the statute, that is to say, a telephone conversation which is not antiphonal; but from the transcript of the recording in this case, which has been received in evidence on the motion only, the conversations are clearly antiphonal and come within the general rule expressed by Judge Hand. In addition, the expert witness testified that there was no physical method by which the record could be deleted or severed, so as to permit playing back only the voice of Parsons. Of course the words uttered by defendant could be deleted from the transcription made from the recording disc, leaving only the words of Parsons for introduction in evidence, but this would deprive defendant of his right to be confronted by the best evidence, namely the disc, which is available in this case. In addition, the evidence shows that more than one transcription has been made from this disc and that they differ in many respects, due no doubt to difficulty in hearing distinctly what the recording reproduced. I know of no way to require defendant to agree in advance as to which, if any, is a correct version, assuming the transcription as secondary evidence could be received under some exception to the best evidence rule.
The only opinion of the Court of Appeals of this circuit bearing directly on the question here involved which has been brought to my attention is James v. United States, 1951, 89 U.S.App.D.C. 201, 191 F.2d 472, 474, where the appellants complained that the District Court erred in refusing to permit them to play in the presence of the jury a wire recording of an alleged conversation between a Government witness and two defense witnesses for the purpose of impeaching the Government witness. The recording was played in the hearing of the Government witness, in the absence of the jury, after which he denied that it was his voice recorded on the wire. But the Court then significantly added that 'even if it was his voice, the recording was obviously inadmissible and the court did not err in rejecting it, because Charles (the Government witness) did not consent to the interception of the conversation and the use of the recording as evidence.' Also, significantly, the Court cited United States v. Polakoff, supra. In Billeci v. United States, 87 U.S.App.D.C. 274, 184 F.2d 394, 24 A.L.R.2d 881, which was the appeal of United States v. Lewis, supra, the Court of Appeals did not discuss the question herein involved, but reversed on other grounds.
I therefore am of the opinion that the authorization required by the statute is lacking in this case.
For the foregoing reasons, I come to the conclusion that the acts of Parsons above set forth constituted a violation of Sec. 605 of the Communications Act, supra. This conclusion is consonant with, and supported by, the regulation of the Federal Communications Commission requiring the 'beep' system to be installed whenever telephonic recording devices are used.
The acts being in violation of the statute, the evidence obtained thereby must be suppressed under the Nardone cases, supra, and Weiss v. United States, 1939, 308 U.S. 321, 60 S. Ct. 269, 84 L. Ed. 298. Accordingly, the motion to suppress will be granted.
Pursuant to the second Nardone case, supra (308 U.S. 338, 60 S. Ct. 268), I shall hear further argument and evidence if necessary as to what else, if anything, should be suppressed as 'fruit of the poisonous tree', to use the language of Nardone.
Of course, I do not know what evidence the Government possesses other than that hereby required to be suppressed, but in the event the granting of this motion leaves it, in the opinion of the United States Attorney, without sufficient evidence to proceed, it is not necessary that it rest with my judgment, as in the past, but under the authority of the recent case of United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d 13, it may take an appeal and obtain a review of my decision.