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November 17, 1958

Thomas McKEEVER and Lawrence M. Morrison, Defendants

The opinion of the court was delivered by: HERLANDS

The two defendants, Thomas McKeever and Lawrence Morrison, now on trial, have been indicted under Title 18, U.S.C.A. § 1951, the Hobbs Anti-Racketeering Act. The charge is that the defendants conspired to commit extortion (Count 1) and that they actually committed forty-two acts of extortion (Counts 2-43).

The alleged victim named in the indictment is James J. Ball & Sons, Inc., a corporation that had a union contract with Local 205 of the International Longshoremen's Association. The defendants are agents of Local 205. Two of the principals of the Ball company are Jack Ball and George Ball.

 After January 23, 1958, when the indictment was filed, the defendant McKeever, still functioning as a business agent of Local 205, continued to have fairly frequent contacts with the Balls; and he had a number of conversations with them. The imminent possibility that the Balls would be key prosecution witnesses was foreshadowed by the fact that the name of the Ball company was included in the indictment itself. At least two of the conversations between McKeever and the Balls -- one with Jack Ball and one with George Ball -- were tape-recorded by the defendant McKeever or by persons acting in his behalf.

 The specific question now before the Court concerns the tape recording of an alleged conversation between George Ball (who is now on the stand) and the defendant McKeever, and the conditions governing the defendants' use of that recording for the purpose of impeaching George Ball, by showing a prior inconsistent statement. This question has arisen in the course of George Ball's cross-examination.

 Because the problem posed is important not only to the trial of this particular case but also to the general administration of criminal justice, it is desirable to detail the facts and to consider somewhat comprehensively the controlling legal principles.

 The bald recital of the facts -- that prosecution witnesses, the named alleged victims in an extortion case, have been interviewed by the defendant himself after indictment and their conversations tape-recorded by the defendant for use on the trial -- immediately suggests a prevision of the potential impact of that defense technique.

 When first examined, the witness testified that he did not recall any particular conversation with the defendant McKeever in which there was a reference to the witness' testimony in this case. The defense was then permitted to have the witness listen, by means of earphones, to a playing of a tape-recording. This was done in open court in the jury's presence. The contents of the tape-recording were not permitted by the Court to be heard by the jury, because the recording was then being used solely to refresh the witness' recollection.

 The Court also ruled that, for purposes of refreshing the witness' recollection, it was not incumbent upon the defense to establish the authenticity or accuracy of the tape recording. In so ruling, the Court simply recognized the rule that anything can be used to revive a witness' memory even, for example, a false statement. See Judge Learned Hand's analysis in United States v. Rappy, 2 Cir., 1947, 157 F.2d 964, certiorari denied 329 U.S. 806, 67 S. Ct. 501, 91 L. Ed. 688.

 The witness next testified that his recollection was refreshed by the recording; and that he recalled 'that conversation' with defendant McKeever. He then proceeded to state that his trial testimony concerning a certain luncheon discussion at the Meurot Club was the same as the statement on the same subject he had made to defendant McKeever during the conversation apparently tape-recorded.

 The defendants now claim that there is an inconsistency between the witness' trial testimony about the Meurot Club discussion and the recorded statement of the witness on the same subject to the defendant McKeever. The defendants seek to play part of the tape-recording before the jury in order to confront the witness with his alleged prior inconsistent statement, and thus to impeach his credibility.

 The defendants take the position that they are not required to lay any further foundation for the proffered proof -- the tape-recording of the alleged prior inconsistent statement -- because the witness has testified that he 'recalled that conversation.' The defendants claim that they are not required to offer any proof (before the trial judge at a preliminary hearing or voir dire outside the jury's presence) as to how, when, where or by what mechanism the taped recording was made or as to the accuracy or completeness of the taped recording now produced in court.

 In the voir dire thus far conducted by the court, the witness George Ball has testified that since November 1957 he had had fairly frequent contact with the defendant McKeever and that he had had a number of conversations with McKeever. In that voir dire examination, the witness, having listened to the taped recording, stated: (1) that he recognized the defendant McKeever's voice and also the witness' brother's voice in the background; (2) that he remembered speaking to the said defendant at a time when the defendant said some of the things that are recorded; (3) and that he remembered that the conversation took place right next to the witness' desk.

 On the other hand, (1) the witness was unable to recognize his own voice on the recording; (2) he could not recall how the defendant McKeever was dressed on the occasion of the conversation or whether McKeever was alone or with someone else at the time or whether McKeever walked away from the desk at any time while talking or whether the witness remained at his desk throughout the conversation or whether McKeever was carrying anything at the time; and (3) he was not able to recall ...

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