The opinion of the court was delivered by: GASCH
On or about October 10, 1975, the Court received an Order of the United States Court of Appeals to the effect that Mr. Seymour Pollack's motion in that Court for remand to this Court to consider Mr. Pollack's motion for new trial was denied without prejudice to Mr. Pollack's opportunity to make such a motion in this Court. Under the doctrine of Smith v. Pollin, 90 U.S.App.D.C. 178, 194 F.2d 349 (1952), this Court proceeded to hear such evidence as Mr. Pollack sought to produce subject to limitations of materiality and relevance. Due to the fact that Mr. Pollack, although represented by Mr. Warren Magee, his retained trial counsel,
insisted upon representing himself, the hearing on his motion for new trial became protracted. Hearings were held on the following days: October 10, November 7, 13, 17, 18, 20, 25 and 26; December 9, 10, 11, 19 and 22, 1975; January 9, 12, 13 and 22; February 2, 3, 4, 5, 6, 1976.
The following principal contentions emerged from Mr. Pollack's presentation: that the government relied upon evidence stolen from Mr. Pollack in violation of his constitutional rights; that he was denied Jencks material; and that he was denied Brady material. From the evidence adduced, the Court makes the following
1. In November, 1969, Mr. Pollack surrendered himself in California to commence service of a sentence imposed by a state court on the charge of fraud. Prior to this, he maintained an office in the 1000 block of Connecticut Avenue. This office he shared with Robert G. (Bobby) Baker. One Georgia Liakakis served as secretary to these men. In January, 1971, Mr. Baker commenced the service of a sentence in the Federal penitentiary at Lewisburg, Pennsylvania. Miss Liakakis was directed by Mr. Pollack to close the Connecticut Avenue office and to take charge of certain files which had been kept there. She was assisted in this project by Mr. Joseph Gold, also a former employee of Mr. Pollack, and a witness both at the trial and the hearing.
2. Miss Liakakis not only served as Mr. Pollack's secretary and bookkeeper but acted as an officer of International Marketing Corporation and of Fountainhead International, two of Mr. Pollack's corporations. Miss Liakakis was called as a witness by Mr. Pollack, but on the advice of her counsel, invoked her Fifth Amendment privilege not to testify. She was not a witness at the trial of this case, but she was called to testify in a criminal proceeding pending in the District of New Jersey in which Mr. Pollack is also a defendant. It was represented that her testimony in that case was contrary to sworn statements she had given the government.
Miss Liakakis retained possession of Mr. Pollack's files after they were removed from Mr. Pollack's office. They were maintained either at her apartment or at Mr. Baker's residence where she also went from time to time because of her employment as secretary by Mr. Baker. Neither Mr. Baker nor others at his residence knew that any of Mr. Pollack's files had been taken to the Baker residence.
Sometime after the removal of Mr. Pollack's files from his Connecticut Avenue office and while they were in the possession of Miss Liakakis, she was visited by an Internal Revenue agent, Frank Cox, who questioned her about the contents of the files and who subsequently was permitted to remove the files for examination. Before returning the files to her, he caused them to be microfilmed. She also made them available to a Congressional committee then investigating organized crime.
Although it was the contention of Mr. Pollack that Miss Liakakis was a government agent, or paid informer, as he characterized it, there is no credible evidence of this. At best, it was shown that she had an interest in cooperating with the government for the reason that she had not filed an income tax return and following this cooperation, she was not subjected to prosecution. There is no showing whatsoever that she was ever paid for her services in making these documents available to the government. She was not a witness at trial. She was not paid by the government nor was an informant file kept on her.
3. Completely independent of efforts by a Congressional committee on organized crime to review the contents of Mr. Pollack's files and efforts on the part of agent Cox of Internal Revenue to study them, the Denver Regional office of the Securities and Exchange Commission (SEC) initiated efforts to investigate the sale and/or distribution of certain stock known as Control Metals stock, one of the principal assets of which was said to be an onyx mine located near Phoenix, Arizona. Mr. John Kelly of the Denver Regional Office of the SEC was called by Mr. Pollack as a witness at these hearings. It was his testimony, and the Court finds, that the government had an independent source for the documents it introduced at trial, namely, the records of various transfer agents for this stock, records of brokers, banks, and corporations, etc., land records at Phoenix, Arizona, and the files of Thayer C. Lindauer, counsel for Control Metals, Inc. Mr. Kelly gave detailed information concerning the government's awareness of each of the government's pre-marked trial exhibits prior to the criminal reference by the SEC to the Department of Justice in November, 1971. He stated that most of the government's evidence was accumulated during the SEC investigation in 1969. This testimony was corroborated by Mr. Ogren, the prosecutor who also was called as a witness by Mr. Pollack in the hearing on this motion. The Court credits and accepts the testimony of these witnesses.
4. Defendant's trial commenced in this Court on or about November 19, 1973. On or about January 4, 1973, the government, with a subpoena, took possession of some, but not all, of Mr. Pollack's files then in the possession of Miss Liakakis. This was subsequent to the accumulation of the documents obtained by Mr. Kelly of the Denver Regional Office of the SEC, which documents were used by the government in trial. The documents subpoenaed from Miss Liakakis were not used by the government at trial nor did they lead to evidence used at trial.
5. Miss Liakakis maintained possession, either actual or constructive, of the documents of Mr. Pollack and those pertaining to corporations controlled by him until they were turned over to the government on January 4, 1973, pursuant to a Grand Jury subpoena. At no time did Robert G. Baker have custody, possession, or control of these documents nor did he know where they were alleged to have been until told by Mr. Pollack. There is no credible evidence that any of these documents were taken by the government or any agent of the government from Mr. Baker's residence.
6. On June 25, 1973, Mr. Sachs was arraigned, and the following day, Mr. Pollack was arraigned. At a pretrial conference on July 6, 1973, defendants were given 30 days within which to file motions, and the government 10 days within which to file its opposition. Various defense motions, including those for discovery, for bill of particulars, and for production of Grand Jury testimony, were heard on September 26th. On October 2nd, defense motions were denied and a pretrial conference was set for November 2nd. In denying defendant's motion for discovery and for bill of particulars, the Court followed its usual practice of telling the government to make discoverable materials available to the defense. This the government agreed to do. Mr. Karl Feissner, counsel for Mr. Sachs, did engage in extensive discovery and the copying of materials made available to him, as his precipice in part reflect. Although reminded of the opportunity for discovery, neither Mr. Pollack nor his counsel, except on a few occasions, took advantage of this opportunity.
7. Among motions filed by counsel for Mr. Pollack was a motion for the production of tapes or transcriptions of electronic surveillance. The government denied that it had subjected Mr. Pollack to any electronic surveillance but said that if there were any such tapes, they were made by Mr. Pollack himself. It subsequently developed that in the materials taken from Miss Liakakis there were a number of tapes which have been produced in this Court together with the transcriptions of the same. It appears from the testimony of Mr. Pollack himself that it was his practice to record certain telephone conversations, as well as other conversations and that he had a specially designed briefcase which contained electronic recording equipment. There is no showing that any of this material had any relevance to the issues before the Court for trial, with one exception.