(concurring in part and dissenting in part):
The Government admitted its agents illegally entered the accused’s house in the United States a number of times and made fruitless searches for evidence. These acts deserve the severe condemnation accorded them in Judge Kilday’s opinion. They are most reprehensible and call for serious self-criticism and self-appraisal by the investigative agency and perhaps even the Department of the Air Force. However, Agent Reed, who submitted the affidavit for the warrant which resulted in the successful search, swore he acted only on the basis of certain statements made by the accused and information he personally obtained in Germany. The board of review scrutinized his testimony, and very carefully considered the surrounding circumstances, including Agent White’s averment that the notebook had not been seen in the previous searches of the accused’s home. It rejected appellate defense counsel’s argument that the testimony was unbelievable as a matter of law; and exercising its “fact finding powers,” concluded Agent Reed’s affidavit was truthful. Judge Kilday’s opinion suggests that further consideration of the issue might require a contrary conclusion.
I have no hesitancy in disregarding testimony which is inherently unbelievable, but I consider it unnecessary to review the issue from that standpoint. The record of trial shows the accused did not testify because he believed he was compelled to explain away the implications of the notebook. Rather, he testified as the result of *301a deliberate decision to “tell his side of the story.” See United States v Woodruff, 11 USCMA 268, 29 CMR 84. Before calling the accused to the stand, defense counsel made some preliminary comments on that decision. In part, he said:
“. . . In America, there is a presumption in favor of an accused if he does not testify; you cannot presume against him. But in this case we are not going to try to take advantage of that presumption and we are going to call Captain Kauffman to the stand to tell the story because we believe that he is the best man to present his side of the case. All parties have been waiting for the $64,000 question; the $64,000 question being, is Captain Kauffman going to tell his side of the story. Well, Captain Kauffman is, with one exception. That is, I am not going to let Captain Kauffman testify on the specification of Charge II.”
The accused talked freely about the notebook, and his testimony in that regard is substantially similar to that of Guenter Maennel, the Government witness. Consequently, if the search in which the notebook was seized was tainted by the earlier illegal searches, the accused’s own testimony eliminated any possibility of prejudice. United States v Woodruff, supra.
Turning to the points discussed in the principal opinion in connection with Charges I and III, I am constrained to disagree with some of the conclusions reached therein. So far as the conspiracy charge is concerned, if we were dealing merely with what Judge Kilday describes as “collaborating communist governments,” the submission to Soviet authorities of a report of the arrangements between the accused and the East German agents would, in my opinion, be an act directly advancing the conspiracy.
Under the terms of the conspiracy agreement, as testified to by Guenter Maennel, the accused was not simply to collect and cache national defense information, but to communicate such information to agents of East Germany. No means of communication were agreed upon at the meeting of the conspirators. According to Maen-nel, the Weiss cover address was not for the transmission of the information, but merely “for maintenance of impersonal contact between Mr. Kauff-man and me.” Obviously, some realistic method of communication between the accused and the agents was essential if the purpose of the conspiracy was to be achieved. The accused was to be stationed in the United States. It is difficult to see how he could transmit his information to the East German agents, without the active assistance of Soviet agents. It is common knowledge that it is Soviet Russia not East Germany that maintains the elaborate communist bloc espionage apparatus, parts of which operate in the United States. Alerting Russian agents to the agreement negotiated with the accused would have been a vital, even essential, step in facilitating communication by the accused to East German agents of the national defense material obtained by him. In that event, the report to the Soviet agents would have been an overt act separate from the conspiracy, and one which directly and specifically advanced its purpose. However, we have more here than cooperating governments.
Maennel testified that his espionage agency was “supervised and controlled by agencies of the Soviet Government.” The minute degree of that control is demonstrated by Maennel’s testimony that his interrogation of the accused was “interrupted” by a Soviet intelligence officer; that while the Soviet agent questioned the accused he had to wait in the “downstairs” part of the house in which the interrogation was conducted; that on “order” of the Soviet agent, Maennel brought certain papers to the accused for signature; and when the papers were signed, the Soviet agent determined their disposition. It is apparent, therefore, that Maennel’s report to the Soviet agents of the arrangements effected with the accused is not an overt act in furtherance of his agreement with the accused. Consequently, I agree with Judge Kil-day that the Government failed to prove an overt act. I join in setting *302aside the findings of guilty of Charge I and its specification and in the dismissal of that Charge.
