United States v. Ebeling
146 F.2d 254
2d Cir.
1944
Check Treatment

*1 subject- person risdiction of matter. At than worst he suffered more an charge incorrect burden to the proof. erroneous, charge If not, the Appeals State Court held was ap might error been corrected peal ap Supreme Court which the pellant exist neglected to take. mere ence as to constitutional State correctness the decision enough justify Court is not a review v. corpus. habeas Tyler, United States ex rel. L.Ed. S.Ct. U.S. Moyer, Glasgow v. United States Warden, Cir., ex rel. Murphy Murphy, 861,- 108F.2d

Order affirmed.

UNITED STATES EBELING.

No. 13. Appeals,

Circuit Court of Second Circuit.

Dec. *2 record, to have en- City, parties shorten the for the York Kumble, of New David S. defend- stipulation whereby the tered into a defendant-appellant. admits, appeal only, purposes ant for of the Atty., of Smith, S.U. Asst. H. Vine the at the Government established U. S. Quinn, (T. Vincent Brooklyn, Y.N. alleged in conspiracy “the existence of the brief), Y., on the Brooklyn, N. Atty., of each without con- count of indictment the plaintiff-appellee. established, ceding that has the Government FRANK, CLARK, SWAN, and Before or with Ebeling’s defendant connection the participation Judges. Circuit conspiracies.” The in said Sebold, conspiracies about one centered Judge. CLARK, Circuit many known under his' of defendants to the upon an appeals his conviction Ebeling Germany, Sawyer. alias of born counts, charg first the two under indictment but the United naturalized as a citizen of to88 18 U.S.C.A. conspiracy under § ing States, approached a visit had been when on 22 U.S.C.A. provisions of § violate Reich, Germany by agents of the German conspiracy under charging and the second requested him obtain and transmit provisions of violate 34 to SOU.S.C.A. § intimately relat- information a character of 233, orig 22 U.S.C.A. 32. § 50 U.S.C.A. § feigned ing to national defense. Sebold appearing and now inally passed in 1917 compliance, agents communicated with but penalties, with increased U.S.C.A. § Investigation, and of the Federal Bureau of any unlawful makes it in substance pretended under their to act with direction or consular diplomatic other than one agents approached German who had him agent as an agent the United act in placed and with were others who later noti prior without foreign government of a contact him. told that with We are SOU.S. of State. Secretary fication to system counterespionage elaborate thus of of 1917— Espionage Act of C.A. § § went far as to undertaken include 34, mak 50 U.S.C.A. together with quoted, building transmitting of a radio station conspir applicable to penalties ing its also Service, German financed Secret Molzahn, acy, in United operated knowledge with full of the F. B. I. note, Mol denied certiorari agents. v. United zahn Ebeling The makes showed 1721—in substance as transmit, employed that he had any person direct- been since unlawful for publishers “Harper Brothers,” indirectly, any foreign government the book ly or document, department writing, at this was manager time traffic agent or thereof sketch, Harper’s subsidiary, book, photograph, book, of Book Publishers signal code blueprint, map, Shipping Service, shipped plan, books and photographic negative, instrument, publishers model, note, appliance, magazines or infor- of several abroad. His business called him the national defense. to obtain in relating to mation thirty-three relating sailings named formation to transatlantic indictment some The forwarders, freight other defendants, together numerous from a firm of and the with defendants, except charges against all conspirators; were that he trans of agents to one or both such information to pleaded guilty mitted fourteen gave were all con- Reich. Sebold the substantial testi counts, fourteen while the him, against involving a long mony after a trial. with both counts victed on City Ebeling was sentenced to im- him in York New Defendant June years, pay a During and to fine then had two conversation defend prisonment for count, impris- first and to $1,000, on the ant took correct information al occasion of count, defendant, years ready given Clausing, on the second five another onment for imprisonment run con- America to the effect that S.S. two terms cruiser, currently. appeal sufficiency ship, auxiliary troop His attacks not a and he conviction, sustain his ship the name of the evidence corrected another be also rulings longing admission to the Panama Railroad as several Line. testified, “Then,” evidence. Sebold “he said this week-end coming steamers four conspiracies charged extensive 7,000 of about tons leaving Prince Class are August existed from alleged to have were London, and I indictment, York New send July time of quick possible very that over establishing —it us, since, important.” is not before conspiracies in order be- following Defendant took stand in Another statement own day, to; half knowing objected admitted some five pleaded