*1 cases). (two UNITED STATES COPLON 10339, 10801.
Nos. Appeals Circuit. Columbia District of
Argued Nov. 1, 1951.
Decided June *2 about charged first count 4, 1949, to March
December took, copied, appellant made and documents, were writings notes which parts records of the of the files and official intelli- Department containing of Justice espionage and reports gence relating to activities, pur- counter-espionage for the respecting pose obtaining information with intent and the national defense and that it would used reason to believe and to the States injury of United nation, in viola- advantage foreign of a of 18 U.S.C. 793. tion during charged that The second count an period appellant, being same Department employee -of Justice records, custody of having and as such De- papers filed with the documents and unlawfully willfully conceal- partment, extracts therefrom certain removed reports the Federal and summaries Investigation containing intelli- Bureau of espionage and coun- relating to gence data activities, ter-espionage violation U.S.C. § about two and After trial which lasted months, young woman one-half on both counts on found June Boudin, the Bar of of’ B. Leonard 1949, by jury the United Dis-- States York, pro hac .New Supreme Court of Columbia, for District of Court trict City, 'by special leave vice, imprison- July on 1 was sentenced Rosenstein, Court, New- years Max the first count and with whom L. ment for ten second, ark, J., brief, appellant. run years on the for concur- N. was three Asst, rently. Strine, appeals. Special Fred E. Atty. George Gen. with whom Morris Mr. employee Coplon became Judith Atty., Fay, States Miss Rosalie M. City Department in New York of Justice Attorney, Department Moynahan, Jus- January 1943. On on June C., tice, Washington, D. Mr. M. G, John Washington, D. was transferred Asst, Atty. Special Gen., Kelley, Jr., analyst Foreign Agents political aas brief, appellee. for on the Mr. were Jo- Department. Registration Section Howard, Atty., seph Asst. United M. The function of section is adminis G, ap- Washington, D. also entered Foreign Agents Registration Act,* ter the appellee. pearance for registration to obtain the thereunder of subject persons provisions, to its to review MILLER, Before K. PRET- WILBUR accuracy compliance with statutory PROCTOR, Judges. Circuit TYMAN registration requirements statements filed MILLER, persons, and Judge. -propaganda such to review K. WILBUR in accordance with the Act. filed jury in District of Colum- grand A October, 1948, appellant indictment returned a two-count was as- bia signed Security to the Internal on March Section to seq. 611 et * 22U.S.C.A. § ac- together She and some reports relative to Gubitchev were I. examine F. B. time, during Communists were agents or their movements of Russian tivities they there was to indicate to elude trying, so as to determine whether *3 law. federal observers. a indication of violation of the head Foley, who was William E. Again Cop- on February Judith and Section Foreign Agents Registration Ion went to met New York and Gubitchev. well, as Security Internal Section they engaged Once more in furtive be- January, early testified that period havior for a considerable of time. reports con- him appellant discussed with During by the surveillance the F. B. I. the Unit- agents in cerning certain Russian agents evening, that while the two were on that he mentioned ed When he States. Street, Broadway appellant near 192nd report that on an additional had received open purse was seen to reach into her and subject, appellant if when she asked and Gubitchev, at that time who had been be- Foley replied and that was could see it hind, up stepped beside her reached and appellant again top A later secret. week in front of her with his arm. After top could see asked him when she steps together, stopped few he and report was told that he did secret appellant walking. continued appellant later visit- About a month know. 3, 1949, On the ap- afternoon March Foley’s and for the time office third pellant superior, Foley, informed her that report. Foley top asked to see the secret she intended to leave for New York the custody replied passed into the that had day next p.m. on the 1:00 train. Late in official.
