The opinion of the court was delivered by: MCLEAN
Defendants have been indicted for endeavoring to influence a government witness and for obstructing the due administration of justice, in violation of 18 U.S.C. § 1503, and for conspiracy to do so, and to suborn perjury, in violation of 18 U.S.C. § 371. Defendants now move, pursuant to Rule 41(e) of the Federal Rules of Criminal Procedure, to suppress certain recordings of conversations between defendant Kahn and the witness, Charles Hedges, and "all evidence pertinent thereto." I held a hearing and took testimony on this motion. The facts developed at this hearing are as follows:
In January 1961, Hedges was indicted in the United States District Court for the District of Connecticut for violation of the narcotics laws. He was tried from February 15 to March 21, 1961. He was convicted and sentenced to imprisonment for fifteen years and to pay a fine of $10,000. Defendant Kahn, an attorney, represented Hedges in that trial.
The District Court in Connecticut fixed Hedges' bail pending appeal in the sum of $50,000. He was unable to make that bail and consequently he was imprisoned in the Federal Penitentiary in Lewisburg, Pa. In late June 1962 he was transferred from Lewisburg to the Federal House of Detention on West Street, New York City. At that time he informed the United States Attorney of this district that he desired to "cooperate" with the government. Just what form this "cooperation" took and what information he gave to the United States Attorney at that time was not brought out at the hearing.
In July 1962 Hedges was transferred from West Street to the Westchester County Jail in Valhalla, New York, a New York State penal institution. He was there as a federal prisoner pursuant to some arrangement between the federal and the state authorities. He remained there approximately one month. In July 1962 defendant Kahn, as Hedges' attorney and at his request, moved for a reduction of bail. The District Court in Connecticut reduced it to $25,000. Hedges posted that bail and was thereupon released from prison in August 1962.
On December 11, 1962, Hedges was involved in a shooting incident, the details of which were not explained. Apparently he exchanged shots with somebody and as a result of this gunplay, he was wounded. He was sent for treatment to Kings County Hospital for a time and in January 1963, after he had recovered from his wound, he was sent back to Westchester County Jail. A state charge of violation of the Sullivan law was filed against him. This charge has never been disposed of.
Hedges took an appeal from his narcotics conviction. Defendant Kahn prosecuted the appeal as his attorney. The Court of Appeals affirmed his conviction in March 1963.
He did not apply for certiorari. Instead he applied to the District Court in Connecticut for a reduction of sentence. Defendant Kahn made this motion on his behalf. In May 1963, the District Court in Connecticut reduced his sentence from fifteen to five years. Hedges served the remainder of this sentence in the Westchester County Jail. He was released in May 1965.
Defendant Kahn visited Hedges frequently at the Westchester County Jail. The record shows that she made 37 visits to him there between January 1963 and May 1965. At least eleven of these visits were made in the year 1964. The visitors' slips and other records maintained by the prison authorities with respect to visitors, describe defendant Kahn as Hedges' "attorney."
The interviews between defendant Kahn and Hedges usually took place in the sheriff's office. This was the customary place for interviews between prisoners and female attorneys who, according to the deputy warden, are not allowed to go "back on the floor."
On September 20, 1963, a judge of the County Court, Westchester County, made an order, pursuant to the New York statute (Code of Criminal Procedure, § 813-a) upon the application of the Acting District Attorney of Westchester County, authorizing the Acting District Attorney "or his duly authorized agents," to eavesdrop upon the personal conversations of Charles Hedges and to "install such electronic equipment as may be necessary to assure the eavesdropping, overhearing and recording of the said conversations." The order provided that it should be effective until November 20, 1963. As far as appears, no subsequent order was obtained.
Also on September 20, 1963, Hedges made an affidavit in which he swore that defendant Kahn had made certain statements to him, including a statement that defendant Pacelli had said that he would take care of all the expenses of Hedges' family and that he would see that Hedges had nothing to worry about if Hedges did not testify. Hedges further said in his affidavit:
"That I wish to cooperate with the Federal authorities to assist them in obtaining evidence against the suspects in this case. I make this offer for that purpose and consent that any and all future conversations between myself and Mrs. Kahn may be intercepted and put to use by the Federal Government for whatever purpose it deems fit."
This affidavit was delivered to the Acting District Attorney of Westchester County but it was not made part of the application for the eavesdropping order.
In October 1963, a federal narcotics agent installed electronic eavesdropping equipment in the Westchester County Jail. He concealed a transmitter under a desk in the sheriff's office and a receiver, together with recording equipment, in a nearby room. A similar transmitter was given to Hedges, who affixed it to his person. An interview took place between defendant Kahn and Hedges in the sheriff's office on October 6, 1963. Federal agents eavesdropped upon this conversation by use of the electronic equipment and made a record of it.* The eavesdropping equipment was removed by the federal agents at the end of the day on October 6.
In September 1964, federal agents again installed eavesdropping equipment in the sheriff's office. Two conversations between defendant Kahn and Hedges were overheard and recorded by federal agents, one on September 27, 1964, and the other on October 13, 1964. Shortly thereafter the equipment was removed.
The federal agent in charge of this investigation testified that federal officers did no eavesdropping on conversations between defendant Kahn and Hedges in the sheriff's office except on the four occasions when recordings were made.
In December 1963 a state officer, a deputy sheriff, installed electronic eavesdropping equipment in another room in the jail, the assistant warden's office. Apparently this was done on the expectation that conversations between defendant Kahn and Hedges would take place in that room. However, these expectations were not fulfilled. The deputy sheriff listened in on this equipment some five or six times in December 1963. On some of these occasions a federal officer also listened with him. They heard no conversations between defendant Kahn and Hedges. Apparently defendant Kahn and ...