The problem of the interpreter has two aspects. The first is concerned with Guenter Maennel’s knowledge and understanding of the English translations conveyed to the accused and his responses thereto; the second deals with other translations. Whether the accused could or could not understand German is wholly immaterial to the evidence in the first group. For example, Maennel testified he told the accused on September 30th that he was an officer of the Secret Political Intelligence Service. This information was translated by Lieutenant Eiserbeck into English. Maennel said he understood part of the English translation. Asked to state the words he understood, he said, “That is, an officer from the Secret Political Intelligence Service. That was referring to me.” He further testified that he understood the English translation of the words that he (Maennel) “work[s] against the USA for espionage.” A similar situation exists in regard to the contents of a document which Maennel testified was submitted to the accused in two versions, one in German and the other in English. The accused read and signed the English version and looked at the German version. Maennel testified as to his knowledge of the English words in the English document. From his testimony, the court-martial could reasonably infer the two papers were identical.1 Another such situation is the accused’s identification of the bases at which he was stationed, and his pointing out, on an atlas produced by Maennel, his “future station” in the United States.
Maennel was not as ignorant of English as the defense contends. He said he had studied the language for about two hours a week for a period of about a year. At the beginning of Maennel’s important testimony, defense counsel objected to Maennel’s “capacity” to recognize words in the English version of the document signed by the accused. The law officer allowed defense counsel to test Maennel’s facility with the language. Without apparent difficulty or hesitance — or at least none that was commented upon, or inquired into for the record by defense counsel — Maennel read eleven typewritten lines from the English translation of his Article 32 testimony. Asked whether he understood what he read, he replied, “About the sense — yes.” Maennel admitted he had difficulty in carrying on conversations with the accused in English; but at a number of places in the record, he gave enough of the English version of his conversations to allow his testimony to come in as direct evidence, notwithstanding the conversations were also interpreted by Lieutenant Eiserbeck. On the evidence of Maennel’s familiarity with English, and his recognition of specific English words, the law officer, in my opinion, correctly allowed his testimony into evidence on the matters noted and others of a similar nature.
Turning to the meeting on October 3d, and the heart of the conspiracy agreement, some of the evidence, such as the accused’s references to the atlas in response to a request by Maennel, fall in the class mentioned above. Others belong to the second class. In my opinion, all the evidence relating to this meeting is admissible because there is ample testimony to support the conclusion that the accused agreed to use Lieutenant Eiserbeck as an interpreter. The meeting of October 3d, as the board of review correctly observed, must be separated from those at which the accused was interrogated on September 29th and 30th. In the interim period, the accused went sight-seeing, drinking, and dancing, with Maennel and Bergmann. They were together for hours at a time. They had difficulty in carrying on conversation, but nonetheless they sufficiently understood each *303other for the type of activities they engaged in. October 3d was to be different.
Before the accused left East Berlin on Sunday night, October 2d, he was told in English, without the aid of an interpreter, “[p]art by Captain Berg-mann and part by” Maennel that they had all “discussed our interesting problems during the past days and that he [the accused] knows where we come from and what we are doing . . . and that” the time had come for another meeting “to where a contract should be made concerning the future.”2 Manifestly, this was to be a meeting for a serious discussion. It was not to be a meeting between strangers, under conditions of hostility such as characterized the interviews on September 29th and 30th. Instead, it was to be a meeting between friends intent upon effecting a permanent arrangement for an important undertaking. Consequently, it is reasonably inferable that the accused intended to make himself completely and clearly understood to the others, and to have the others understand him in the same degree. In light of these circumstances, the law officer and the board of review were entirely justified in concluding the accused consented to the use of the interpreter at this meeting. I would, therefore, affirm the findings of guilty of Charge III and its specification.
As to Charge II, I agree generally with Judge Kilday’s opinion. The accused insists his case is indistinguishable from United States v Marymont, 11 USCMA 745, 29 CMR 561, in that he was interrogated about an offense concerning which he had elected not to testify. The argument merits additional comment.