of another Ford, afternoon Peyton of March February 1949, Foley, Attorney General, The Assistant about On or appellant Foley memoranda, informed that was handed to three office having longer to suspicion, “Strictly directed no one of which under her was marked Con- reports. A new security subject examine internal fidential” “Amtorg as Ap- assigned Corporation that task. employee Trading Security— Internal work objected up this R.” pellant giving The memorandum referred to the ef- Foley very Amtorg equipment disturbed over forts of and told she was to obtain rela- change. expressed Soon after a Mrs. tive to atomic Rosson research and work, Department’s appellant her visited intention of determining taken over such office, Amtorg wanted to look whether said she was sending successor’s out reports, and removed equipment the F. B. I. information and appellant days highly A few later subject. some of them. relative secret Fo- know, office and ley suspected, to Mrs. Rosson’s did not but again went “any reports her relat- memorandum that she send was to asked used embassies, legations, foreign appellant or ascertain what would ing to do it. consulates, especially reports day, the next About 9:00 a.m. March ” Security ‘Internal Foley marked appel- were handed the memorandum to —R.’ appellant fifty lant, re- telling “quite sent some her that Mrs. Rosson it was hot and ports interesting.” that nature. very City appellant appellant went to New York left for New York on the 14, 1949, informing Foley plan first January 1:00 o’clock train according on p.m. intended to do so. Because she there about she reached 5:00 The testi- agents B. suspicion, kept F. I. fol- mony under who her (cid:127)was under her for four observed surveillance hours her and movements. thereafter lowed dis- p.m. 5:00 the most remarkable New York about closes conduct on the reached Coplon and part of Valentin and, following route to Gubit- circuitous after Judith met, separated, They Street, again; chev. met Broadway joined 193rd foot, p.m. by subway shortly they af- travelled after 7:00 man bus, together sep- B. sometimes by the F. I. sometimes identified terwards Gubitchev, arately. At all a Russian times two acted in A. na- Valentin manner, apparently taking employed great- United Nations. furtive tional might given any persons who 3 and on the morn- est care to elude ing from as They of March 4. following wandered them. uptown Broadway and 193rd.Street far .appellant's principal reliance 15th point Avenue between on Third versal is arrest in her they ar- and 16th There Streets. illegal, the subse- p.m. rested B. I. at 9:35 F. quent purse seizure of documents from inwas of the Fourth Amendment A number of items found in violation arrest,were that, therefore, in and purse introduced certain of those docu- after her slips evidence, twenty-two data ments which were introduced including her were which were memoranda of information inadmissible. *4 in the reports B. I. on file in F. tained agree with comment following Department Another document arrest, circum concerning Justice. and the typed appellant’s pages consisted of four in stances which it was made: 1 typewriter. dated March “ portable It was * * * n The Bureau she knew para- following and included Russian, twice been in contact with a had graph : suppose who it fair an was to was emis- don’t, sary I (and think of the Soviet kind or “I have been able Union one report every meetings given which another. Their will) get top to secret FBI appearance ap- I Michael on Soviet & Com- and fear of described to furtiveness prehension. persis- thé US. Intelligence Activities in manifested a munist favorable, reports I asked tent interest secret the moment was in Bureau When pre- report (He’d regarding Russia Foley where was which was somewhat sin- position. that he’d had such a re- ister in one of her viously On remarked ; department apparently offi- 4th port) prolonging some was said expect quite get meeting it cial had it and he didn’t third un- Gubitchev necessarily, nothing there was unless it were find a Foley back. remarked mo- action; report, for ment for some critical When I saw a and she was ‘new’ in it. minute, rapidly, acting appre- with redoubled I breezed caution and pages very little. about 115 hension. member It was ‘in- length; summarized first Soviet in appears “This situation to have to us Martens, activities, including
