The opinion of the court was delivered by: GASCH
On January 5, 1966, following a fifteen-month investigation, a Federal Grand Jury sitting in the District of Columbia returned a nine-count indictment against the defendant in the present case, Robert G. Baker. Counts 1 and 2 of that indictment charge the defendant with evasion of income tax for the years 1961 and 1962 in violation of 26 U.S.C. § 7201. Counts 3 and 4 alternatively charge the defendant with larceny and larceny after trust of $50,000 from one Stuart Davis in violation of 22 D.C. Code §§ 2201, 2203. Counts 5 and 6 charge the defendant with larceny and larceny after trust of $17,000 from John F. Marten in violation of 22 D.C. Code §§ 2201, 2203. Count 7 charges the defendant with the interstate transportation of stolen property, to wit, $33,000, allegedly obtained by fraud from Sidney M. Taper in violation of 18 U.S.C. § 2314. Counts 3 through 7 identify the cash in question as a portion of the defendant's unreported income during the year 1962, as charged in Count 2 of the indictment. Count 8 charges the defendant with aiding and assisting one Bromley in the preparation and filing of a false 1963 return in violation of 26 U.S.C. § 7206(2). Count 9 charges the defendant conspired with Bromley and one Jones to conceal and misrepresent the existence, sources, and nature of large parts of his taxable income in violation of 18 U.S.C. § 371. In short, according to the indictment, the defendant is charged with a series of transactions which the Government contends are closely related, the ultimate purpose of which was to defraud the Government through the evasion of his income tax. On January 24, 1966, the defendant was arraigned and entered a plea of not guilty.
Subsequently, through counsel, the defendant filed nine pretrial motions, together with memoranda in support thereof. These motions are as follows: (1) motion for suppression of evidence pursuant to Rule 41(e), F. R. Crim. P.; (2) motion to dismiss the indictment, or in the alternative, for inspection of the grand jury minutes pursuant to Rule 12 and Rule 6(e), F. R. Crim. P.; (3) motion for production and inspection of the grand jury minutes pursuant to Rule 6(e), F. R. Crim. P.; (4) motion for discovery and inspection pursuant to Rules 16 and 17 (c), F. R. Crim. P.; (5) motion for bill of particulars pursuant to Rule 7(f), F. R. Crim. P.; (6) motion to dismiss Counts 3 through 7 of the indictment pursuant to Rule 12, F. R. Crim. P.; (7) motion to dismiss Count 8 of the indictment pursuant to Rule 12, F. R. Crim. P.; (8) motion to dismiss Count 9 of the indictment pursuant to Rule 12, F. R. Crim. P.; and (9) motion for severance of counts pursuant to Rules 8 (a) and 14, F. R. Crim. P.
These motions were set for hearing on the 15th of November, 1966. Prior to that hearing, the Government filed a preliminary motion seeking to have the Court inspect, in camera, certain materials relating to the motion to suppress. These materials consist of the "logs" of electronically monitored conversations, some of which do and some of which do not involve the defendant as a participant. The Court granted the Government's motion and ordered that that portion of the materials which involved the defendant as a participant should be immediately turned over to him in order that he might more effectively argue his motion to suppress and agreed to review the remaining materials to ascertain whether there were additional conversations which involved the defendant. The Court has now concluded that review.
Hearings on these motions commenced on the 15th of November, 1966, and continued for about a week, during the course of which the parties were given full opportunity to present their evidence, both oral and documentary on the issues presented. At the conclusion of the hearings, the Court took these motions under advisement, and they are now ready for disposition. These motions will be considered seriatim.
(1) Motion for Suppression of Evidence.
Defendant Baker's motion for suppression of evidence is predicated upon the contention that the Government, in violation of Baker's constitutional rights, obtained certain evidence by means of electronic surveillance. The Government concedes that its electronic surveillance did, in fact, violate this defendant's constitutional rights in that some of the conversations recorded were those in which defendant was a participant. The Government contends, however, that none of Baker's conversations electronically recorded led to information which resulted in the nine-count indictment which is now lodged against the defendant.
