Frеderick B. Krol, the defendant-appellant, prosecutes this appeal from a judgment of conviction and sentence entered by the District Court upon its finding that the defendant was guilty as charged in Count 1 of a two-count indictment. The cause was tried to the court without a jury. The defendant was sen *777 tenced to eighteen months imprisonment. Count 1 charged that the defendant in violation of 18 U.S.C.A. §§ 2 and 201 (b) aided and abetted Carl J. Madda to corruptly give $200 to Erwin Katz, an assistant United States Attorney, with intent to influence Katz’ decision in connection with a civil case Katz was handling for the government. Count 2 of the indictment, with respect to which the court found the defendant not guilty, charged that thе defendant conspired with Madda to violate § 201(b), and it was as part of the conspiracy that defendant and Madda corruptly gave Katz $200 to influence him.
The contested issues presented by the defendant’s contentiоns on appeal are: (1) whether the evidence is sufficient to sustain the conviction; (2) whether inconsistency in the court’s findings requires a reversal; (3) whether the court’s admission of evidence obtained in violation of the Illinоis statute 1 forbidding electronic eavesdropping constitutes reversible error; and (4) whether the receipt of testimony that the defendant had refused to be interviewed by government agents concerning Madda’s arrest dеprived the defendant of a fair trial.
In resolving the issue of the sufficiency of the evidence to sustain the conviction, we must view the evidence, together with the reasonable inferences which may be drawn therefrom, in the light most favorable to the government. United States v. Weaver, 7 Cir.,
We are of the opinion that there is sufficient evidence tо sustain the defendant’s conviction. Defendant, by his own admission, was cognizant of a bribe attempt, although by his version it was Katz who initiated it. Following the bribe offer, the defendant offered to “do *778 it” himself, and eventually provided Madda with the money involved in the payment.
After his December 17 meeting with the defendant and Madda, Katz reported the incident to the FBI and his December 18 telephone conversations with Krol and Madda, and his late afternoon meеting with Madda which preceded the payment of the $200 to Katz the next day, were tape recorded with Katz’ consent. These recordings were admitted in evidence over the objections of the defendant. Their content served to corroborate Katz’ testimony concerning the events involved. The defendant contends that Lopez v. United States,
“ * * * constitutional limitations aside, all relevant, competent evidence be admissible, unless the manner in which it has been obtained — for example, by violating some statute or rule of procedurе — compels the formulation of a rule excluding its introduction in a federal court. See, e. g., McNabb v. United States,318 U.S. 332 , [63 S.Ct. 608 ,87 L.Ed. 819 ]; Mallory v. United States,354 U.S. 449 ,”
But the facts involved in Lopez, the references to McNabb and Mallory, and the Court’s declaration in the context which followed—
“There has been no invasion of constitutionally protected rights, and no violation of federal law or rulеs of procedure.”
—make it clear that the Court was speaking of federal rather than of state law or procedural rules. And the continuing validity of Rathbun v. United States,
“The case is thus quite similar to Rathbun v. United States,355 U.S. 107 , [78 S.Ct. 161 ,2 L.Ed.2d 134 ] in which we sustained against statutory attack the admission in evidence of the testimony of a policeman as to a conversation he overheard on an extension telephone with the consent of a party to the cоnversation.”
We conclude that neither the existence of the Illinois statute nor its construction as applied to a state prosecution (People v. Kurth, supra) require a reappraisal of the federal rule of evidence applied in United States v. Williams, 7 Cir.,
We are unpersuaded by defendant’s contention that the judgment of conviction cannot stand because it is based on inconsistent findings. The court found the defendant not guilty on the conspiracy count of the indictment. In this сonnection the court said:
“ * * that the evidence does not warrant the Court concluding beyond a reasonable doubt that [the defendant] is guilty of a conspiracy. The Court is of the opinion that he knew about it and he aided, but when I review the testimony of Mr. Katz in the matter, I cannot come to the conclusion that there was a conspiracy.”
Aiding and abetting the commission of a substantive offense is a crime different from a conspiraсy to commit the same substantive offense. Colosacco v. United States, 10 Cir.,
We agree with the defendant that the court, over defendant’s objections, improperly permitted a government agent to testify that when, subsequent to Madda’s arrest, the agent sought to interview Krol concerning the matter, Krol told him over the telephone that he desired to consult with an attorney prior to making any statement, аnd that when he visited Krol’s office on two subsequent occasions Krol told him that he did not desire to make any statement regarding Madda or the arrest of Madda. The witness was first questioned concerning his conversation with Krol on оne of the subsequent visits he made to Krol’s office. The content of that conversation was admitted on the prosecutor’s representation that one of the purposes of the testimony was to establish the witness’ familiarity with the defendant’s voice as a foundation for his identification of the defendant as the person with whom he had the earlier telephone conversation. But inasmuch as the record discloses that the testimony сoncerning all three of the agent’s conversations with the defendant reveals that the content of all of those conversations was substantially identical, resort to this strategy for the purpose of bringing the content оf the conversations to the court’s attention is to be condemned. Cf. United States v. Watkins, 7 Cir.,
But, this was a bench trial, and we do not regard the impropriety as constituting prejudicial error which requires a reversal. In the context in whiсh it occurred we regard it as harmless. In ruling on the defendant’s objections the court expressly declared:
“All of this may stand solely for the pose of showing that [the witness] had conversation of sufficient amount to know [defendant’s] voice, according to his conversation, because a man has no obligation, as the law is clear, to testify, and refusing to discuss a matter is neither acknowledgment of guilt nor can be held against a person, so thаt is clear, but for the purpose of showing whether or not he knew his voice when he heard him, this is proper.”
And defendant’s reliance upon United States v. Turnipseed, 7 Cir.,
“Some of Turnipseed’s co-defendants made confessions. These confessions were not admitted in evidence as against Turnipseed. Nevertheless, the learned trial judge considered them as evidence against this defendant. The judge stated Turnipseed talked about the checks during the time he drove the automobile. The only evidence of any such statement was in a co-defendant’s confession which is not in this record so far as Turnipseed is concerned.”
Thus,
Turnipseed
affirmatively disclosed the court’s reliance on improper matter to supply an element of proof critical to the establishment of Turnipseed’s guilt. Here, we have a contrary situation. The trial court in his ruling expressly disavowed consideration of the testimony concerning Krol’s conversation with the agent as bearing on the defendant’s guilt. There is no basis upon which we can conclude that the court did so regard that testimony. Absent some affirmative disclosure to the contrary such as was presented in
Turnipseed,
a court trying a case without a jury is deemed to have considered only admissible and relevant material. United States v. Oliver, 7 Cir.,
The judgment order appealed from is affirmed.
Affirmed.