telligence’ ample given suppose reason to that these Lore, Altschuler, Poyntz, Silvermaster et pursuance meetings were a in concerted delega- heading It -had on Soviet UN al. object venture delivery whose was the I remember. The rest tion but that was all prejudicial to the information national se- Polish, Yugo, report I think was short, curity: conspir- that a criminal possibly some info on the etc. activities acy progress eyes was in before CP, USA.” agents.” n words, Coplon par papers from 'her Among taken other other ticipating felony introduced evidence was a in the commission purse, and of a presence two-page agent memorandum in hand- the F. B. when I. custody. true, concerning being the contents of the he took her into That writing person very interesting” agent situated “quite any hot and as the .memo- justified arresting March 3 from Assistant would have been of' randum Attorney appellant which was hand- without General warrant. a Both Foley late in the afternoon of March the common law2 and the stat Cir., 1950, Attempted States, 2 “2. v. United in Presence. —One who attempt 6S5. F.2d witnesses an to commit a trea- felony required or son is law Bishop’s New Criminal said prevent Hence, though it. terfere (1913 ed.) Procedure, : vol. only attempt misdemeanor, Felony or Treason 165. 1. “§ witnessing arrest of trea- sees act who Presence.—One wrongdoer.” felony may arrest the offender. son Moreover,— obviously inappro- quoted are ques just words arrest. such an ute authorized priate power arrest for concerning the powerless is, F. B. I. tion was the agent actually be- felony felony which sees for warrant without to arrest committed, al ing committed. being observed which he circum similar private person in though a provision un In our view the Code have done so ? could stances do no consideration intended to der agent’s sole that Bureau It is contended more, more, upon confer and did no than a fel- for warrant arrest without power warrant, right to agents the presence is ony his committed prescribed conditions, fel upon for authoriz- federal statute ferred already committed but not commit onies reasonable “has to do so if he himes presence. Code section ted in their arrested 'person believe grounds to upon confer did not like- felony is a of such fel arrest without warrant warrant before a escaping lihood presence their and was onies committed stat- arrest.” The can be legislatively intended to deal upon contention for this relied ute true, following being subject. That *5 was worded as that section U.S.C. Supreme § of statement the Court in the date Re, 1948, Di States v. 332 U.S. Di- “The read as follows: arrest. It then 222, 226, appli 92 L.Ed. is 68 S.Ct. Directors, inspectors, and rector, Assistant believe, however, “We in cable here: that Investi- Federal Bureau agents of the applicable an federal the absence of statute may Department of the gation of state arrest law of the where an without Justice firearms, sub- carry warrants and serve place validity. takes warrant determines its authority the the poenas issued under By Congress, of the earliest one acts without and make arrests retained, principle is the the of which still under the cognizable for felonies warrant process federal judicial arrest for a States, person of the United where laws ‘agreeably must be to the usual offense grounds has reasonable the arrest making process such mode of in offenders ” guil- person arrested is to believe that State.’ felony is a likeli- ty of and there such concerning being There no federal statute escaping can before warrant of his hood arrest, power agents op- particular this his obtained for arrest.” June power in New York erating 645, 62 c. Stat. 817. given by state statute to that private persons. The New statute foregoing does provision Code law, declaratory of common as shown purport by not deal with the its terms to 3, supra. in footnote power to arrest warrant for a without presence. beginning From the felony what is now agent’s committed Investigation, contrary, Federal Bureau language indicates To its power Congress agents, knew was not intended that that not to deal Bureau with 'being peace only power officers in the sense of but with the to arrest without usual term, felony private persons were for a but with re- already warrant committed agent’s power presence. respect spect to their to arrest not in the With without war- rant, legislation in the power, prescrib- absence latter reasonable power. appropriate Congress ing defining Congress their to forbid ex al- knew, course, agent private person ercise unless “has reasonable without may felony arrest grounds person to believe arrested warrant for a that the committed, power felony being which he sees a like —a nation; throughout uniform escaping lihood of his before a warrant which private obtained for But and that can be his arrest.” also arrest crime, For 183 of the New York Code “1. 3. Section committed at- * * part tempted presence; is in Criminal Procedure as follows: person may another, private “A 754: already quoted com- which we felony have as 3052. It will warrant without presence, be observed that “which have
mitted but not committed in
words
committed”,
appeared
prescribed
which been
conditions
but
under
“felonies”,
1934 Act
vary widely
after the word
states.
different
omitted
revision of 1948. The re-
moreover,
long
knew,
that as
Congress
says
slight
viser’s note
of this and other
legislating on the
it refrained
alterations,
changes were
“Minor
made in
Bureau would
subject,
phraseology
powers
arrest for
continue
warrant,
felonies,
which we
without
hardly
It can
be said that the 1934 stat-
.
until
From 1909
Con-
just described.
ute,
purport
did
to treat of the
content to leave
gress was
power
of an
to arrest without war-
persons.
