the subcommittee or any of its members only goes to the question of prejudice, and he relies on the holding in the Coplon case, supra (89 U.S.App.D.C. 113, 191 F.2d 759), that the Fifth and Sixth Amendments to the Constitution 'unqualifiedly guard the right to assistance of counsel, without making the vindication of the right depend upon whether its denial resulted in demonstrable prejudice.' In that case the defendant alleged in a motion for a new trial in this jurisdiction that she had discovered for the first time at a subsequent hearing in New York that her telephone wires at her home and office in Washington and at her home in Brooklyn had been tapped by F.B.I. agents prior to, during and subsequent to her trial here. Our Court of Appeals set aside the order of this Court denying the motion for a new trial and remanded the case for a hearing to determine whether the alleged interceptions actually occurred, in which event, a new trial was also ordered. The following is also an excerpt from the Coplon case (89 U.S.App.D.C., at page 113, 191 F.2d at page 759):
'We consider it equally true that a defendant and his lawyer have a right to talk together by telephone without their conversations being monitored by the prosecution through a secret mechanical device which they do not know is being used. It would not be an answer to say that the accused cannot complain of the interception of his telephone conversations with his counsel if he had on other occasions ample personal consultation with his lawyer, face to face, which no person overheard. That fact would not erase the blot of unconstitutionality from the act of intercepting other consultations.
The defendant also insists that the subcommittee is bound by and responsible for Shacklette's acts whether or not it knew of or consented to them under (1) agency law, and (2) the doctrines of due process and civil rights cases. Consideration had been given to all the cases cited in this respect, and I am of the opinion that they are inapplicable to the factual circumstances of the instant case. On the contrary, I cannot see how a subcommittee, or any other arm of government, can be so thwarted in its efforts to carry out its work by the completely unauthorized and unknown illegal activities of one of its employees, the fruits of which were not even communicated to it. See Cooper v. Denno, D.C.S.D.N.Y.1955, 129 F.Supp. 123, affirmed 221 F.2d 626, certiorari denied 349 U.S. 968, 75 S. Ct. 906, 99 L. Ed. 1289, and Krull v. United States, 5 Cir., 1957, United States ex rel. Cooper v. Denno, 240 F.2d 122, certiorari denied 353 U.S. 915, 77 S. Ct. 764, 1 L. Ed. 2d 668.
It is certainly understandable that the defendant should complain of and be indignant at the intrusion upon his conversations with his counsel in the manner revealed at the hearing, and it may well be that such should be considered in mitigation of any punishment which would be visited upon him if convicted of the charges in the indictment. But he cannot thereby wholly escape the consequences of his refusal to answer pertinent questions propounded by the subcommittee in its authorized inquiry into facts necessary for proper legislation. His refusal to answer the questions involved was upon the ground that they were not pertinent, and proof of this is the burden he must face.
The motion will be denied. Counsel will prepare an appropriate order carrying this decision into effect.
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