The opinion of the court was delivered by: LORD, III
Defendants have been indicted in a nine count indictment for violation of Title 18 U.S.C.A. § 281, 201, 641, 793(d), 2(a) and 371. Speaking generally, and without reference to the specific sections involved, the indictment charges that Sawyer, an employe of the Department of the Navy, unlawfully obtained for and delivered to Markham certain Navy documents and publications relating to equipment involved in proposed and future Navy procurement contracts. Markham, self-employed as a manufacturer's representative, used such documents and other advance information furnished him by Sawyer to assist in obtaining government contracts on behalf of manufacturers. Markham is alleged to have paid Sawyer in cash and property.
Defendant Markham (hereafter called 'defendant') has moved: (1) to suppress certain evidence; (2) to dismiss the indictment on the ground that it was procured by the use of illegally obtained evidence; (3) in connection with the motion to dismiss, to inspect grand jury minutes or, in the alternative, to have the court inspect said minutes to show the source of the indictment.
I. THE MOTION TO SUPPRESS
We have been told that in connection with an indictment similar to this in the District of Columbia, involving defendant Markham and another defendant (not Sawyer), the court denied a motion to suppress. We have not had the benefit of that court's reasoning, nor do we know what arguments were presented to it. We are satisfied, however, that this motion must be granted.
These are the operative facts:
The evidence which defendant seeks to suppress was seized by the F.B.I. in defendant's home in Virginia on June 3, 1961, pursuant to a search warrant. Included in the seized items were, among other things, a large number of Government documents and publications, many of which were marked 'confidential'. Defendant contends that the affidavits supporting the search warrant show on their face a lack of probable cause to search.
Two affidavits were executed on June 2, 1961, before the United States Commissioner for the Eastern District of Virginia, the district in which defendant's home was located. One, by F.B.I. Agent Richardson, recited that a confidential informant, formerly a Justice Department employe and at the time a business executive 'who is believed to be reliable, has furnished an affidavit to a special agent of the Federal Bureau of Investigation stating, in substance, that on February 15, 1961 * * *' he had met Markham pursuant to a previous appointment at the Washington Airport and had gone with him to his home. Richardson's affidavit continues:
'While en route from the airport to Markham's residence, Markham stated to the informant that he had formed the Washington Procurement Consultants, Inc., located at his home address, 103 Leroy Place, Pine Ridge, Fairfax County, Virginia, and that this corporation had been formed for the purpose of handling payoffs to government personnel. Markham stated to the informant that he, Markham, had access to information from the various defense agencies of the United States Government. On arriving at Markham's residence at 103 Leroy Place, Pine Ridge, Fairfax County, Virginia, Markham took the informant into his house. There he showed the informant various government documents including classified items from the Avionics Section of the Bureau of Weapons, Navy Department, identified by the following markings:
Richardson's affidavit also states that a Navy Commander Holt informed an F.B.I. representative that the above manuals were classified 'confidential', and that as of February 15, 1961, no copies of those manuals had been furnished to potential suppliers of bids.
The second affidavit, executed by Agent Kingsbury of the Office of Naval Intelligence, merely states that he observed the meeting at the Washington Airport on February 15, 1961, between Markham and the ...