guilty defendants therein merely who had defendant stated the version indictment, both frequent counts gave conversation at he later *3 them, the trial. why contacts with to us some came seem reasons There several office, his asking home and his fact claimed error is not taken. well map only showing export ground objection for a The statistical then asserted was proper business ports that no from the United States to definite foundation had been year. receipt. laid for Actually certain its world for a was there given by nothing in prej Statements B. statement him the F. I. itself to the defendant; agents utility udice of the shortly after arrest also showed its seems to his contacts, meeting well to have been as as the limited—outside of his admission defendants, which of contacts with Sebold had testified. other which he has never showing inconsistency denied—to testimony given by The if with his later testimony, statement and for believed, clearly was sufficient to connect he then said that had no he conversation conspiracies this defendant with the which with the “stranger” whom he saw with necessary stand conceded. The infer evening on others is 10. There June only ence from de is not that forced; no claim that the statement was fendant on passing was he had information and the circumstances his willing indicate acquired ship sailings, as but that he freely days. ness to talk both Mc on by knew being given of the information Nabb rule was limited United States seeming- conspirators, intimately other so in fact 65, Mitchell, 896, 64 U.S. responsibility that assumed cor ly situation where the statement was it, recting asking for while immediate trans by illegal detention, occasioned or caused is mission of his new information. Attack which was not case here. now made on Sebold’s for claimed meeting Finally, in his version of our inconsistencies under decision in Unit cross-examination; Cir., brought Keegan, out it ed on F.2d is it given claimed the version de seems that the detention illegal. that was not prompt stand—admitting fendant on There we arraignment the meet held ing, portions applicable contemplated by but not the sinister of the con statutes did therefore, versation—-must, require arraignment on the true one. Fourth of July Sunday. But inconsistencies do not strike as or these us Here defendant was taken and, far-reaching; dealing compara Saturday into custody evening, June matters, questioned tively unimportant was for a as how the time and then bed, they do, permitted began, go conversation was seen impressed jury agent Sunday beginning M., even have on more at 10:30 A. showing story and the stenog unrehearsed maintained was dictated to a statement any event, rapher as to essentials. veracity late afternoon. do not issue We jury, delay was has settled think sufficient to make that, against point illegal, example, detention it the defendant. Nor is the de charged claimed, fendant for, the overt act could have or the first count sued imprisonment. against false defendant—a between him Cf. United States v. codefendant, Bell, D.C.S.D.Cal., Eichenlaub, F.Supp. Richard proven, 1941—wasnot ex Humphrey, well taken. United States rel. Janus June being now conspiracy reversing Idaho, conceded D.C. proven, necessary prose it was for the cution show further that defendant had assigned in the Error is refusal Further, participated in it. defendant’s own of the court to admit in Sebold’s evidence (as as his testimony) showed report to F. B. I. of his activities on “Dick,” Eichenlaub, i.e., present 1941. This was not used of his beginning at the conversation with by testimony; Sebold in his and when de Sebold. was made pro mand Government to it, inquired rulings evidence, duce the court whether Of the the one títere anything challenged the admission it would of defend tend most “to ex culpate Ebeling” to the F. or “would B. agent I. his ant’s ad arrest, vantage.” day now The United States Attorney after claimed the inadmissible States, to be then court, under McNabb v. showed it announced that it had read and saw “no why reason parlor too, This, the produce it,” called rele- business. would seem Government vant, “in the re- general that it could see ac- showing defendant’s port quaintance why reasons a confi- it should remain with various of the codefendants seen, which, dential document.” Defendant took formal fact as we have —a exception ruling, then but did not was not find contested. no error We inspection or ask its incor- for its these rulings. later poration appeal. in the He now record on Judgment of conviction affirmed. Krulewitch, relies on United States v. justifying reversal. FRANK, Judge (dissenting). Circuit But the Krulewitch case was limited ex- agree ruling concerning do not with the *4 pressly prosecu- to where the situation the require the refusal of the trial court to the possession tion 'had by signed in its a document government permit to defendant’s counsel to definitely a witness which contradicted inspect report. posi- my Sebold’s