The defense has been furnished with the excerpts from these recordings, which are identified as the conversations in which Baker participated. The defense has been given the opportunity of interrogating, under oath, those representatives of the Government who participated in the recording of these conversations of the defendant, as well as those who supervised these activities. It has not been established that any of Baker's recorded conversations has any causal connection with, or relationship to, the indictment. Furthermore, the Government has submitted affidavits that the evidence which it intends to utilize in this case comes from a source, or sources, completely independent from the source which the defense seeks to suppress. The defense could have interrogated these affiants as to the basis of these statements.
The Government requested the Court to read a series of logs and, in effect, to check the logs to ascertain whether any other Baker conversations appear. The Court has done this and has found none. During the interrogation of the Government agents who monitored the conversations in question, it developed that certain conversations were monitored which were unidentified. These were few in number and concerned trivial matters, social in character, which have no relevancy to the subject matter of the indictment. From time to time Baker's name was mentioned by others whose conversations were recorded, but these were instances which involved other transactions which have no relationship to those which form the subject matter of the indictment before this Court.
With respect to conversations recorded in the suite of one Black in the Carlton Hotel in Washington during the months of February, March, and April of 1963, the defense contends through the testimony of Black and Baker that Baker has established standing because of the fact that he had a key to Black's suite and because he had access at all times to his suite.
One of the cases relied upon is Jones v. United States.
In Jones, supra, while executing a search warrant, Federal agents found narcotics hidden in a bird's nest in a window awning of the apartment they were searching. The defendant was a guest in the apartment which had been leased by a friend who was away for several days. The defendant's subsequent motion to suppress the narcotics was resisted by the Government on the grounds that he lacked the requisite "standing" to object to the search. The Supreme Court held that the defendant's status as a guest in the apartment constituted a sufficient possessory interest in the premises to enable the defendant to invoke the protection of the Fourth Amendment. Jones is authority for the standing of a guest to challenge the legality of the manner in which narcotics were seized in, or adjacent to, the apartment of his host. Jones is not authority for the proposition that the guest stands in the shoes of the host to suppress the fruits of any and all unlawful acts that may be committed by the authorities, insofar as the apartment is concerned, particularly those which do not relate to the guest.
The Government recognized this proposition of law by making available to the defendant the transcriptions of all conversations in which he was a participant,
and by refusing to give him others.
At this point the Government contends that since there is no relevancy between the conversations in which defendant was a participant and the indictment that no taint attaches to the indictment. The defense, on the other hand, insists upon the opportunity to examine all transcriptions, including those recorded conversations between other persons and concerning many other subjects which do not in the slightest concern the defendant. Even if Baker had some unrevealed interest in these conversations in which he was not a participant, they have no relevancy to the indictment and are, therefore, extraneous.
The defendant and his business associate, Black, took the witness stand respecting the special status of the defendant in the suite rented by Black at the Carlton. The substance of the testimony is that Baker had a key, that he was welcome at all times as a guest of Black. The suite consisted of two rooms - a sitting room and a bedroom - in each of which there was telephone service. The defendant testified that he made many telephone calls from this suite in the three month period under consideration. He testified that he conferred with others in the suite. The Government has turned over to the defense all excerpts of the recorded conversations in which the defendant was a participant. This is in compliance with defendant's motion to suppress in which he specified those conversations in which defendant was a participant. On cross-examination of defendant, the Government sought to elicit testimony from the defendant as to which portions of the recorded conversations were relevant to any matters contained in the indictment. Over the objection of the defense, the Court permitted this line of interrogation under the authority of the Branch case in our Court of Appeals,
since on direct examination Baker had testified concerning his business conferences and calls. Defendant was unable to provide the Court with any specificity whatever concerning the relevancy of these calls to any matters contained in the indictment, nor was his counsel able to establish any such relationship. With respect to the conversations at the Carlton Hotel in which the defendant was a participant during the months of February, March, and April, 1963, the Court concludes that the defense has failed to establish any causal connection between the recorded conversations and the matters contained in the indictment.
