The opinion of the court was delivered by: GASCH
This case was remanded for further hearings on the defendant's motion to suppress fruits of concededly illegal eavesdropping devices. The remand deals with two separate aspects of the motion to suppress.
First, the Court of Appeals held that the defendant was entitled to inspect the records of all conversations intercepted through the device in the suite of Fred Black in the Sheraton Carlton Hotel in Washington, D.C. At the pretrial hearing, the defendant had received those logs reflecting his own conversations and those of unknown conversants. The Court of Appeals also permitted the defendant to examine those logs from the devices placed in the offices of Benjamin Sigelbaum in Miami, Florida, and Edward Levinson in Las Vegas, Nevada, which reported conversations with unknown conversants. All such logs have been provided to the defendant.
Second, the Court of Appeals remanded for further consideration the question of whether the monitoring of the telephone call from Baker to Levinson reported in the Las Vegas log on November 1, 1962, tainted the cross-examination of the defendant as to his whereabouts on the weekend of November 2, 1962. If any taint were found, this Court was directed to determine whether it was prejudicial.
This Court held an evidentiary hearing during the week of December 16, 1968. Pursuant to defendant's motion, further testimony was adduced on April 16, 1969. Based on the opinion remanding the case, the record and the hearings held pursuant to the remand, the Court enters the following findings of fact and conclusions of law:
1. During the relevant period, the Grand Jury investigation concerning the Baker case was in the charge of three Department of Justice attorneys: William O. Bittman, Donald Page Moore, and Austin Mittler. The trial was conducted by Messrs. Bittman and Mittler. Two Internal Revenue Special Agents were assigned to the Baker case in the Fall of 1963: Joseph Rosetti and Donald Iverson; they remained on the case through the trial. The Federal Bureau of Investigation opened its case on October 3, 1963. The case agent in the Washington Field Office from that time until January, 1966, was Paul Kenneth Brown. Agent Brown made investigations as requested by the Department of Justice. These requests were normally in writing.
2. Mr. Bittman was not informed that the defendant's conversations had been picked up by eavesdropping devices until September or October of 1965. The information was supplied as the result of a written inquiry motivated in part by defendant's revelation of the Levinson eavesdropping device before the Senate Rules Committee.
3. The FBI informed Mr. Bittman of the Black, Levinson, and Sigelbaum devices and showed him the basic logs on these devices at FBI Headquarters. He did not make copies or notes. He did not review his Department of Justice files when he returned to his office, and he has no recollection of ever having seen any of the illegally obtained conversations in his prosecution files.
4. Prior to this remand hearing, the defendant had an opportunity to examine all the records of conversations from the Edward Levinson and Benjamin Sigelbaum surveillances in which one of the participants was unidentified.
5. The defendant, in pleadings filed prior to this hearing, selected from these materials four conversations monitored during the course of the Sigelbaum surveillance (on April 18, 1963, February 14 and 19, 1964, and May 20, 1965) and two conversations monitored during the course of the Levinson surveillance (on November 9, 1962, and December 10, 1962) as conversations in which he, the defendant, was the unidentified participant.
6. At the remand hearing the defendant testified that:
(a) He was not the unidentified person in the April 18, 1963, Sigelbaum log, and he was not the unidentified party in the November 9, 1962, Levinson log.
(b) He was the unidentified person in the May 20, 1965, Sigelbaum log.
(c) He might have been the unidentified person in the remaining conversations which he had ...