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November 21, 1952


The opinion of the court was delivered by: KIRKLAND

In the present proceedings the defendant was indicted by a District of Columbia Grand Jury on September 8, 1952, and charged with perjury under Title 22, Section 2501 of the District of Columbia Code. Specifically, the defendant is alleged to have testified falsely as to his communistic affiliations, while appearing before the House of Representatives Committee on Un-American Activities, investigating, among other things, the leakage of certain atomic secrets.

Defendant has filed the following motions: (1) Dismissal of the indictment on various grounds; (2) suppression of certain evidence allegedly illegally obtained; (3) a bill of particulars as to matters surrounding the indictment; (4) production and inspection of various documents and transcripts related to the allegations in the indictment; (5) inspection of the Grand Jury minutes; (6) a hearing to ascertain bias on the part of the Grand Jurors.

 The Government has also moved to quash subpoenas served on the Attorney General of the United States and the Director of the Federal Bureau of Investigation. All motions have been disposed of save two herein discussed by the court:

 Counsel for the defendant has devoted the greater part of his oral argument to the motion seeking the suppression of evidence allegedly obtained directly or indirectly through the use of illegal methods. The basis for the motion, sifted from the affidavits and argument, is that the evidence was illegally obtained by the interception of telephonic communications, the interception of mail, and the recording of conversations in private homes.

 Defendant, by way of affidavits, claims Government agents intercepted a telephone conversation occurring on a particular evening in March of 1943 between 'Joe' and a Mrs. Nelson, and that 'Joe' later was identified by the House Committee as 'Scientist X' or the defendant herein, Joseph Weinberg. Dr. Weinberg contends this interception was what inspired the F.B.I. agents to commence a surveillance of his activities. The affiant also states he has reason to believe Government agents intercepted mail 'allegedly' sent by defendant.

 One of counsel for the defendant has filed an affidavit reciting a chance colloquy with a Washington taxicab driver, who had been a member of a local District of Columbia Grand Jury in 1950, which had considered evidence against the defendant, but had not returned an indictment. A conversation was alluded to between the taxicab driver and the head of a division of the Department of Justice as to the type of evidence available for possible prosecution. However, testimony was taken in open court and upon consideration of the testimony and the affidavits filed herein, this court found, as a matter of fact, that there was no breach of the grand jury oath, that the incident was remote and had no bearing on the matter at hand, and that there was no showing of illegal evidence being presented to the grand jury on which the taxicab driver was sitting as a juror.

 There is filed in the record documents indicating the defendant has denied knowing Steve Nelson, a notorious communist, or his wife any time prior to 1949; nor does he admit being a party to any telephone conversation made to the Nelson home at any time, much less the month of March in the year 1943. In his memorandum defendant's counsel refers to the communication as 'alleged' phone call. It is also to be noted that the indictment filed herein was returned by a Grand Jury impaneled on March 3, 1952, and sworn in on March 4, 1952.

 The law involving wiretapping has been a controversial theme among the courts in recent years. However, the legal sediments are beginning to settle and from the several Supreme Court decisions following The Nardone case (Nardone v. United States) 308 U.S. 338, 60 S. Ct. 266, 268, 84 L. Ed. 307, there is emerging decided and clearer law on the subject.

 In the Nardone decision the procedural approach to attack the misuse of illegal wiretapping was outlined as follows:

 'The burden is, of course, on the accused in the first instance to prove to the trial court's satisfaction that wiretapping was unlawfully employed. Once that is established- as was plainly done here- the trial judge must give opportunity, however closely confined, to the accused to prove that a substantial portion of the case against him was a fruit of the poisonous tree. This leaves ample opportunity to the Government to convince the trial court that its proof has an independent origin.'

 And the very following paragraph added these comments:

 'Dispatch in the trial of criminal causes is essential in bringing crime to book. * * * Therefore claims that taint attaches to any portion of the Government's case must satisfy the trial court with their solidity and not be merely a means of eliciting what is in the Government's possession before its submission to the jury.'

 The defendant's affidavits do not allege that there is, in fact, any evidence whatever that will be offered by the Government based on intercepted telephone messages. There is an entire lack of definitiveness as to any particular interception. Cf. United States v. Frankfeld, D.C. 1951, 100 F.Supp. 934. The defendant's conclusions have mere suspicions and innuendos as their premises. This is not the 'solidity' and affirmative proof necessary and therefore does not merit a hearing under the Nardone Rule. Courts need a reasonable assurance that the evidence challenged is tainted or is 'a fruit of the poisonous tree'; mere conjecture will not suffice. United States v. Fujimoto, D.C. 1952, 102 F.Supp. 890; United States v. Flynn, D.C. 1951, 103 F.Supp. 925.

 In no instance, has defendant advanced one scintilla of proof that there was any impropriety or illegal evidence presented to the Grand Jury returning the indictment herein. Furthermore, the Special Assistant to the Attorney General, who is prosecuting this ...

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