Evening star., 1950-01-10
i. 5. Destroyed
Only Recording
In Gaming Case
Admission Relates
To Conversation by
Bernice Franklin

Bernice Franklin
The Government has destroyed
the only recording of a telephone
conversation madet by Bernice
Franklin, red-haired waitress, af-
ter she became the principal in
former in United States Attorney
George Morris Fay's campaign
against gambling.
This admission was made before
Judge Alexander Holtzoff in Dis
trict Court today by Assistant
United States Attorney William H.
Hitz.
Attorneys for William (Snags)
Lewis, Attilio Acalotti and Frank
Billeci. accused OF violating Dis
trict lottery laws. demanded pro-
duction of the recording to bolster
their contention that the Gov
ernment employed illegal wire
tapping to obtain evidence against
their clients.
Fay Resumes Stand.
Mr.. Fay returned to the wit
ness stand when the pretrial hear
ing resumed before Judge Holtz-
of this morning. He said he
knew a recording device had been
installed in Miss Franklin's apart
ment, but he had no knowledge
OF the conversation that was re-
corded.
Downey Rice, former FBI agent
who acted as chief of the under
cover men employed by Mr.. Fay
in the gambling campaign, testi-
fled he placed a wire recorder in
Miss Franklin's Sixteenth street
apartment. in March, 1948, after
she told him she had been threat
ened because of her participation
in the gambling Investigation.
THE call we were expecting did
not materialize," Mr.. Rice said.
80 we made a test CALL"
When Defense Counsel Charles
E. Ford asked to whom the call
was made. Mr.. Rice responded,
ITO a defendant in another gam
bling case" Later. he said the
call was made to Phil Samakow.
also known as Phil Harris.
Holtzoff Calls for Transcript.
This conversation, Mr.. Rice said,
was erased from the wire immedi-
ately after it was played back In
Miss Franklin's apartment be-
cause he did not attach any i'm
portance to it. He said he
thought stenographic transcript
of the conversation was in the
District Attorneys files.
When Judge Holtzoh asked that
the transcript be produced Mr..
Hitz said he could not find It In
the file.
Mr.. Rice insisted that the in
cident in Miss Franklin's apart
ment was the only occasion dur
mig the gambling investigation N
which a wire recorder was used.
On several other occasions, how
ever, a stenographer listening on
an extension telephone made
stenographic record of telephone
conversations Of Miss Franklin, he
said.
When Mr.. Ford asked that these
transcriptions be produced in
court, Mr.. Hitz replied that they
were In the confidential files of
the United States attorney and
would not be produced without q
court order. -,.s-. ..
Fay Offer Is Recalled.
Mr.. Ford recalled that Mr.. Fay
had testified that any records in
his files that defense counsel spe-
cif1cally asked for would be made
available. Mr.: Ford said that In
view of the position taken by Mr..
Hitz the offer by Mr.. Fay should
be stricken from the record.
Mr.. Rice aroused the wrath Of
Judge Holtzoff on several occa-
sions when he resorted to fine legal
technicalities to parry the ques-
tions of defense counsel.
"Mr. Rice, you must remember
you are here as a witness and not
as a lawyer" Judge Holtzoff ad-
monished him sternly at one point.
When Mr.. Rice told Mr.. Ford
'Iet's not be facetious." Judge
Holtzoff angrily told him, "you
may not argue with counsel; you
must answer questions"
Connection With Case Denied.
Judge Holtzof seemed to be par
ticularly interested in the fact that
the wire recorder did not require
a physical connection with the
telephone to record conversation.
Mr.. Rice explained that the ma
chine picked up a two-way con-
versation through an induction
coil placed near the telephone. He
said the telephone may have been
placed on top. of the induction
coil.
Throughout the questioning Mr.
Rice repeatedly interjected that
Miss Franklin invited him to bring
the wire recorder to her apartment
and that the conversation record
ed had no connection with the
present case.
The issue under argument !.
whether or not the Government
collected evidence against the de.
fendants through wire-tapping
The Communications Act Of 1884
holds such evidence cannot be ad-
mitted In a Federal Court.
with Mr.. Ford at one point yes