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 before the jury, he had not read the exchange between Mr. Sullivan, Mrs. Gross and the Deputy Foreman of the Grand Jury, which exchange preceded the making of the recorded telephone conversations.
47 U.S.C. § 605 'contemplates voluntary consent and not enforced agreement to publication.' See Weiss v. United States, 308 U.S. 321, 330, 60 S. Ct. 269, 84 L. Ed. 298 (1939).
After Judge Youngdahl read the transcript of the exchange between Mr. Sullivan, Mrs. Gross and the Deputy Foreman of the Grand Jury, and had questioned Mrs. Gross as to the circumstances under which she made the telephone calls, he concluded that the Weiss case was dispositive of the issue in the present case and required the exclusion of the tapes on the ground that Mrs. Gross' consent was not voluntary. I agree.
Perjury cannot be proved by the uncorroborated testimony of one witness, since the falsity of one person's oath cannot be established by another person's oath alone. In other words, in a perjury prosecution the uncorroborated oath of one witness is not enough to establish, for purposes of conviction of perjury, the falsity of sworn testimony.
Before the Grand Jury the Assistant United States Attorney in charge of the presentation of the case made the statement that without Mrs. Gross' testimony 'the whole thing falls apart,' and then made the further statement 'we need Mrs. Gross; without her we have got nothing, without her we have got nothing.' Even if the Government were able to show by records of the Chesapeake and Potomac Telephone Company that there were phone calls between Mr. Laughlin's office and the United States Attorney's Office, this would be of no consequence for it would have no legal efficacy under the circumstances of this case, as it would be impossible to show who was carrying on the conversations. It follows, therefore, that the motion of the defendant Laughlin to dismiss in Criminal Case Number 599-63 must be and the same is hereby granted.
One further matter deserves comment. The Government's position is that the use of an induction coil is not an interception within the meaning of 47 U.S.C. § 605. However, a message is 'intercepted' within the prohibition of the Federal Communications Act when anyone intercepts a message to whose intervention as a listener a communicant does not consent, irrespective of the means employed to accomplish the interception. The Statute does not mention physical interruptions of a circuit nor does it use the word 'taps.' The Statute refers only to 'interceptions' and the means employed are of no consequence, for it is the breach of privacy that counts.
To interpret the Federal Communications Act as meaning that a third party who can record a whole conversation on a tape is not an interception does not, in my opinion, make sense for it is destructive of personal liberty. All this highly technical language to the effect that a mechanical device attached to a telephone constitutes an interception, and a mechanical device or an electronic device or an induction coil not directly attached to a telephone or a telephone line, but that is capable of recording a whole conversation between the parties, is not an 'interception' is sheer nonsense. The Courts should meet the issue squarely and should not attempt to make technical distinctions between the mechanical methods used. What difference does it make whether a tapped wire records a conversation and an induction coil or other mechanical device does the same thing? To say that there is a difference is a sham and an illusion. Attempted distinctions designed to defeat the plain meaning of § 605 of the Federal Communications Act must not be countenanced. It follows, therefore, that where a conversation is recorded, regardless of the methods or the means used, without the consent of one of the parties, the right of privacy has been violated. I realize, of course, that the prohibition against 'interceptions' of communications under § 605 of the Federal Communications Act sometimes hampers law enforcement officials in the detection and prosecution of certain crimes, especially when some of the criminal element choose to conduct their negotiations by means of a telephone. Any remedial legislation to cope with this situation rests with the Congress of the United States and, unless and until the Congress passes such legislation, the Courts are without power to act.
In Criminal Case Number 600-63, which is the conspiracy charge against Forte and Laughlin, the motion to dismiss is denied. The motions to impound the tape recordings are also denied. The motion for discovery has been temporarily withdrawn.
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