The opinion of the court was delivered by: WALSH
LEONARD P. WALSH, District Judge.
This matter came before the Court pursuant to the order of remand of the United States Court of Appeals for the District of Columbia Circuit (App. No. 23,957), 142 U.S. App. D.C. 132, 439 F.2d 642, dated January 29, 1971, to conduct further proceedings, which were held on March 11, 29, 30 and April 5 and 6, 1971.
After careful consideration of all the testimony elicited at the remand hearing pertaining to (1) any suggestion of possible bad faith on the part of the government agents in their failure to preserve the tapes in question, (2) further inquiry into the regular procedures followed by the Bureau of Narcotics and Dangerous Drugs with respect to preservation of such tapes, (3) any efforts made at the time to preserve such tapes, and (4) further evidence as to the actions of all agents who might have had contact with the tapes, when viewed along with the importance of the evidence lost, and the uncontroverted evidence of guilt adduced at trial, leads this Court to conclude that the actions of the government agents did not demonstrate the bad faith which would warrant dismissal of the indictment.
It is this Court's conclusion that the ends of justice will best be served by affirmance of the indictment in this case. The following factors support this Court's decision:
2. The primary purpose of Agents Warden and Wiser's presence at this location was to survey the activities of Agent Pope [at 9].
Such a surveillance was necessary for the protection of Agent Pope as he was carrying a large sum of government funds with which he was to make a narcotics transaction [at 116]. Such was in planning for some four months and expected to be quite large. Further, it was made clear at the trial that the persons with whom Agent Pope was dealing were known to be "big" narcotic dealers [see this Court's Order of February 6, 1970] and known to carry weapons [at 15], and thus quite dangerous. There "has been a trend of increasing assaults against police officers and undercover officers even when their identity became known as an undercover officer, and an extra measure had to be taken to protect the officers." [at 115].
Further Agent Warden had discussed what measures could be taken to protect Agent Pope with Agent Walter Morris, who was in charge of the Washington Field Office of the Bureau of Narcotics and Dangerous Drugs at the time. He received specific instructions from Agent Morris that "surveillance for the safety of Agent Pope was paramount,". [at 121].
3. To accomplish this surveillance, a hole was bored in the wall between the two rooms [at 9], into which a plastic tube was placed with a small microphone at the end. [at 10]. This then was plugged into a tape recorder [at 10], along with a set of earphones, through which the actual surveillance was accomplished. The recorder was such that to hear conversations through the microphone, it had to be placed in the "record mode". [at 12]. The only reason for placing a tape in the machine was to prevent the reels from just spinning [at 13], which would give a noisy effect. [at 14].
4. Only one side of one tape was used during the entire surveillance, which began the evening of January 30 and continued through January 31, past midnight. [at 18].
5. At the conclusion of the operation, the tape was placed in the desk of Agent Warden, back at Bureau Headquarters. [at 19].
6. On two occasions, Monday, February 3, 1969, and a few days later, the tape was played in Agent Warden's office. [at 19]. There were a number of agents present on each occasion, including Agent Warden [at 69], Agent Morris [at 118] and Officer Busch [at 137]. Although Agent Warden did testify he would hear the conversation through the monitoring devices contemporaneously with the actual unfolding of the transaction in the adjoining room, he could not hear it when he replayed the tape. In fact on both of these occasions the tape was garbled and completely unintelligible [Trial Transcript at 32, 33, 38, 39; Remand Transcription at 20, 106, 118], and nothing of substance could be ascertained.