42 43 44 F. 45 protected rights as work, travel, due process, and association. For example, the Third Circuit found that transmission of information on the Religious Society of Friends to non-law enforcement groups threatened injury to freedoms of speech and association, interfered with job opportunities, and burdened individual travel rights. Electronic Surveillance In United States v. U. S. District Court, the Supreme Court held that prior judicial approval is required for searches or electronic surveillance made in the interest 47 of national domestic security. Fourth Amendment protections become the more necessary when the targets of official 46 42 43 44 Socialist Workers Party v. Attorney General of the United Friends v. Tate, supra, at 1338. Berlin Democratic Club v. Rumsfeld, supra at 149 (dissemination of information allegedly prejudiced defendant in military trial). This rule is, in effect, a judicial examination of In Massiah v. United States the Supreme Court first gave close attention to the Sixth Amendment implications of informant testimony. The defendant had been indicted and was free on bail. A government informant, equipped with a transmitter, engaged the defendant in a conversation designed to elicit incriminating statements. The Court held in Massiah that incriminating statements deliberately elicited by surreptitious interrogation of an indicted defendant by a government agent in the absence of counsel are obtained in violation of the defendant's Sixth Amendment rights and may not be used against him at trial on the pending charge. 48 377 U.S. 201 (1964). The Court emphasized that it may be entirely proper, however, to continue a covert investigation of suspected criminal activities after a defendant has been indicted. 2. Hoffa v. United States 49 Two years later, in Hoffa v. United States, the Court again considered the Sixth Amendment problem. While Hoffa was on trial for a Taft-dartley offense a government informant was often in the company of the defendant, his attorneys, and associates. He reported regularly to federal agents; his reports and testimony were used to convict Hoffa at a subsequent trial for attempting to influence the jury at the first trial. Three important Sixth Amendment principles were set out by the Supreme Court when Hoffa appealed on the jury-tampering conviction. Assuming that the informant had access to privileged attorney-client conversations and trial strategy relating to the first trial, such an intrusion may have violated Hoffa's Sixth Amendment right to counsel regarding the first 49 385 U.S. 293 (1966). 19 trial. If the informant's reports or testimony had resulted in conviction in that trial, a new trial may have been required. The informant's activities did not, however, violate the defendant's rights with relation to the second charge, the jury-tampering offense. The incriminating statements admitted at the second trial related to new, ongoing criminal activity, and they were not tainted by any intrusion into legitimate attorney-client conversations about the first trial. The statements relating to jury tampering could, therefore, be admitted at the second trial. When an investigation has not yet produced a charge or indictment the Massiah rule is not applicable. The police have no constitutional duty to stop an investigation and arrest or charge a suspect as soon as they have the minimum evidence required to do so. Hoffa had no constitutional right to be arrested and advised of his right to counsel as soon as the government knew of his jury-tampering efforts. Indictment of an accused for one offense does not give Sixth Amendment protection to incriminating statements made regarding another crime. This rule derives from the decision in Hoffa v. United States, and it has been explicitly adopted in most of the federal circuits. 2. The "government agent" distinction Statements made to a person who is not a government informant (agent) at that time are not protected from disclosure at trial even if the person subsequently becomes 50 an informant. 50 Paroutian v. United States, 370 F. 2d 631, 632 (2d 21 |