United States v. Baker

• Citation: 262 F. Supp. 657
• Decision Date: 20 December 1966
• Docket Number: Cr. No. 39-66.
• Parties: UNITED STATES of America v. Robert G. BAKER.
• Court: U.S. District Court — District of Columbia

262 F. Supp. 657

UNITED STATES of America v. Robert G. BAKER.

Cr. No. 39-66.

United States District Court District of Columbia.

December 20, 1966.

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William O. Bittman, Austin S. Mittler, Donald Page Moore, Department of Justice, Washington, D. C., for plaintiff.

Edward Bennett Williams and Peter R. Taft, Washington, D. C., and Boris Kostelanetz, New York City, admitted pro hac vice, for defendant.

MEMORANDUM OPINION

GASCH, District Judge.

On January 5, 1966, following a fifteen-month investigation, a Federal Grand Jury sitting in the District of Columbia returned a nine-count indictment against the defendant in the present case, Robert G. Baker. Counts 1 and 2 of that indictment charge the defendant with evasion of income tax for the years 1961 and 1962 in violation of 26 U.S.C. § 7201. Counts 3 and 4 alternatively charge the defendant with larceny and larceny after trust of $50,000 from one Stuart Davis in violation of 22 D.C. Code §§ 2201, 2203. Counts 5 and 6 charge the defendant with larceny and larceny after trust of $17,000 from John F. Marten in violation of 22 D.C.Code §§ 2201, 2203. Count 7 charges the defendant with the interstate transportation of stolen property, to wit, $33,000, allegedly obtained by fraud from Sidney M. Taper in violation of 18 U.S.C. § 2314. Counts 3 through 7 identify the cash in question as a portion of the defendant's unreported income during the year 1962, as charged in Count 2 of the indictment. Count 8 charges the defendant with aiding and assisting one Bromley in the preparation and filing of a false 1963 return in violation of 26 U.S.C. § 7206 (2). Count 9 charges the defendant conspired with Bromley and one Jones to conceal and misrepresent the existence, sources, and nature of large parts of his taxable income in violation of 18 U.S.C. § 371. In short, according to the indictment, the defendant is charged with a series of transactions which the Government contends are closely related, the ultimate purpose of which was to defraud the Government through the evasion of his income tax. On January 24, 1966, the defendant was arraigned and entered a plea of not guilty.

Subsequently, through counsel, the defendant filed nine pretrial motions, together with memoranda in support thereof. These motions are as follows: (1) motion for suppression of evidence pursuant to Rule 41(e), F.R.Crim.P.; (2) motion to dismiss the indictment, or in the alternative, for inspection of the grand jury minutes pursuant to Rule 12 and Rule 6(e), F.R.Crim.P.; (3) motion for production and inspection of the grand jury minutes pursuant to Rule 6 (e), F.R.Crim.P.; (4) motion for discovery and inspection pursuant to Rules 16 and 17(c), F.R.Crim.P.; (5) motion for bill of particulars pursuant to Rule 7(f), F.R.Crim.P.; (6) motion to dismiss Counts 3 through 7 of the indictment pursuant to Rule 12, F.R.Crim.P.; (7) motion to dismiss Count 8 of the indictment pursuant to Rule 12, F.R. Crim.P.; (8) motion to dismiss Count 9 of the indictment pursuant to Rule 12, F.R.Crim.P.; and (9) motion for severance of counts pursuant to Rules 8(a) and 14, F.R.Crim.P.

These motions were set for hearing on the 15th of November, 1966. Prior to that hearing, the Government filed a preliminary motion seeking to have the Court inspect, in camera, certain materials relating to the motion to suppress. These materials consist of the "logs" of electronically monitored conversations, some of which do and some of which do not involve the defendant as a participant. The Court granted the Government's motion and ordered that that portion of the materials which involved the defendant as a participant should be immediately turned over to him in order that he might more effectively argue his motion to suppress and agreed to review the remaining materials to ascertain whether there were additional conversations which involved the defendant. The Court has now concluded that review.

