The opinion of the court was delivered by: JONES
In 1964 defendant, after a trial by the Court and jury, was convicted of federal income tax violations. His conviction was affirmed by the United States Court of Appeals for the District of Columbia Circuit in November 1965. Black v. United States, 122 U.S. App. D.C. 347, 353 F.2d 885. On May 2, 1966 the Supreme Court denied certiorari. 384 U.S. 927, 86 S. Ct. 1444, 16 L. Ed. 2d 530. Prior to the filing of Black's petition for a rehearing, the Solicitor General filed a memorandum with the Supreme Court advising it that agents of the Federal Bureau of Investigation, in a matter unrelated to this tax case, conducted an electronic surveillance of Black's rooms in a Washington, D.C. hotel during a period extending from two months before until one month after the evidence in this case was presented to the Grand Jury. The memorandum stated that an investigation by the Department of Justice of this eavesdropping indicated that none of the evidence presented to the Grand Jury or used at Black's trial in this case was obtained, either directly or indirectly, from any improper source. The Solicitor General further stated that nothing was learned by Government trial counsel from the monitoring of defendant's discussions with his attorney which had any effect upon the presentation of the Government's case or the fairness of defendant's trial.
In a supplemental memorandum the Solicitor General stated to the Supreme Court that the recordings of the intercepted conversations had been erased from the tapes but that there were available notes summarizing and sometimes quoting the conversations as well as reports and memoranda concerning them. A suggestion made by the Solicitor General was that the Supreme Court could issue a writ of certiorari, vacate the judgment and remand the case to this Court for further proceedings "in which the relevant materials would be produced and the court would determine, upon an adversary hearing, whether petitioner's conviction should stand."
The Supreme Court did not accept the Solicitor General's suggestion but instead remanded this case for a new trial and in doing so stated, 385 U.S. 26, at 29, 87 S. Ct. 190, 17 L. Ed. 2d 26:
This will give the parties an opportunity to present the relevant evidence and permit the trial judge to decide the questions involved. It will also permit the removal of any doubt as to Black's receiving a fair trial with full consideration being given to the new evidence reported to us by the Solicitor General.
Upon remand defendant has filed motions for discovery, to suppress evidence, for a bill of particulars and to dismiss the indictments. The Government voluntarily made available to defendant certain materials, including the notes summarizing and sometimes quoting the conversations intercepted through the electronic eavesdropping of Black's rooms in the Sheraton-Carlton Hotel, Washington, D.C. Those notes are known here as surveillance logs and have been received in evidence as defendant's exhibits 2, 2a, 2b.
Since all of the information obtained either directly or indirectly from the monitored conversations was to be found in the Headquarters' file, I directed Government counsel to make those files available to the Court for an in camera inspection. Only through such an inspection could this Court decide whether any of the information collected related to issues in this case. Black v. United States, 385 U.S. 26, 29, 17 L. Ed. 2d 26, 87 S. Ct. 190. See also Kolod v. United States, 390 U.S. 136, 19 L. Ed. 2d 962, 88 S. Ct. 752 (decided January 29, 1968).
Pursuant to this Court's direction, the Government has made available the Headquarters' file. It is found in Government's exhibits 46a through 46p, as marked for identification. I have, in chambers, read the file in its entirety and I have concluded that certain material found therein is to be made available to the defendant. That material I have indicated in blue pencil; it is to be reproduced by Government counsel and in open court turned over to defendant's counsel. It will be found in the following exhibits [not reproduced herein] at the pages noted.
46b - 19, 27, 39, 82, 83;
46c - 1, 2, 13, 14, 15, 25, 32, 58, 65, 87, 88, 89, 134, 149, 175, 176, 177, 189, 208, 218;
46d - 5, 7, 17, 57, 218, 219, 226;
46e - 118, 135, 150, 151, 152, 153, 154, 156, 249, ...