The opinion of the court was delivered by: GESELL
This is a perjury case based on allegedly false statements made before a grand jury in this jurisdiction. Defendant has moved to suppress evidence of certain of his telephone calls and other private conversations that were admittedly intercepted by the Government through various means and under circumstances later to be described. After a full evidentiary hearing on the motion, briefs were exchanged and the issues were argued to the Court. The Court has concluded that the motion to suppress must be granted. The factual background that follows is essential to a consideration of the applicable authorities.
The facts in this case are not unduly complex. There were three persons whose conversations were monitored by the Government: defendant Jones, Wayne Bromley, and Robert G. Baker. All three were attorneys-at-law. The defendant lived in Las Vegas, Nevada, and the other two men lived in Washington, D.C. They were all well acquainted with each other and had had some business dealings with each other.
Sandground immediately met with William O. Bittman and Donald P. Moore, the Government attorneys, in order to postpone Bromley's appearance so that he would have time to determine the extent and nature of the difficulties his client faced and to decide what measures should be taken. The requested postponement was granted. Bittman and Moore, in a series of meetings with Sandground, thereafter discussed possible charges against Bromley. They made it clear that Bromley faced charges of income tax evasion and perjury before the grand jury as well as charges arisen out of the whole "Bobby Baker matter." The Government attorneys emphasized the seriousness of these matters and revealed information to suggest the thoroughness of their investigation to date.
Moore and Bittman also told Sandground, who in turn told Bromley, that although they had sufficient evidence against Baker to indict him for tax evasion, they needed help in other Baker matters. It was indicated that Bromley's "cooperation" would be "appreciated" by the Government. Sandground got the message. He considered Bromley a likely defendant and saw "impending disaster" for his client. Sandground advised Bromley that he was in extreme difficulty, that he was a likely candidate for indictment, and that the best course for him to follow was to cooperate fully with the Government attorneys in the hope of some leniency along the way. Bromley decided to do this and thereafter he and Sandground talked with the prosecution six days a week and often twice a day in different places. These meetings were at Sandground's home, at his office, and at the Department of Justice. At these and subsequent meetings between the Government lawyers and Bromley, no promise was ever made that if Bromley gave evidence against Baker he would not be prosecuted. When immunity was requested for Bromley it was not granted. But it is a fact that Bromley cooperated and that he was never indicted.
On February 23, after numerous meetings with the Government attorneys, Bromley appeared a second time before the grand jury, repudiated his previous testimony, and told what the Government now describes as the "truth." Part of Bromley's story was that Jones knew that Bromley received money from First Western Financial Corp., which he passed on to Baker, keeping none for himself, i.e., he was a conduit for Baker. Later, on March 17, Jones appeared before the grand jury in response to a subpoena duces tecum. He was questioned on a wide variety of matters, including his relationship with Bromley and Baker. During this questioning Jones denied having caused the issuance of checks of First Western Financial Corp. to Bromley as a conduit to Baker. Jones, an officer of First Western, said he knew Bromley as a lobbyist retained by First Western and understood money was to go directly to Bromley for lobbying fees and that part was intended for politicians who could be helpful. None of the money was to go to Baker.
Acceptance of Bromley's contrary version of the conduit facts was very important to him. The payments to Bromley created income tax evasion problems for him unless he could show to the satisfaction of the Government that all the money was intended for someone else and just passed through him as a conduit. In short, to minimize the threat of possible indictment, he had to prove that he was now reliable and that Jones' version was false.
This call was not monitored by anyone. Although Bromley's recollection is vague, it appears that Jones related to Bromley in more detail the questions and answers that came up before the grand jury. Jones did not know Bromley had been before the grand jury in February and Bromley did not tell him. Significantly, Bromley did not disagree with the version of the payments which Jones said he had given in his testimony before the grand jury. When their conversation ended, neither party apparently expected the other to call back.
Bromley immediately telephoned Sandground and told him that he had had a telephone call from Jones. Sandground apparently felt from information given him by Bromley that Bromley believed Jones was trying to influence Bromley to tell a false story. Indeed, Bromley may have so characterized the call. In any event, Sandground relayed this impression to the Government attorneys. None of the witnesses, other than Jones, could give a detailed account of this call and Jones' account does not support the impressions Sandground got from Bromley.
After Sandground reported the incident to Bittman and Moore, the latter checked with his immediate superior and then suggested Bromley make a return call to Jones which the Government would monitor. There had been prior conversations concerning monitoring between Sandground and the Government attorneys but this was the first time the Government attorneys decided to follow this dangerous course. The Government attorneys already "believed Bromley absolutely," felt he "could be trusted," and "was on the level" - they accordingly felt justified in using him in an attempt to incriminate Jones as well as to discover if Jones was attempting to obstruct justice and to confirm Bromley's reliability as an informer.
The Court repeatedly pressed for an explanation of the reason for the immediate reaction to Jones' call both by Bromley and the prosecutors. None was obtained. Both Jones and Bromley had testified. Bromley must obviously have been prepared to stick by his version because he reported the call from Jones. He was not in physical danger. Jones had no leverage over him. Bromley cannot explain why he did not disagree with Jones when he heard Jones' version of the transactions. Jones was not a suspect in the Baker inquiry but he had been a perjury suspect in the eyes of the Government from the date of his testimony. Under all these circumstances it cannot be doubted that the Government's primary interest in conducting the subsequent surveillance of conversations between Jones and Bromley was to obtain corroboration of perjury. Indeed, this is not seriously contested by the Government.
Before the conversation started, one of the Government attorneys told Bromley to say to Jones that he had not been before the grand jury. This was wholly false. Bromley did so and continually asked for Jones' guidance as to what he, Bromley, should tell the grand jury. Bromley was persistent in his lying attempts to make Jones incriminate himself, as the following excerpts from the transcript of the interception show:
Mr. Bromley: I said you know -
Mr. Bromley: - how it was supposed to have been handled, because - Look, as I told you earlier, I haven't actually been before the Grand Jury and I am wondering what I am going to say, if I am called.
Mr. Jones: That is right.
Mr. Bromley: I am getting right disturbed about it, because I ...