Anthony Joseph Russo, Jr. v. William Matthew Byrne, JR., 409 U.S. 1219 (1972)

409 U.S.
1219
93 S.Ct. 21
34 L.Ed.2d 30
Anthony Joseph RUSSO, Jr., and Daniel Ellsberg, Applicants,

v.
William Matthew BYRNE, Jr., Judge of the United States
District Court for the Central District of California.
No. A-150.
July 29, 1972.
Mr. Justice DOUGLAS, Circuit Justice.
The question raised by this application for stay presents a profoundly important
constitutional question not squarely decided by the Supreme Court but ruled
upon by the District Court and by the Court of Appeals in a way that is
seemingly out of harmony with the import of our decisions.
The electronic surveillance used by the Government was represented to me on

oral argument as being in the 'foreign' field. No warrant, as required by the
Fourth Amendment and by our decisions, was obtained, only the authorization
by the Attorney General. Such authorization was held insufficient in our recent
decision in United States v. United States District Court for Eastern District of
Michigan, 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). It is argued
that that case involved 'domestic' surveillance, but the Fourth Amendment and
our prior decisions, to date at least, draw no distinction between 'foreign' and
'domestic' surveillance. Whether such a distinction will eventually be made is
for the Court, not for me, to make. Moreover, in light of the casual way in
which 'foreign' as distinguished from 'domestic' surveillance was used on oral
argument it may be that we are dealing only with a question of semantics.
Defendants' telephonic communications, it seems, were not tapped, nor were
those of their attorney or consultants. But a conversation or several
conversations of counsel for defendants were intercepted.
The District Court in an in camera proceeding ruled that those conversations

were not relevant to any issues in the present trial. The Court of Appeals, as I
read its opinion, ruled that the defendantsi.e., applicants who make this
applicationhave no 'standing' to raise the question. If, however, the

interceptions were 'relevant' to the trial, it would seem they would have
'standing.'
4
Therefore it would seem to follow from the reasoning of the Court of Appeals
that whether or not there was 'standing' would turn on the merits. The case,
viewed in that posture, would seem to require an adversary hearing on the issue
of relevancy. We held, in Alderman v. United States, 394 U.S. 165, 182, 89
S.Ct. 961, 971, 22 L.Ed.2d 176 (1969), that the issue of relevancy should not be
resolved in camera, but in an adversary proceeding. Alderman would be greatly
undercut if the issue of relevancy could be resolved in camera, and if the trial
court ruled against the defendants on the merits and then determined they had
no 'standing' to complain.
I seriously doubt if the ruling of the Court of Appeals on 'standing' accurately

states the law. In modern times the 'standing' of persons or parties to raise
issues has been greatly liberalized. Our Court has not squarely ruled on the
precise issue here involved. But it did rule in Flast v. Cohen, 392 U.S. 83, 103,
88 S.Ct. 1942, 1954, 20 L.Ed.2d 947 (1968), that one who complains of a
violation of a First Amendment right has 'standing.' On oral argument Flast was
distinguished from the present case on the ground that under the Fourth
Amendment only those whose premises have been invaded or whose
conversations have been intercepted have standing to complain of
unconstitutional searches and seizures. That contention, however, does not
dispose of this case.
The constitutional right earnestly pressed here is the right to counsel guaranteed
by the Sixth Amendment. That guarantee obviously involves the right to keep
the confidences of the client from the ear of the Government which these days
seeks to learn more and more of the affairs of men. The constitutional right of
the client, of course, extends only to his case, not to the other concerns of his
attorney. But unless he can be granted 'standing' to determine whether his
confidences have been disclosed to the powerful electronic ear of the
Government, the constitutional fences protective of privacy are broken down.
My authority is to grant or deny a stay, not to determine whether the Court of

Appeals is right or wrong on the merits. If the application presents frivolous
questions it should be denied. If it tenders a ruling out of harmony with our
prior decisions, or questions of transcending public importance, or issues which
would likely induce this Court to grant certiorari, the stay should be granted.
I am exceedingly reluctant to grant a stay where the case in a federal court is
I am exceedingly reluctant to grant a stay where the case in a federal court is

barely under way. But conscientious regard for basic constitutional rights
guaranteed by the Fourth and Sixth Amendments makes it my duty to do so. I,
therefore, order that the trial be stayed for 30 days pending application to this
Court for a writ of certiorari and thereafter stayed pending the determination of
the petition.
If the law under which we live and which controls every federal trial in the land
is the Constitution and the Bill of Rights, the prosecution, as well as the
accused, must submit to that law.

Anthony Joseph Russo, Jr. v. William Matthew Byrne, JR., 409 U.S. 1219 (1972)

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Anthony Joseph Russo, Jr. v. William Matthew Byrne, JR., 409 U.S. 1219 (1972)

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409 U.S.

Anthony Joseph RUSSO, Jr., and Daniel Ellsberg, Applicants,

Mr. Justice DOUGLAS, Circuit Justice.

The electronic surveillance used by the Government was represented to me on

The District Court in an in camera proceeding ruled that those conversations

applicationhave no 'standing' to raise the question. If, however, the

I seriously doubt if the ruling of the Court of Appeals on 'standing' accurately

My authority is to grant or deny a stay, not to determine whether the Court of

I am exceedingly reluctant to grant a stay where the case in a federal court is

I am exceedingly reluctant to grant a stay where the case in a federal court is

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