The opinion of the court was delivered by: GASCH
Defendant's motions to dismiss the indictment and to suppress certain portions of the testimony of the witness Bromley and certain recordings were filed on 11 January, 1967.
These motions are based on information delivered to counsel for the defendant as a result of this Court's memorandum opinion dated the 20th of December, 1966. In addition, the defendant seeks the production of various other materials.
These motions are predicated upon the defendant's contention that the Government, through the activities of Wayne Bromley, deprived him of his privilege against self-incrimination, due process of law, and his right to counsel under the Fifth and Sixth Amendments to the Constitution.
More specifically, the defendant contends his rights were violated by the Government's (1) recordation of a telephone conversation between the defendant and Wayne Bromley on the 25th of March, 1965, and (2) the electronic monitoring of a meeting between the defendant, Bromley, and Clifford Jones on March 26, 1965, at the Beverly Wilshire Hotel in Los Angeles, California. The defendant further alleges that the Government sent Bromley to the law offices of the defendant's attorneys on June 2, 1965, to elicit information concerning the defendant's activities. All of the above activities occurred at a time when the defendant was represented by retained counsel but prior to the return of the indictment.
Out of the presence of the jury and prior to hearing the testimony of Bromley, the defense was given the opportunity of a hearing in open Court on these motions. Bromley was called as a witness by the defense and testified, in substance, that he has known the defendant since 1944; that they met when both served as pages at the Capitol; and their close friendship has continued.
The defense elicited an admission from Bromley that he had testified falsely before the grand jury in that when asked to identify the secretary's initials to a certain letter signed by him, he had stated that he put the initials G.A. on the letter for the purpose of having it appear that he had a secretary, whereas he had typed the letter himself. He admitted that this was false but said he did it to protect the secretary who wrote the letter for him since he did not wish to involve her in the investigation. He subsequently admitted to the grand jury the true facts.
Counsel then brought out that there came a time when Bromley decided to cooperate fully with the Government and told the full story of what was involved. This, he said, was on the advice of his retained counsel, Mr. Mark Sandground.
When these reasons were explained to Mr. Sandground, he said he would think the matter over and let Bromley know. Thereafter, he advised Bromley to put in a call to Jones and to have the call monitored by the Government. The purpose of this second call was to keep the record straight and to protect Bromley from any implication that he might have agreed to Jones' proposal, which was the denial that Jones had any information concerning the First Western Financial Corporation agreement between Jones, Bromley, and the defendant, which resulted in the payment by First Western to Baker of approximately $14,000 on invoices bearing Bromley's name, which would result in checks by First Western being made out to Bromley, which would then be cashed and the proceeds given to Baker.
During the monitored telephone conversation, they agreed upon the importance of meeting to discuss these matters among themselves and with the defendant Baker. Jones agreed to pay Bromley's expenses if such a meeting could be arranged.
Thereafter, on March 25, 1965, Bromley called Baker and arranged for the three of them to meet in Los Angeles, California. This call was also monitored.
The following day, March 26, 1965, the three men met in the Beverly Wilshire Hotel, and as a result of the advice of his counsel, Bromley consented to the placing on his person of an electronic transmitting device. The device malfunctioned and the recording of the conversation of this meeting, which the Government produced pursuant to the Court's order respecting the defense pretrial motion to produce under Rule 16(a), F.R. Crim. P., is fragmentary and of little evidentiary value.
Thereafter, the defense made a proffer of certain other statements by Bromley to various Federal investigative agents which were admittedly false. In summary, these false statements represented efforts by Bromley to protect the defendant, or at least to play down the significance and extent of certain dealings he had with the defendant. More particularly, the proffer concerned the receipt and division of a check from the Redwood National Bank; that Bromley had never had any business dealings with the defendant Baker and that Bromley owned no M.G.I.C. stock; that Bromley had no knowledge of Baker's financial or business dealings; that the only financial dealings Bromley had had with Baker was when he and his mother lent Baker $1,150 and that the money had been repaid. The defense emphasized that such statements by ...