The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.