The defense examined Government monitors of the recordings respecting conversations of participants whom the monitors could not identify on the theory that some of these conversations might have been those of the defendant Baker. The Court concludes that none of these conversations respecting unknown participants have any causal connection with matters contained in the indictment. However, in the interest of affording the defendant all reasonable discovery, and in view of the special standing for which the defense contends with respect to defendant Baker in this suite of Black in the Carlton, the Court will order that the Government furnish to the defense all conversations attributed by the monitors to unknown participants during the period in question. The invasion of the privacy
of known participants, other than defendant, in these recorded conversations will not be compounded by the release of them by the Court.
With respect to conversations monitored by the Government in the executive suite of one Levinson in the Fremont Hotel at Las Vegas, the defense has not established any special standing of the defendant Baker concerning that suite. These recordings were part of an investigation of the alleged "skimming" operations of Levinson and pursuant to this electronic surveillance, certain conversations in which the defendant participated were recorded. The Government has given to the defense all such conversations. The Court has examined the logs of all recorded conversations in the executive suite of Levinson in the Fremont Hotel at Las Vegas and has found no additional conversations in which the defendant Baker was a participant. The Court finds that none of the conversations in which the defendant participated has any relevance to the matters contained in the indictment. Conversations, few in number concerning unknown participants, were also recorded. Since no standing has been established by the defendant Baker with respect to the executive suite of Levinson, the Court does not feel that the defense is entitled to these conversations, or to other conversations than those in which the defendant was a participant. Here, again, the Court will not compound the wrong admitted by the Government in releasing the conversations of other participants and, thus, further invading their privacy.
A few conversations were recorded in which the participants are unknown. These conversations by and large are trivial and of no significance and clearly have no relevance to the matters contained in the indictment. The Court concludes that since no special standing has been established by the defense concerning the defendant Baker in the Sigelbaum office, that the defendant is not entitled to recorded conversations of these unknown participants nor to those in which he was not a participant.
Other logs of recorded conversations at other places in Las Vegas were delivered to the Court for its inspection. The Government has represented that in these recordings no conversations were recorded in which the defendant Baker was a participant. The Court has examined these logs and finds the representation of the Government to be accurate. The Court further finds, in view of the fact that the defendant Baker has established no special standing concerning these other places, that he is not entitled to the conversations of unknown participants nor to the conversations in which he did not participate. Additionally, the Court has observed no conversations of any participants which concern, or have any relevance to, matters contained in the indictment.
In view of the Government's concession of illegality, the defendant's motion to suppress those conversations in which the defendant was a participant will be granted. It is noted that recordings of all such conversations have been delivered to the defense. In view of the defendant's special standing with respect to the Black suite at the Carlton, additional conversations recorded at that point respecting unknown participants will be delivered to the defense by the Government, and they will be suppressed. For the reasons hereinbefore stated, the defendant's motion to suppress with respect to additional conversations will be denied. All logs submitted to the Court will be impounded and held for appellate review.
In view, however, of the decision of the Supreme Court in Black v. United States,
the defense will be given the opportunity of further inquiry during the course of the trial,
out of the presence of the jury to the degree deemed reasonable by the Court, to establish whether a causal connection exists between such recordings and evidence sought to be offered by the Government in support of the indictment.
In view of the ruling heretofore made respecting the defendant's motion to suppress and the opportunity afforded the defense during the course of the trial of this cause to examine witnesses and elicit further testimony concerning any causal connection between unlawful recordings and evidence which the Government will seek to introduce during the course of the trial and the opportunity which the defense has been afforded to question the monitors of the conversations recorded and other agents of the Federal Bureau of Investigation who have been in charge of this aspect of the Government's surveillance, subpoenas
on other agents of the Government will be quashed.
(2) Motion to Dismiss the Indictment, or in the Alternative, for Leave to Inspect the Grand Jury Minutes.
As a result of the alleged bias and prejudice, defendant contends that his rights under the Fifth Amendment to indictment by a fair and impartial grand jury were violated. In support of this proposition, the defendant relies primarily on Beck v. Washington.
In that case, a specially convened grand jury, acting upon information uncovered by a Senate investigating committee, indicted the controversial labor leader, Dave Beck.
