(Witness was excused.)
In the light of this testimony before the grand jury and in light of Mrs. Gross's statement that she felt she 'had to cooperate' in making the telephone calls and permitting them to be recorded, the Court questioned Mrs. Gross as follows:
'THE COURT: Now, Mrs. Gross, you heard the answer repeated by Mr. Kaufman, the reporter, that in answer to Mr. Laughlin's question you felt you had to cooperate in permitting these telephone calls to be made. What did you mean by that?
'THE WITNESS: Well, it wasn't a question of whether I wanted to, any more. It was what I had to do -- within myself. I mean there was no threat of any kind made to me; if that is what it implied I am sorry.
'THE COURT: I still don't understand what you meant when you said that you felt you had to.
'THE WITNESS: Well, I knew I should at that point, that I -- I had to. I had to cooperate --
'THE COURT: Why did you have to? Couldn't you have refused to do something?
'THE WITNESS: I don't know. I guess I could have refused.
'THE COURT: Then what did you mean when you said you had to?
'THE WITNESS: I thought it would be best for me.
'THE COURT: Best for you with reference to what possible action the Grand Jury might take in your case?
'THE WITNESS: Yes, sir.' (Tr. 161-2.)
The Supreme Court has held unanimously that 47 U.S.C. § 605 'contemplates voluntary consent and not enforced agreement to publication.' Weiss v. United States, 308 U.S. 321, 330, 60 S. Ct. 269, 272, 84 L. Ed. 298 (1939). This Court has concluded that the Weiss case is dispositive of the issue in the present case, and requires the exclusion of the tapes on the ground that Mrs. Gross's consent was not voluntary. In Weiss, certain defendants among a group indicted were confronted with recordings which the Government had made of telephone conversations, and decided -- 'under the stress of this situation,' as the Supreme Court said, ibid. -- to plead guilty, turn state's evidence against their co-defendants, and permit the recordings to be played. One of the defendants who cooperated in this manner was not even required to plead, and the other three who cooperated had their sentences suspended. Ibid. These facts and others indicating that certain of the defendants continued to receive Government salaries convinced the Supreme Court
'that the so-called authorization consisting of the agreement to turn state's evidence, by some of the defendants after they had been apprized of the knowledge of their communications by the Government's representatives, and in the hope of leniency, was not that intended or described by the statute and emphasis the offensive use which may be made of intercepted messages, whether interstate or intrastate. It is not too much to assume the interdiction of the statute was intended to prevent such a method of procuring testimony.' 308 U.S. at 330-331, 60 S. Ct. at 273, 84 L. Ed. 298. (Emphasis added.)
In the present case, it is clear to the Court that the statements of both Mr. Sullivan and the deputy foreman of the grand jury, as quoted above, amounted to an implied promise that if Mrs. Gross consented to having the recordings made, she would not be indicted for perjury. Thus there was a clear 'hope of leniency,' supra, in Mrs. Gross's mind, which hope was deliberately created by the implied promises of both Mr. Sullivan and the deputy foreman. Her consent, under the implied threat of being indicted if she did not cooperate and under the implied promise that she would not be indicted if she did cooperate, is not the kind of 'authorization' contemplated by 47 U.S.C. § 605, as Weiss makes abundantly clear. Mrs. Gross has not been indicted by the grand jury.
The Government argues that the present case is different from the facts discussed in Weiss in that here the recordings were made after the witness agreed to cooperate, while in Weiss the recordings were made before such agreement. It seems to this Court, however, that the timing of the consent does not go to the issue of whether or not it was voluntarily given, and that purported consent before the recordings are made is as bad, if not worse, than purported consent after such recordings have already been made.
Nor is the case of Ladrey v. Commission on Licensure, 104 U.S.App.D.C. 239 261 F.2d 68 (1958), cert. denied 358 U.S. 920, 79 S. Ct. 288, 3 L. Ed. 2d 239, cited by the Government, relevant to the instant facts, because in that case there is no discussion of any promise of leniency in return for cooperation with the police. 104 U.S.App.D.C. at 243-244, 261 F.2d at 72-73. It is the implied promise of leniency in the present case which distinguishes it from Ladrey and from the other cases cited by the Government.
The tape recordings in the present case, inadmissible under, Weiss, should not have been played within the hearing of the jury. The Court has considered instructing the jury to disregard such tape recordings and dismiss them from their minds, but because of the strong and clear impression of defendant's guilt which the recorded telephone conversations undoubtedly have made upon the minds of the jurors, such a cautionary instruction would obviously not protect the rights of the defendant to a fair and impartial trial. See, e.g., Boyer v. United States, 76 U.S.App.D.C. 397, 398, 132 F.2d 12 (1942). Under these circumstances, since the ends of substantial justice cannot be attained without discontinuing the trial, on motion of the defendant this Court will declare a mistrial.