To make important testimony the she had clear, tion I must first certain of the state A the stand. statement of like nature fully majority facts more than does the not, however, did show such a contradic- opinion. admissible, tion would not have been as was witness, government’s the chief Cohen, Cir., in held United testified that on he had made 145 F.2d 82. The record here shows a report written to the Federal Bureau of nothing suggest any impeaching to value to Investigation his during activities that indeed, report; the judge’s the statement day, including his conversations with the contrary. shows Had the defendant wished defendant to which Sebold testified. He statement, to contest that he should have also testified that had he read over that re- steps procure taken the inclusion to of the port day the before he took the witness- record, document in the done the testify stand concerning to those conversa- Krulewitch case. tions. Defendant’s counsel asked the Dis- Attorney produce trict report. to that Finally, objects defendant to the ad reply Attorney’s to the District mission in evidence visiting of Sebold’s card purpose demand, the to counsel of the defendant’s paper and a containing Sebold’s address stated, “For attacking credibility the defendant, and that of another found in the of the witness.” ruling No was then made. desk Harper’s used defendant at business day The next the demand was renewed. office,as well as the address of still another Attorney The District port then handed re- the defendant found at the defendant’s home said, judge to the trial “I who upon search his arrest. Defendant after report read and I why see no reason claims that the search of his desk was ille upon the Government produce it, be called gal, although general objection and I can see in the rea- admission of hardly the exhibits made this why sons it should remain a confidential seem, however, clear. It would that document.” Defendant’s counsel then stat- employer possession who was in of the that “only part ed he referred that premises was the who could ob report, course, which has reference to ject to search. United States v. Rei or conversation with Ebeling, burn, 2 Cir., 525; Nassetta, F.2d In re party.” request no other But his 924; 125 F.2d States v. denied, exception and an nevertheless Salli, Cir., 115 F.2d 292. hardly There is taken. i enough of the record enable tous pass definitely assume, arguendo, issue made of rele that a statement dis vancy importance or the testimony crime, closing a made in confidence to a trial; see, so officer, far as we can prosecuting But, two privileged. relevant, probably exhibits were recently un this court held in United States v. important. Krulewitch, Cir., Much the same can said prosecution address obtained at the defendant’s surrenders that privilege, any, if house. It is asserted that calling the search was il person as a witness the who made legal, statement; cf. United Lindenfeld, for, Judge Learned Hand said, certiorari denied Linden “It mu'st be a condition of feld v. United privilege Mat pos —its Correa, Cir., thews v. but sessor—shall not adduce touching it is claimed that subject the address was in Indeed, matter communicated. handwriting of principle defendant’s wife general and was that is a toas all privileged obtained her in the beauty course of her communications. When their possessor helped I had light the trans bring affirm conviction a chooses into relate, man may actions which communications be innocent.5 may longer suppress the communica suggested It has been that because Accordingly, held tions themselves.” we Krulewitch doctrine diminishes the value per must be defendant’s counsel privilege on which inspect mitted such a written relies, that should be restricted.6 doctrine attempt impeach order to allow him to But I believe that that True, testimony.1 there the the witness’ curtailed, gives for otherwise it sustenance witness had had made testified she general government, notion that the testimony. her statement at variance with citizen, in prosecuting zealously IBut that case think the doctrine of do protected by disclosing the courts from rests that fact.2 or should rest on gathered pre evidence which it has case, It in the Krulewitch is also tru'e paring for trial and which aid him in marked, sealed, and made the statement was jury convincing of his innocence. That part appeal that we record on princi notion is at variance with the basic could see for ourselves that the ples government. form our Thus the did fact contradict Canon of Ethics of the American Bar As *5 inspection admit was there- refusal primary duty sociation states: “The of a But, especially fore error.3 as here arewe lawyer engaged public prosecution in a is judgment depriving dealing with a defend- justice not to convict bu't to see that is done. suspend liberty, I ant of his think * * * we suppression capable of facts decision until the district court certifies establishing of innocence of accused 4us so that can ascer- the