The opinion of the court was delivered by: GESELL
This indictment, returned May 9, 1973, names three defendants and is in 21 counts. It charges a conspiracy to obstruct justice, and 20 counts of perjury.
The Court ordered far-reaching discovery for defendants and now, after receiving briefs and hearing argument, various pretrial motions are before it for decision. The motions include demands for bills of particulars and further discovery, severance, motions to suppress certain surveillance tapes on constitutional and other grounds and motions to dismiss various charges. Since the motions to suppress go to the heart of the case, they will be dealt with first.
Defendants Kline and Baer confront what the Government claims are crucially incriminating tapes of a private conversation they had at Kline's penthouse office, while the SEC investigation was in progress, with a Government informer equipped with electronic recording and broadcasting devices provided by the Federal Bureau of Investigation (F.B.I.). They contend the tapes and their fruits should be suppressed because their words were seized in violation of their rights under the Fourth, Fifth and Sixth Amendments.
It is now conclusively established that the Fourth Amendment is not violated where, during an investigation, a Government agent consents to record his private conversation with others who are suspect without revealing his true identity or purpose. United States v. White, 401 U.S. 745, 91 S. Ct. 1122, 28 L. Ed. 2d 453 (1971); United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied, 402 U.S. 950, 91 S. Ct. 1613, 29 L. Ed. 2d 120 (1971); 18 U.S.C. § 2511(2)(c) and (2)(d).
This principle, laboriously and somewhat hesitantly fashioned in the give-and-take of many decisions involving covert overhearing, has practical consequences. Informers, in return for Government promises or hope of favors, are equipped with recording devices and sent into the homes and offices of their friends and confidants to trap their words on tape and to turn incriminating evidence over to law enforcement agents. Many individuals, without any knowledge of the Government, secretly tape their own provocative conversations with others for ulterior purposes and use casual remarks to extort or intimidate. This kind of conduct is now routine, as any experienced trial judge knows, and it continues to proliferate without judicial supervision.
The implications of this ill-conceived doctrine are enlarged as skills in fashioning types of electronic overhearing are perfected. Highly accurate and sensitive devices are available. Conversations with the informer can be heard by the Government through walls and even at some distance away, while Government agents and others sit concealed and unobserved. In this instance, the informer was apparently expected to have a lengthy conversation. The equipment carried on the informer's body was not capable of running for the expected duration of the talk. Thus, with his consent, he was also wired to a broadcasting device, and the entire conversation was broadcast to an F.B.I. car in the street outside where it was immediately also recorded and permanently captured for Government use. Electronic gadgetry thus pushes the rationale of the cases to extreme. A Government agent can plant a broadcasting transmitter in a person's home, car or office without Court approval and transmit conversation of a consenting informer so long as the informer's presence is known and accepted by the other occupants, even though they are completely unaware of and indeed affirmatively misled as to the informer's purpose.
Presumably, because the case law is settled in favor of the constitutionality of consensual overhearings such as those involved in this case, defendants urge some of the factors mentioned immediately above and appeal to the Court's supervisory powers. This Circuit has flatly rejected the application of this trial court's supervisory authority in another equally serious consensual overhearing perjury case, noting that the hunter, i.e., the prosecutor, should be permitted to pursue the tactics of the hunted, particularly where the hunted is sophisticated, a circumstance that apparently is deemed relevant in the trial court's attempt to regulate prosecutorial conduct. United States v. Jones, 140 U.S.App.D.C. 70, 433 F.2d 1176 (1970), cert. denied 402 U.S. 950, 91 S. Ct. 1613, 29 L. Ed. 2d 120 (1971), rev'g 292 F. Supp. 1001 (D.D.C.1968).
This determination must be accepted as the law governing this case. The suggestion that the law is otherwise, or that another attempt should be made to make it otherwise by use of the Court's supervisory powers, will not be entertained. The consensual overhearing in this case does not violate any provision of the Constitution or any statute. The Court has been denied the power to exercise supervisory powers. Only legislation requiring a warrant in these types of cases can correct the growing intrusions of privacy so central to the Bill of Rights.
Defendants press further and contend that the overhearing was accomplished in violation of the Attorney General's own rules and urge that this circumstance alone justifies suppression.
The facts submitted through affidavit by the Government show that the Attorney General issued internal guidelines to the United States Attorneys, the F.B.I., and other agencies, designed to provide some degree of internal governmental supervision over consensual overhearings sponsored by the Federal Government. These guidelines are not public and no citizen, including defendants, can claim reliance on them. The affidavits show the guidelines were followed in spirit, but not precisely, due to exigent circumstances. The F.B.I. was given emergency power to intercept in this instance on the afternoon before the President's inauguration by a representative of the Attorney General in the Attorney General's absence. Documents show that various legal and other safeguarding steps were being taken in consultation with the U.S. Attorney, all as contemplated by the guidelines. The fact that the procedures were not in precise conformity with those anticipated under the guidelines does not give cause to suppress. The guidelines do not have the force or effect of law and while a court might intervene to protect against a ...