Opinion
No. 348.
June 10, 1940.
Appeal from the District Court of the United States for the Southern District of New York.
Thomas J. Fallon was convicted of perjury under section 231, Title 18, United States Code, 18 U.S.C.A. § 231, and he appeals.
Judgment reversed; new trial ordered.
George Morton Levy, of Mineola, N.Y., for appellant.
Mathias F. Correa, of New York City, for appellee.
Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
This case is controlled by the opinion handed down herewith in the case of United States v. Polakoff, 112 F.2d 888. The declarations of the accused over the telephone were even more damaging than in Polakoff's case, and certainly determined the verdict. A recording apparatus was interposed in the telephone circuit in the house of the prosecution's chief witness, Reilly, who was then acting in conjunction with agents of the Federal Bureau of Investigation. After all had been arranged Reilly called up the accused and their talk was recorded. This was repeated at another time and from another house. We see no reason for adding to what we have already said in the companion case.
Judgment reversed; new trial ordered.
I dissent for reasons I have stated in United States v. Polakoff, 112 F.2d 888.