Upon the return of an indictment, Beck moved for dismissal on the grounds that the impaneling judge had failed to conduct a voir dire examination of the prospective grand jurors to ascertain whether any of them were biased or prejudiced and, thus, whether his right to a fair and impartial grand jury under the due process clause of the Constitution was violated. Beck's evidence of bias was very similar to that relied on in this case and consisted primarily of a showing of adverse publicity which presupposed his guilt and the impaneling judge's alleged failure to instruct properly the grand jurors.
His motion was denied and his eventual conviction was upheld by the Washington Supreme Court. Refusing to even "remotely intimate any view" on the validity of the defendant's claim that the due process clause requires an unbiased grand jury, the Supreme Court affirmed, holding that no specific evidence of actual prejudice had been shown. However, the majority did cite dicta in three cases which indicated that they thought a plausible argument might be made in support of the defendant's premise.
In finding no evidence of prejudice in Beck, the Supreme Court emphasized the limited voir dire conducted by the trial judge prior to impaneling the grand jury and pointed out that no juror personally knew Beck, was shown to be adverse to labor unions, and that each had taken an oath not to indict any person through "hatred or malice." The Court further pointed out that the grand jury sat for six weeks, heard voluminous testimony, and gave the matter meticulous consideration. In sum, the Supreme Court looked at the totality of circumstances surrounding the impanelment and deliberations of the grand jury and concluded that Beck had failed to show that the body that indicted him was biased or prejudiced against him.
In the present case, the grand jury transcript consists of approximately ten thousand pages. The record shows that this was not a specially convened but rather a regularly impaneled grand jury, the members of which took an oath to "diligently, fully and impartially inquire into and true presentment make of all offenses which shall come to your knowledge" and to "present no one from hatred or malice, nor leave anyone unpresented from fear, favor, affection, reward, or hope of reward."
The Court has no reason to assume that the members of the grand jury failed to live up to this obligation. In fact, as the Court said in United States v. Kahaner:
While it is true that the impaneling judge did not instruct the prospective members of the grand jury to disregard adverse publicity, on several occasions the Government counsel who presented this matter to the grand jury admonished them in this respect. For example, at Page 9988 of the grand jury minutes, the members were instructed as follows:
"Now, during the course of this Grand Jury's investigation, myself and the attorneys assisting you in your investigation, have from time to time told you to consider as evidence only the sworn testimony which you have heard from that witness chair and the documents that have been produced before you, and not various newspaper stories, books, radio, television reports and the like.
"This morning, as your investigation comes to a close, I will again want to caution you about this. You should clearly understand that the newspaper, radio and television reports are not evidence. They are not to be considered by you as evidence.
"Equally important, you should not be prejudiced in any manner whatever by reason of such publicity.
"You should not feel coerced or pressured as a result of the publicity which from time to time has been apparent during this investigation. Newspaper, radio, television, and other accounts, have no place in your consideration or ultimate decision of the issues before you."
It is significant that this admonition was given shortly before the members of the grand jury voted on the indictment under consideration. At Pages 578-9 of the transcript of the hearings on these motions, defense counsel expressed the view that such an admonition would, in effect, protect the basic rights of the defendant.
In addition, the grand jury sat for over a year, heard approximately one hundred and seventy witnesses, and examined thousands of documents, all of which would indicate that the members thereof gave careful and meticulous consideration to the evidence before them prior to their returning this indictment. Furthermore, most of the matters before the grand jury were ignored. Certainly, as to those matters, the defense has not established any entitlement. Counsel has conceded
that the secrecy of those minutes which does not result in an indictment should be preserved.
The courts which have cited the Beck case, supra, have done so in support of the proposition that adverse publicity alone does not in itself constitute a sufficient showing of bias and prejudice to warrant dismissal.
In the Estes case, the defendant moved to be allowed to exercise challenges for cause as to the individual grand jurors, based upon the alleged bias and prejudice which he contended emanated from the extensive publicity surrounding the case. The motion was denied and Estes was convicted, on review, the Fifth Circuit, after discussing Rule 6(b)(1), F.R. Crim. P., which sets forth the grounds on which a defendant may challenge the array of grand jurors, quoted with approval Judge Holtzoff's statement in United States v. Knowles,
to the effect.
