UNITED STATES SUPREME COURT DECISIONS ON-LINE

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.

PER CURIAM.

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 clubjuris

Page 390 U. S. 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, 390 U. S. 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.

It is so ordered.

MR. JUSTICE BLACK dissents.

MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

* Petitioner Kolod died in August 1967, and the petition for certiorari as to him is dismissed.