The opinion of the court was delivered by: YOUNGDAHL
The defendant in this case is an attorney who is charged with perjury, 18 U.S.C. § 1621, in giving the following answers to the following questions before a duly constituted grand jury on March 6, 1963:
'Q. Do you even know Bernice Gross?
'A. No, I wouldn't say I know her if I saw her on the street. I heard her name because it came out during the trial. I would not know her if I met her on the street.
'Q. Have you ever talked to Bernice about this case?
'Q. Ever talked to her on the telephone at all?
The indictment alleges twenty-six different dates prior to the above testimony before the grand jury on which the defendant allegedly talked to Bernice Gross on the telephone. The indictment further alleges that the grand jury was conducting an inquiry to determine, among other things, whether, in connection with the case of United States v. Allan U. Forte, Criminal Case No. 741-61, there had been committed in the District of Columbia violations of 18 U.S.C. § 371 (Conspiracy), 18 U.S.C. § 1503 (Influencing Witness), 18 U.S.C. § 1621 (Perjury), 18 U.S.C. § 1622 (Subornation of Perjury), 22 D.C.C. § 201 (Abortion), 22 D.C.C. § 701 (Bribery). It was further alleged, among other things, that it was material to this grand jury inquiry to ascertain the identity and actions of any person or persons who might have conspired to commit, or committed, the offense of endeavoring, corruptly, to influence a person being, or about to be, a witness at the proceedings preliminary to, and in the trial of Counts One and Two of United States v. Allan U. Forte, supra, and the identity and actions of any person or persons who might have given or received or offered or been offered any money or other things of value for the purpose of corruptly influencing, intimidating, or impeding any witness in United States v. Allan U. Forte, supra. It was further alleged that it was material to the above inquiry to ascertain the relationship and any communications between one Bernice Gross, a witness under subpoena in United States v. Allan U. Forte, supra, and any of the persons who might have been engaged in influencing or attempting to influence witnesses as summarized above.
When it appeared at the beginning of the trial that the Government intended to offer in evidence certain tape recordings of telephone communications between the defendant Laughlin and Bernice Gross, two of which communications preceded the date of the defendant's testimony before the grand jury, the Court, in the absence of the jury, heard testimony for several days to determine:
(1) Whether Bernice Gross had voluntarily given her consent to having the recordings made of her telephone calls with the defendant, ('No person not being authorized by the sender shall intercept any communication * * *.' 47 U.S.C. § 605.)
(2) Whether, assuming consent on the part of Bernice Gross, receipt of such evidence would violate 47 U.S.C. § 605, decided case law, or any provision of the Constitution.
As to the second of these points, the relevant evidence showed that the recordings were made in the office of the United States Attorney in the United States Court House. They were made by means of an induction coil which was placed under an extension telephone while Mrs. Gross called the defendant on another telephone in the same room. Both telephones were part of the regular office equipment, not installed specially for the purpose of these calls. The induction coil led to a tape recorder on which the conversations were recorded while they were being made.
On the basis of this evidence, the Court ruled that, assuming voluntary authorization on the part of Mrs. Gross, the tapes would be admissible. The Court so ruled despite the fact that neither the Supreme Court nor the Court of Appeals for this circuit has squarely passed upon the admissibility of such evidence. Without presuming to predict how those courts would decide this issue were it to arise, this Court concluded that certain cases in those courts admitted evidence under somewhat similar circumstances and that no case in those courts barred evidence secured in the manner described in the instant case. See Lopez v. United States, 373 U.S. 427, 83 S. Ct. 1381, 10 L. Ed. 2d 462 (1963) (tape recorder on the person of a witness recorded face-to-face conversation; tapes admissible as corroboration); Rathbun v. United Stated, 355 U.S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957) (witness could testify to telephone conversation overheard, with consent of one party, on extension telephone); Monroe v. United States, 98 U.S.App.D.C. 228, 234 F.2d 49 (1956) (recordings made on person of party to face-to-face conversation, admissible). In reaching this conclusion, the Court relied upon the reasoning in several cases from Courts of Appeals in other circuits and from the highest court of a state, all of which had held that recordings made under similar circumstances were not barred by 47 U.S.C. § 605 and were admissible. Carnes v. United States, 295 F.2d 598 (5th Cir., 1962); United States v. Williams, 311 F.2d 721 (7th Cir., 1963); Carbo v. United States, 314 F.2d 718 (9th Cir., 1963); Ferguson v. United States, 307 F.2d 787 (10th Cir., 1962), cert. granted, 374 U.S. 805, 83 S. Ct. 1698, 10 L. Ed. 2d 1030 (1963); People v. Malotte, 46 Cal.2d 59, 292 P.2d 517 (1956). But see United States v. Polakoff, 112 F.2d 888, 134 A.L.R. 607 (2d Cir., 1940); Reitmeister v. Reitmeister, 162 F.2d 691 (2d Cir., 1947).
As to the first point -- Mrs. Gross's voluntary authorization to have the recordings made -- the only testimony was that of Harold J. Sullivan, an assistant United States Attorney who had tried United States v. Allan U. Forte, supra, who had interrogated Mrs. Gross, the defendant, and others before the grand jury, and who supervised the making of the recordings. Mr. Sullivan testified that Mrs. Gross was agreeable to having the conversations taped. The Government did not put Mrs. Gross on the stand to establish the voluntariness of such authorization, and the defendant called no witnesses. In that state of the evidence, the Court concluded that the authorization had been voluntarily given, and after determining that tapes were audible, see Monroe v. United States, 98 U.S.App.D.C. 228, 234 F.2d 49 (1956), permitted the tapes to be played before they jury.
The tapes were played during the direct examination of Mrs. Gross, who was, of course, called as a witness by the Government in the presentation of its case to the jury. She testified to a number of telephone conversations, and one meeting in person, between herself and the defendant prior to the defendant's appearance before the grand jury on March 6, 1963. She also identified the voices on the tapes as those of herself and of the defendant. On cross-examination, however, she was asked for the first time whether she had voluntarily consented to having the recordings made, and her response was: 'I felt I had to cooperate.' (Tr. 160.) The Court thereupon excused the jury and questioned Mrs. Gross on the issue of voluntariness. It appeared that Mrs. Gross had been brought before the grand jury on the morning of March 1, 1963, at which time she denied having known the defendant or having talked with him. Later, she was taken to the office of Joseph M. Hannon, an assistant United States Attorney, and interrogated by Mr. Hannon and Mr. Sullivan. During the course of this interrogation, she was shown certain incriminating evidence, and finally admitted that she had perjured herself before the grand jury. She then made additional statements, which were taken down by a stenographer, and reappeared before the grand jury the same afternoon. Later that same afternoon, the first two of the several recorded telephone conversations were taped in the office of the United States Attorney. At the time the Court ruled that Mrs. Gross's authorization had been voluntarily given, and that the tapes could therefore be played before the jury, the Court had not read the following exchange between Mr. Sullivan, Mrs. Gross, and the deputy foreman of the grand jury,
which exchange immediately preceded the making of the recorded telephone conversations:
'Q Just before the Grand Jury then one final thing. You did say, didn't you Mrs. Gross, that since you have come forward and told the truth now you would also be agreeable to having someone listen in on ...