UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Bazelon, Chief Judge, Wilbur K. Miller, Senior Circuit Judge, and McGowan, Circuit Judge.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCGOWAN
The United States takes this appeal (18 U.S.C. § 3731) from the District Court's grant, after an evidentiary hearing, of a pretrial motion to suppress evidence. As its opinion indicates, United States v. Jones, 292 F. Supp. 1001 (D.D.C.1968), the District Court relied in the first instance upon its reading of Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967), as invalidating under the Fourth Amendment all monitoring of conversations which has not been either expressly consented to by the objecting party or approved in advance by judicial authority. Secondarily, it was said that, even if Katz be held inapplicable where the witness-party to the conversation himself consents to the monitoring, the purported consent of such party in this case was involuntary. Alternatively, and over and above these constitutional considerations, the court invoked its supervisory powers to rebuke what it regarded as overreaching by the Government "to import manufactured evidence into this case." For the reasons set forth hereinafter, we reverse. *fn1 I
The principals in this case came to the attention of the Government through their alleged involvement in what is commonly known as the "Bobby Baker Case." *fn2 Both appellee and Bromley, the prosecution witness central to the issues here involved, were known to have a long history of association with Baker. Consequently, both at various times were summoneo to testify before a District of Columbia grand jury which was looking into the Baker matter. Bromley appeared twice, once in October, 1964, and subsequently on February 23, 1965. Bromley was subpoenaed for the second appearance because the Government was suspicious of the veracity of his original testimony. Bromley, an attorney himself, as are appellee and Baker, was apprehensive of the Government's renewed interest in him, and, in anticipation of his second grand jury appearance, retained an experienced criminal lawyer, Mark Sandground, to advise him.
Sandground immediately requested and received a postponement of Bromley's appearance, and met a number of times with the Justice Department attorneys who were conducting the investigation -- Messrs. Moore and Bittman -- in an attempt to ascertain the nature of Bromley's difficulties. *fn3 This elicited a disturbing response to the effect that Bromley was in danger of being prosecuted on a number of possible charges; and Bromley, upon Sandground's advice and despite the refusal of the prosecutors to promise immunity or make similar bargains, determined to cooperate, as the District Court found, "in the hope of some leniency along the way." *fn4
Appellee was similarly a subject of the Government's interest. His name appeared with frequency in Baker's affairs, and he, too, was scheduled to testify before the "Baker Grand Jury." Appellee's testimony, given on March 17, 1965, conflicted with Bromley's. The latter had testified on his second appearance to receiving certain moneys from appellee as merely a conduit for their transmission to Baker. Appellee, contrarily, testified that the payments to Bromley represented legal fees for services rendered, and were for Bromley's account alone.
It was essential to Bromley that he show his version of the payments to be true, or he would be subject to liability for tax evasion. It was essential for the Government to show that appellee was aware of the falsity of his own grand jury statements in order to make out its perjury case. Appellee, knowing Bromley was scheduled to testify but apparently thinking that he had not appeared before the grand jury as yet, sought to transmit the nature of his own testimony to Bromley through the secretary of Fred Black, another Baker associate. This set in train the events which give rise to this appeal.
Appellee called Bromley on the night of March 12, 1965, following Bromley's representation to Black's secretary that he was "hurt" that appellee did not communicate with him directly. This call was not monitored, and Bromley's recollection of exactly what was said was hazy, although it appears that appellee did describe in detail the testimony given by him to the grand jury. Bromley immediately reported the call to Sandground, who concluded from Bromley's report that Bromley believed appellee was trying to influence him to tell a false story to the grand jury. In any event, Sandground promptly reported the incident in these terms to Moore and Bittman who saw in it the possibility that appellee, in addition to committing perjury, might be endeavoring to obstruct justice.
They now decided to ask Bromley, whom they had come to feel could be trusted, to participate in monitored conversations with appellee. They suggested a return call by Bromley to appellee, and arrangements were made with Bromley and Sandground to meet at Bromley's home later that night. Bromley, after consulting with Sandground, signed a written consent to the monitoring. Shortly after midnight, on the pretext of having been unable to talk freely earlier, Bromley called appellee, with a stenographer listening on an extension phone. During the course of this and later monitored conversations, Bromley actively encouraged, upon the prosecutor's instruction, appellee's mistaken impression that he (Bromley) had not yet testified before the grand jury, and invited guidance as to what his testimony should be. He did not challenge appellee's assertions as to the "right" representations to be made by Bromley to the grand jury.
In the following days further telephonic communications, relating chiefly to the arranging of a meeting in Los Angeles between appellee, Baker, and Bromley, were monitored with Bromley's written consent. *fn5 Bromley attended the Los Angeles meeting in a hotel suite with a Kel transmitter taped to his chest and with Government agents receiving and recording the transmission in neighboring hotel rooms. This was done with the express authorization of the Attorney General and Bromley's formal consent. *fn6
For purposes of the motion to suppress, it was understood that Bromley would testify for the prosecution at trial. The transcripts of the monitored conversations would be offered in evidence to support his testimony. II
The opinion of the District Court, relying primarily on Katz, was issued prior to Desist v. United States, 394 U.S. 244, 89 S. Ct. 1030, 22 L. Ed. 2d 248 (1969), in which the Supreme Court held that its decision in Katz was to be given wholly prospective application, that is to say, it would not bar evidence derived from electronic eavesdropping not involving a physical trespass and occurring before December 18, 1967. The eavesdropping here involved took place in 1965, some two years before Katz. The supervening ...