power of
arresting
rant
felony
presence,
for a
committed in his
seen,
meant,
(a)
just
we have
This
dealing
was converted into a statute
the agents
throughout the United States
subject
agent’s
reducing
au-
warrant
to arrest
thority
regard drastically
in that
below
presence,
in their
for felonies committed
private person, simply
aof
because
without war-
they could arrest
(b)
and that
“which
words
have been committed”
committed
rant for
felonies
past
were omitted when the statute
only under conditions
presence, but
their
suppose
vised. We cannot
Congress
which differed
subject to limitations
intended, by
slight
alteration of
states.
among the several
greatly
section, make a
agent powerless
Congress enacted
state
affairs
felony
In this
to act when a
is committed before
*6
the fore-
eyes,
which was
legislation4
in 1934
although
universally
it is
held or
on
that section read
3052 as
provided
private
of
person may
runner
§
Coplon’s
It au-
day
arrest.
the
of
a felon observed in the commission of his
Judith
“
*
* *
to make
Bureau
purpose
thorized
crime.
Yet
must be attribut-
for felonies which
without warrant
ed to Congress
arrests
the 1934
revising
stat-
cog- ute,
and which are
have been committed
if the arrest here is to be held unlaw-
States,
the United
the laws of
nizable under
ful.
ar-
person
the
making
in cases where
Our conclusion
that the
arrest of
to believe
grounds
has
rest
reasonable
Coplon
4, 1949,
on March
was law
Judith
of such
arrested
ful. The incidental search of her purse
felony
is a likelihood
and where there
and seizure
the incriminating documents
warrant can
person escaping before a
were therefore not unlawful
and
docu
his arrest
be
for
properly
ments were
received in evidence.
statute,
original
Thus the
§
foregoing
conclusion is in conflict
derived,
to
do
3052 was
awith
holding of the United States Court
al-
warrant
for felonies
without
arrests
Appeals
for the Second Circuit
arresting
ready
made such
committed and
Coplon
the arrest of
in New York on
Judith
power
through-
uniform
of Bureau
evening
of March
1949—the same
nation,,
their
whereas theretofore
out the
arrest to which we have referred —was il-
regard
had varied in dif-
power in
legal, that the resultant search of
purse
original 1934
ferent states.
statute did
and seizure of documents therefrom was
subject
of arrests without
not touch
unlawful, and that the documents so seized
by agents for felonies committed
warrant
suppressed
should
and not ad-
presence,
left them with
their
and so
mitted in evidence against
Coplon
her.
power in that
which was
the same
States, Cir., 1950,
cussion, explicit sanctity right directions the constitutional and more similar effect given privately an accused judge to counsel to consult with zealously is generally recognized and en that defendant and his counsel were quired consult state courts. to bind to forced as well federal themselves as - Rider, 1920, together parte Ex 50 during eighteen hour over- court said in this 797, Cal.App. night point right of the trial 195 965: “The recess this crucial P. at accused, bail an in jail place or .the defendant’s court would revoke confined or other pending charge jail and him incommunicado of detention a commit to trial of him, possible. against -opportunity that no to have to con consultation would be an ultimatum, freely the vow sult counsel without to the court’s Yielding his person, presence objection counsel third accused whose of silence between and his de- accused, being present and fulfilled. Twice while able to the hear given stand, passes the -court an- fendant was on the what between the his accused and recesses, counsel, admonished one rights and nounced short fundamental and ‘have guaranteed by remain the defendant seated the American criminal law— any- your right Legislature ig no that no or court can discussion with counsel injunction im- nore of body else.’ No such violate.” versed Accordingly, ground absolute to allow courts arising from defendant calculations as to ant guaranteed sistance of counsel is tween this have been assistance of the Government contention page 522: “To ing a trial.” exact Glasser v. Lederle court recess was most with each ing. ant [86 of the defendant’s constitutional posed upon any other witness consult [60] With to the trial court were well -founded. L.Ed. 680] counsel Constitution. require federal We can find no restriction of silence prejudice produced attorney and a counsel page and his counsel must his wrote consultation was denied other during privileged by the Sixth counsel of the counsel its denial.’ prosecution. them to disclose what would 76, 62 the conviction must new -counsel : ‘The at deprive motion for- mistrial direct- during all the amount of trial States, supra, His S.Ct. following, client, but, justification trial recess. We during the foregoing, Judge prove affirmatively stages between too right certainly for his communication be- granted.” objection By restricting the [457] fundamental and between Not accused right Amendment indulge to-have the as- court thi-s eighteen 182 F.2d at defense, at-page to have deprivation during the injunction to consult defendant prejudice 315 U.S. stated recesses, proceed- right on- defend- accused defend- in nice be impos- would reject hour Qualls, 1943, this 417; Thomas v. valuable court deprivation thereof.” Hughes 34 Ohio 549, 51 It is also crime lary lowed the was held that a fair trial had been denied. State, N.E. 760. conversation between consultations with their counsel violates People sented State v. 157 N.E. room, ure to allow a defendant confined in P.2d In New York Other state cases to the same talk with the 1943 341, 342, said, McBride v. private an Illinois 62 1929, with his by counsel and insisted same court held v. the constitutional S.W.2d interview his Collett, Cal.App. jealously guard 488, App. right, public Misc. equally Shiftman, 121 Mills, 1927, constitutional California 54 consultation with his counsel 58 Cal.App.2d 60, Ohio St. *10 337; lawyer Ohio A.L.R. defender case defendant, State, in their defense.” has true 170 N.E. “Their right to Snook v. App. 1944, been said that: where 217 P. them in Ex 1932, 121 1220; N.Y.S.2d court, immediate prior 292, 117 the accused from right rights, only did not 444; Ohio the judge 168 parte Snyder, in a to trial Sanderson v. in Ex duty Ill. five minutes to be State, accused of right Tex.Cr.R. N.E. effect are that fail- Ford St. trial, Cashin, private private N.E.2d permit jail repre- corol- again parte “ 1929, 440- to a 139; is a 114, 136 182 al v. it
759 “ ** * 251; Five point is 287 S.W. It contended State, 105 Tex.Cr. telephone 241 interception conver- ‘the State, 1922, Tex.Cr. v. 91 Turner 1378; attorney rel. sations between and client is in State ex 162, 23 A.L.R. S.W. process violation of 94, 130 the due clause Davis, 9 Okl.Cr. Tucker Amendment, etc.’ Fifth L.R.A.,N.S. 1083. 44 P. may wrong ethical there have “Whatever unequivocally establish These cases they conduct, perpetrated, if been such guaran- Amendments principle that two upon no influence acts that could have right crime persons accused of tee poisoned this evi- case tainted unless be- both counsel privately to consult Certainly thereby. was dence is a fundamen- during This trial. fore and evidence suggested, no such abridged, inter- be tal which cannot right line, point even or counsel does not out upon in man- with, impinged fered procured this testimony scintilla prosecution not entitled is The ner. way.” hear the present representative have a We counsel. of accused and conversations erred We think District Court defendant equally true that consider interception telephone holding together talk right to lawyer have a and his messages appellant and counsel between her their conversations telephone without trial, occurred, during before and if it prosecution by the monitored being nothing serious breach of more than a do they which mechanical device secret interception evi yielded ethics such unless would be an not It is used. being not know introduced her. dence which was com- cannot say the accused answer to true, pointed out, that court as the interception his plain of 605 as con Act, Communications if he had on counsel with his conversations Court, Supreme not by the does strued personal consulta- ample occasions other offense but does con wiretapping make face, no lawyer, face tion with his interception demn as criminal the and dis fact would That overheard. message, closure the contents of the both unconstitutionality from blot of erase the being complete acts essential to the offense. consultations. other intercepting the act analogous that is But the Fifth and the -motion for a opinion denying Amendments, unqualifiedly In Sixth gen- limited the trial,8 judge the trial guard counsel, right new to assistance of guaranty that constitutional erality vindication making right depend upon right shall whether its denial accused have resulted l>y prejudice. holding Supreme counsel that demonstrable consultation upon pri- States, said in Glasser v. Court intrusion government’s U.S. S.Ct. vacy does not violate the two Amendments “ * * * procuring L.Ed. 680: right the means of evidence to have unless quote opin- the assistance counsel from the too convict. funda- used to F.Supp. page “Again, 870: mental and absolute to allow ion, while courts in- at .to dulge in telephone conversations nice [intercepting amount calculations prejudice arising from its accused and denial.” counsel] between ethics, a serious breach We think