The opinion of the court was delivered by: CURRAN
The defendant in the above entitled cause was indicted by a Grand Jury for perjury (18 U.S.C. § 1621) on July 3, 1963. The case went to trial October 1, 1963 and on October 8, 1963 a mistrial was declared R.C., 222 F.Supp. 264, the jury discharged and the case was passed for trial. On October 30, 1963 the defendant filed motions to dismiss the indictments in Criminal Case Number 599-63 and Criminal Case Number 600-63, which were heard on November 1, 1963.
It is alleged in Criminal Case Number 599-63 that the defendant gave 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 also 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 also alleges that the Grand Jury was making an inquiry to determine whether, in connection with the case of United States v. Allan U. Forte, Criminal Number 741-61, there had been committed in the District of Columbia a conspiracy, influencing a witness, perjury, subornation of perjury, abortion and bribery. It was also alleged that it was material for this Grand Jury 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. 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 the aforementioned case. It was also alleged that it was material for the Grand Jury to ascertain the relationship and any communications between one Bernice Gross, a witness under subpoena in the aforementioned case, and any of the persons who might have been engaged in influencing or attempting to influence witnesses, as mentioned above.
When the trial commenced the Government indicated that it would offer in evidence certain tape recordings of telephone communications between the defendant and Bernice Gross, two of which communications preceded the date of the defendant's testimony before the Grand Jury. United States District Judge Luther W. Youngdahl, in the absence of the Jury, heard testimony to determine: (1) Whether Bernice Gross had voluntarily given her consent to have the recordings made of her telephone calls with the defendant; (2) Whether, assuming consent on the part of Bernice Gross, the admission of such evidence would violate 47 U.S.C. § 605, any case law on the subject, or any provision of the Constitution of the United States.
The evidence disclosed 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. The induction coil led to a tape recorder on which the conversations were recorded while they were being made. Judge Youngdahl ruled, assuming a voluntary authorization on the part of Mrs. Gross, that the tapes would be admissible.
In a memorandum dated October 8, 1963, Judge Youngdahl said:
'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 the 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 the jury.'
The tapes were played during the direct examination of Mrs. Gross, who was called as a witness by the Government. On cross-examination she was asked whether she had voluntarily consented to having the recordings made, and she responded that she felt she had to cooperate. Judge Youngdahl then excused the jury and questioned Mrs. Gross on the issue of voluntariness. Mrs. Gross admitted to two Assistant United States Attorneys that she had perjured herself before the Grand Jury. She reappeared before the Grand Jury the same afternoon. Later that same day the first two telephone conversations were taped in the Office of the United States Attorney. At the time Judge Youngdahl ruled that Mrs. Gross' authorization had been voluntarily given and that the tapes therefore could be played ...