In Marymont, the accused was charged with premeditated murder and adultery. At trial, he elected to testify only as to the murder charge. Over defense counsel’s objection, the prosecutor was allowed to question the accused on whether he had had sexual relations with a woman with whom he had been romantically linked. We held the question was improper. We said the accused’s right to limit his testimony does not vanish because there is “an incidental connection between” the charge as to which he elects to remain silent and “the crime concerning which he desires to speak.” United States v Marymont, supra, page 751. The present case is substantially'different. There is not just an “incidental” connection between the question asked and the charges on which the accused elected to testify; there is, as Judge Kilday points out, a very “strong” relationship between the two.
The second point of difference between this ease and Marymont is in the nature of the accused’s testimony. In Marymont, we recognized that cross-examining the accused about the offense which he announced he would not testify to is nonetheless permitted if “the accused voluntarily extends his testimony to its allegations.” Id. at page 751. Among the allegations of Charge II are, (1) that the accused had knowledge of attempts to induce him to reveal information contrary to the security and the best interests of the United States, and to cultivate him socially; and (2) that such attempts were by representatives of the Soviet Union and the German Democratic Republic. The accused testified at length about these allegations. Some of his testimony is as follows:
“Q: I’ll ask you if, at any time during this period or any time while you have been in the military service, if you have discussed any matters of military affairs with anyone you have known to be either an East German or a Russian ?
“A: No, sir.
“Q: Before I ask you about that, who accompaniéd you on this automobile trip? [to the house at which the accused was interrogated on September 29th],
“A: There were two civilians, plus one of these policemen. The civilians were in the front seat; I *304was in the back seat with the policeman.
“Q: Was there any conversation at that time which involved any matters of importance, either political or military subjects ?
“A: There was no conversation at all.
“Q: All right. Now, on the morning of the 29th, what started the morning off ?
“A: The morning was started off by them bringing me a continental breakfast, a great big pot of coffee, some rolls, and a little bit of meat. Then another individual arrived, a heavy-set individual.
“Q: How was he dressed?
“A: He was dressed in civilian attire.
“Q: Well, describe him, generally?
“A: As I recall, he had a sort of a tan — kind of a dark brown suit; he must have tipped the scales at about 235 pounds; about six feet tall; smoked cigars.
“Q: Did he identify himself?
“A: He just said that he was a major of philosophy.
“Q: At any time, up to the end of this day, had there been any disclosure to you of the nationality of any of these interviewers?
“A: No, there had not been.
“Q: All right. To make this clear, then, in all the conversations up to the present time, on any information or any inquiry by them, you gave no information which touched on the national defense of the United States of America?
“A: This is correct, sir.
“Q: Anybody contact you about disclosing any information?
“A: No, no one contacted me.
“Q: Would it be fair to say that that was just a tour, sightseeing around that area?
“A: Strictly.
“Q: Did you . . . you did not get into any discussions that might have to do with the security of the United States?
“A: No.”
It is obvious from the above extracts of the accused’s testimony that he had no hesitancy about maintaining ignorance of the fact that the persons with whom he associated in East Germany were representatives of the two governments alleged in the specification. It is also obvious he had no hesitancy in disclaiming that he was asked for information contrary to the security and best interests of the United States. Thus, the accused testified at length about several elements of the offense charged. He simply refrained from saying specifically and directly that he did not report his contacts with the East German agents, as the regulation required. Having testified freely about some material elements of the offense, he could not, in my opinion, prevent cross-examination on the other elements of the same offense.
I have considered the other assignments of error, and I find nothing in them to justify setting aside the findings of guilty of Charges II and III. At trial, the law officer instructed the court-martial that for purposes of punishment it must consider Charge I and Charge III “as one offense.” On review, the board of review held the instruction was “correct.” It is doubtful, therefore, this Court’s dismissal of Charge I would have any material effect on the reduced sentence approved by the board of review. However, the board of review may have attached somewhat greater opprobrium to the conspiracy charge than to Charge III. To give the accused the benefit of any doubt in that regard, I join Judge Kil-day in returning the record of trial to the board of review for reassessment of the sentence.
It is reasonably inferable from the accused’s own testimony that the two documents were in fact identical. Thus, he testified that while he looked at the English version “the interpreter read off the other version.” He did not contend he detected differences; on the contrary, he described the German version as a “similar document.” He only contended that the document contained less than Maennel said it did.
The accused maintained that the October 3d meeting was merely to continue the sight-seeing in East Berlin.