it is further true that punished new by granting be duct cannot assistance of counsel so fun- such conduct was the means unless damental and absolute denial de- convict procuring (cid:127)of trial which validates the it occurred and Quite perfectly adage, old fendant. requires a verdict of therein absque injuria’ (Wrong without ‘Damnum aside, regardless of prejudice set whether apply in case.” would injury) shown to have resulted from the de- cas-e, Glasser appears opin- having nial. held following also “denied Glasser the trial court ion: D.C.D.C.1950, F.Supp. Coplon, States v. 8. United *11 counsel, her attorney, grant assistance of if a effective finds and, guaranteed Amendment”, the new by the Sixth trial. Supreme requires said: “This error Court may thought Whatever be government that the be new trial verdict aside and a set upon surreptitiously officers intruding ordered as to Glasser.” client, in attorney versations between and opinion my justify that fact alone does not the District conclude that Court .Yet, reversal majority a conviction. affording hearing erred in as to the a not opinion upon is grounded theory government allegations that the interception of any such be- conversation device her wiretapping listened a tween must, defendant and her counsel telephone attorney her conversations with law, deprived matter of deemed be going before the trial and while it on. her counsel, of the effective aid en- and new The order the motion for a denying title her to a new trial. aside, ground trial will be'set as far as concerned, be the case will and remanded I can justification see no for another whether hearing for a to determine the al- complete report trial. A trial leged actually interceptions occurred. If does, sulting in the I conviction defendant’s so, the should award new District Court think, convincing proof offer that neither trial at the accused can be free which were, been, nor counsel or could have interception surreptitious of her tele- any in way handicapped in the conduct of phone counsel, with her conversations record, defense. That and all cir- enjoy can of his effective assist- reveals, satisfy cumstances it me that the guaranteed by whch ance Constitu- did, times, defendant at all enjoy the full tion. Indeed, untrammeled aid of counsel. it is imagine information, difficult to how A in a criminal defendant case nature, secretly possessed by whatever legally guilty except be found government agents, could affect the service rights are his constitutional trial which of her counsel. The motion for a new scrupulously No conviction can observed. specifies nothing point. on this There stand, overwhelming the matter how no bare assertion that defendant was de- guilt, evidence of if the accused is denied prived Still, of her to aid of counsel. counsel, any or the effective assistance of under the ruling of majority, broad process of law with other element of due nothing required. more is Their directive deprived be life out or cannot calls interception new trial if liberty. conversations between at- defendant No. 10801is reversed remand- Case torney occur, did however irrelevant accordance with this hearing for a harmless to her defense. This broad stand opinion. justified vindicating means of affirmed;' the guarantee Case No. 10339 case the Sixth Amendment right of With counsel. I doctrine No. 10801reversed and remanded. agree. cannot Assuming wrongful upon privacy trusion of consultation be- PROCTOR, Judge, concurring attorney, tween client and if it did not im- part dissenting part. pair the aid of counsel defendant was not opinion I main.ap- concur in the prejudiced, there is no occasion to vin- 10339; part peal, opin- in that also guarantee. dicate the upholds in 10801 ion the conclusion stated, For I that the District Court reasons think Government’s the convic- now, tion proof should affirmed traceable to tapping without fur- ther proceedings. However, wires. I defendant’s dissent as under the majority majority ruling from the action of direct- case go must back to Court, District ing Court determine I the District do wheth- with all deference agents intercepted telephone submit government er the ultimate and is- controlling sue conversations between defendant should be: Was the de- defendant *12 so, If of counsel? prived the full aid not, it If must have new trial. she should fair trial and had a she has
follow that Resort to another. granted not be should retrial can- allowing action of
the drastic which has to vindicate not serve though abridged. Precious safeguard to be as a counsel to aid of wor- fetish liberty,
life and
shiped blindly. CHAPMAN, Secretary
HOMOVICH Interior, et al.
No. 10778. Appeals Circuit. Columbia District of
Argued 21, 1951.
Decided June