statement to we highly reprehensible.” is As the Wisconsin tain contained matter whether or not it Supreme said, Court has “The district attor properly which could have been used for * * * quasi ney judicial is a officer. ‘A i.e., impeachment purposes, whether the prosecutor partisan should act not as a judge discretion. trial abused his convict, eager to but as an of the officer court, recently duty procedure arriving sanc- whose it is to in The flexible aid at * * * every the truth Holly in Hill in case.’ tioned Addison v. Fruit Prod- ‘His ob court, 607, ject, ucts, 1215, that * * * ”7 simply 322 64 like should be a re- ’ justice. regulation, Supreme mere Said view of a administrative Cou'rt,8 Surely “The analogy. Attorney furnishes an States is review United representative judgment jail ordinary a man not of an party which sends a to a controversy, years, procedure a sovereignty at least but of whose five obligation circumstances, govern impartially is as as flexible. noth- com pelling obligation govern all; its ing will much which at be lost and is dear to interest, therefore, whose spirit may and in a of our democratic institutions criminal I, by making slowly. not that it shall win gained case, haste be a one, that, justice sleep thought such, if I shall be done. could but As not peculiar very unnecessary expedition, inis a definite out of a desire for and sense the 7 1 State, 259, course, not be O’Neil v. 207 N. could 189 Wis. Of 280, was asked W. 281. until after the witness used pur not what it he had stated whether 8 Berger States, 78, v. United 295 U.S. oppor ported and declare 633, 88, 629, 79 L.Ed. But, tunity admit that he had. also, e.g., See Baker v. United Krulewitch, “since the ac we said 543; Cir., 533, State, Pell v. 8 not could ask” witness cused 650, 110, 111; 97 Fla. 122 So. Hillen v. “necessary questions preparation for 280, 253; People, 59 Colo. 149 P. statement, prop it admission of the People Fielding, 542, 547, v. 158 N.Y. inspection, demand er for 46 53 N.E. L.R.A. 70 Am.St. was erroneous.” refusal Rep. 495; Nicely Commonwealth Cir., States, 8 (Appeal Nicely), Heard v. United 2 Cf. 130 A. Pa. 18 737, 738; State, 255 F. Brower v. 26 Okl.Cr. 1051; 3 Cohen, United States v. 221 18 See also P. C.J. 1315-1316; C.J.S., District and Pros 369, should, course, ecuting Attorneys, pp. § It sealed. 404- Convicting Borchard, C.J.S., Law, The Inno- See Criminal (1932). pp. 519-520. cent dissenting opinion Cf. supra. Krulewitch, law, aim of Nothing servant of the twofold I have taken said escape or in even guilt suggesting which is that shall not that here District At- torney try and unethically: object suffer.” should not acted nocence He he did efforts, think, should, report I assist his court examination witness’ scrutiny shut out of evidence defendant’s counsel handed the here, witness’ turn to judge request which the trial who denied the importance as “pregnant out to be examination. Nor do I mean certaining judge unethically. truth.”9 I do mean acted that he my colleagues adopted have privilege government which the is, think, incompatible rule I with the relies far has a foundation flimsier principles underlying the authorities from than that which unsuccess- quoted. fully asserted in Andol- United States v. schek, for the was based asserted Treasury regulation, valid authorized statute, providing reports the Trea- pro- sury employees its are not to be approval duced in court without Secretary Treasury. we said There Judge (per Hand) : we Learned “While accept department must lawful for suppress documents, government to even KOCH v. COMMISSIONER OF INTERNAL help when will determine controversies REVENUE. persons, agree between third we cannot *6 No. 10508. suppression this include in a their prosecution, upon criminal founded those Appeals, Circuit Court of Ninth Circuit. very dealings relate, to which the documents Dec. criminality will, may, and whose exculpate. they directly So tend far as dealings, touch the criminal necessarily any ends confidential character may possess; the documents it must be con- open, lay in the and will ducted bare their subject matter. mu'st choose; either it must the transac- leave obscurity in the from tions which a will them, expose fully. draw or it must them possible us Nor it seem to draw does line documents whose bear between contents directly transactions, criminal may only indirectly relevant. those Not would such be ex- distinction tremely apply practice, difficult suppression reasons which forbid the same other, it in though case forbid perhaps, quite imperatively. not, We regulation hold have been reports ques- read not exclude know, We cannot course tion. stands, prejudicial how exclu- record been, uncertainty have but that sion trial; requires a new does not alone appear affirmatively that the error was in- meaning within the substantial 391.” The considerations which C.A. induced us Andolschek to hold that had waived been even pronounced cogency here. more Krulewitch, supra. United States v.