"Challenges for bias, or for any cause other than lack of legal qualifications, are unknown as concerns grand jurors. No provision is made for peremptory challenges of grand jurors and no such challenges are permitted. Likewise no voir dire examination exists in respect to grand jurors. In other words, the status of a member of a grand jury may not be questioned except for lack of legal qualifications."
and on the Beck v. Washington, supra, point, the Court continued:
"There was no specific showing of bias and prejudice by appellant resulting from the widespread publicity, and the fact alone of such publicity did not in itself constitute a sufficient showing of bias and prejudice."
In the Hoffa case, supra, the Florida District Court held that a specific showing of prejudice is necessary to vitiate the indictment and that the mere demonstration of adverse publicity was insufficient to establish such prejudice. After discussing Beck v. Washington, supra, the Court went on to say, at page 718:
"Nothing in that decision is contrary to the principles discussed hereinabove; and inasmuch as the Court finds that the defendants in this case likewise failed to establish that the grand jury was biased or prejudiced against the defendants, this claimed ground for dismissal is without merit."
The defendants in the Hoffa case also contended that the impaneling judge erred in failing to instruct the grand jury to ignore the adverse publicity. On this point, the Court stated, at Page 719:
"The alleged failure of the presiding Judge to give cautionary instructions to the grand jury against bias and prejudice does not warrant a dismissal of the indictment, especially in the light of any specific proof that the grand jury was, in fact, biased and prejudiced."
In Beck v. United States,
Beck was prosecuted for income tax evasion arising out of the same factual situation involved in the State of Washington prosecution. With regard to the adverse publicity, the Court said at 627:
"We rule that a specific showing of prejudice is necessary to make erroneous the action of the trial judge in refusing to dismiss the indictment."
See also United States v. Osborn.
In view of the complete absence of any specific showing of prejudice in this case, the Court feels that no useful purpose would be served by allowing the defendant to inspect the grand jury minutes in order to further investigate the possibility of bias.
Historically, grand jurors were selected from the body of the people, and their work was not hampered by rigid procedural or evidential rules. Grand jurors could act on their own knowledge and were free to make their presentments or indictments on such information as they deemed satisfactory.
In Lawn v. United States,
355 U.S. at 350, the Court was urged to establish a rule permitting defendants to challenge indictments on the ground that they were not supported by adequate or competent evidence. This the Court declined to do, saying it would run counter to the whole history of the grand jury institution in which laymen conduct their inquiries unfettered by technical rules. Neither justice nor the concept of a fair trial requires such a change. In a trial on the merits, defendants are entitled to a strict observance of all the rules designated to bring about a fair verdict. Defendants are not entitled, however, to a rule which would result in interminable delay but add nothing to the assurance of a fair trial. In Lawn, supra, the Court held that petitioners were not in the circumstances of that case entitled to a preliminary hearing to enable them to satisfy their unsupported suspicions that the 1953 grand jury, which returned the indictment in question, had made improper use of materials which were before another grand jury.
Here, defendant has made absolutely no showing that the extensive publicity to which defendant's pleadings refer had any adverse effect upon the grand jury which was sitting to consider this case. Accordingly, defendant's motion to dismiss the indictment on the ground of adverse publicity, or in the alternative for leave to inspect the grand jury transcript will be denied.
(3) Motion for Production and Inspection of the Grand Jury Minutes.
Further, for the reasons stated above and in view of the numerous precedents supporting nondisclosure which set forth the traditional reasons advanced for preserving the grand jury secrecy,
the defendant's separate motion for production and inspection of the grand jury minutes will also be denied.
Defendant has also sought leave to examine the grand jury testimony of the witnesses on whom the Government will rely at trial. Normally, grand jury testimony is producible only upon a showing of "particularized need." Pittsburgh Plate Glass Co. v. United States, supra. As the Supreme Court indicated in Procter & Gamble, supra, and reaffirmed in Dennis, supra, the need for a full and fair cross-examination may provide the necessary "particularized need."
In the present case, after these witnesses have testified at trial, the Court will make their ...