Hearings on these motions commenced on the 15th of November, 1966, and continued for about a week, during the course of which the parties were given full opportunity to present their evidence, both oral and documentary on the issues presented. At the conclusion of the hearings, the Court took these motions under advisement, and they are now ready for disposition. These motions will be considered seriatim.

(1) Motion for Suppression of Evidence.

Defendant Baker's motion for suppression of evidence is predicated upon the contention that the Government, in violation of Baker's constitutional rights, obtained certain evidence by means of electronic surveillance. The Government concedes that its electronic surveillance did, in fact, violate this defendant's constitutional rights in that some of the conversations recorded were those in which defendant was a participant. The Government contends, however, that none of Baker's conversations electronically recorded led to information which resulted in the nine-count indictment which is now lodged against the defendant.¹ The defense has been furnished with the excerpts from these recordings, which are identified as the conversations in which Baker participated. The defense has been given the opportunity of interrogating, under oath, those representatives of the Government who participated in the recording of these conversations of the defendant, as well as those who supervised these activities. It has not been established that any of Baker's recorded conversations has any causal connection with, or relationship to, the indictment. Furthermore, the Government has submitted affidavits that the evidence which it intends to utilize in this case comes from a source, or sources, completely independent from the source which the defense seeks to suppress. The defense could have interrogated these affiants as to the basis of these statements.

The Government requested the Court to read a series of logs and, in effect, to check the logs to ascertain whether any other Baker conversations appear. The Court has done this and has found none. During the interrogation of the Government agents who monitored the conversations in question, it developed that certain conversations were monitored which were unidentified. These were few in number and concerned trivial matters, social in character, which have no relevancy to the subject matter of the indictment. From time to time Baker's name was mentioned by others whose conversations were recorded, but these were instances which involved other transactions which have no relationship to those which form the subject matter of the indictment before this Court.

With respect to conversations recorded in the suite of one Black in the Carlton Hotel in Washington during the months of February, March, and April of 1963, the defense contends through the testimony of Black and Baker that Baker has established standing because of the fact that he had a key to Black's suite and because he had access at all times to his suite.² One of the cases relied upon is Jones v. United States.³ In Jones, supra, while executing a search warrant, Federal agents found narcotics hidden in a bird's nest in a window awning of the apartment they were searching. The defendant was a guest in the apartment which had been leased by a friend who was away for several days. The defendant's subsequent motion to suppress the narcotics was resisted by the Government on the grounds that he lacked the requisite "standing" to object to the search. The Supreme Court held that the defendant's status as a guest in the apartment constituted a sufficient possessory interest in the premises to enable the defendant to invoke the protection of the Fourth Amendment. Jones is authority for the standing of a guest to challenge the legality of the manner in which narcotics were seized in, or adjacent to, the apartment of his host. Jones is not authority for the proposition that the guest stands in the shoes of the host to suppress the fruits of any and all unlawful acts that may be committed by the authorities, insofar as the apartment is concerned, particularly those which do not relate to the guest.⁴ The Government recognized this proposition of law by making available to the defendant the transcriptions of all conversations in which he was a participant,⁵ and by refusing to give him others.⁶

At this point the Government contends that since there is no relevancy between the conversations in which defendant was a participant and the indictment that no taint attaches to the indictment. The defense, on the other hand, insists upon the opportunity to examine all transcriptions, including those recorded conversations between other persons and concerning many other subjects which do not in the slightest concern the defendant. Even if Baker had some unrevealed interest in these conversations in which he was not a participant, they have no relevancy to the indictment and are, therefore, extraneous.⁷

The defendant and his business associate, Black, took the witness stand respecting the special status of the defendant in the suite rented by Black at the Carlton. The substance of the testimony is that Baker had a key, that he was welcome at all times as a guest of Black. The suite consisted of two rooms—a sitting room and a bedroom—in each of which there was telephone service. The defendant testified that he made many telephone calls from this suite in the three-month period under consideration. He testified that he conferred with others in the suite. The Government has turned over to the defense all excerpts of the recorded conversations in which the defendant was a participant. This is in compliance with defendant's motion to suppress in which he specified those conversations in which defendant was a participant. On cross-examination of defendant, the Government sought to elicit testimony from the defendant as to which portions...