were passed to the source after he received the initial telephone call at the outset of a particular contact. Thus, for example, as G-907 reflects, the instructions picked up at the southeast corner of the A & P building, directing the source to the dropsite, were signed by "Jim." Also undenied are the averments of the United States that the person who telephoned the source identified himself as "Jim." Assuming the truth of the sworn allegations before me, it is clear that "Jim," identified by the United States as the defendant Enger, at times, played a principal role in bringing about the various contacts between the source and the persons, stated by the United States to be the defendants, who were allegedly engaged in espionage activities.
As I have also noted, the significance of Enger's role is underscored by his acting at each and every meeting in a prominent capacity, according to the affidavits before me, and always driving his own automobile. Moreover, given the contents of the letters, it may reasonably be inferred that the writer was not a mere messenger, but rather exercised substantial authority in orchestrating the contacts. Thus, in the instructions given to the source on May 20, contained in the "Bartlett Pears" can (See Keary-Taylor Affidavit, para. 12), along with the $ 4,000 in cash, it is stated over the signature of "Jim" that he is speaking for "my Headquarters" and wants "to continue our mutual cooperation." That "Jim" is acting in a significant capacity is also demonstrated by his writing in the same document to the effect that he and his "Headquarters" "are also interested in significant secret plans and reports" and matters "carried on at your base." "Jim" adds that "(w)e will pay for such documents sufficiently more compared to the material received from you earlier, provided they are new and have an appropriate classification." Perhaps even of greater significance, "Jim" next discloses in this letter that "we are studying" arranging "a personal meeting with you overseas," probably in Austria. "Jim" then purports to be able to convey to the source "some advice concerning your security." With respect to the Austria meeting, "Jim" then advises that the source should "not go to Austria direct" but rather go through other countries such as Spain, West Germany or Switzerland.
Relative to the Austria meeting, "Jim" was also in a position to state in the same letter that if the source was not able to go to Austria, there would be no need for "the operation in June." Instead, "Jim" set the "next operation" for August. The letter also contains dates of meetings not only in August but in October and December, with alternate dates given as well.
Enger's close connection to the letter may be reasonably inferred from his activities as witnessed by the agents.
Turning to Chernyayev, and the obvious necessity for his constant presence, taking the averments of the affidavits as true, his role was almost as significant as Enger's (again assuming that, on several occasions, Enger used the name "Jim"). In addition to the numerous sightings which I had adverted to in my earlier opinion, we need only turn to the allegations of the affidavits related to the May 20, 1978 transaction. The transaction required two people. The affidavits detail the role ascribed to Enger, a role already discussed by me. Someone had to place the whipped cream container at the southeast corner of the A & P building shortly before the 2 p.m. telephone call was made, since, if engaged in the illegal activity charged by the United States, the defendants could not risk having the whipped cream container stand exposed to any passersby too long. Significantly, it was not Zinyakin but Chernyayev who placed the box at the corner. Equally significant, it was Chernyayev and not Zinyakin who drove off in his own automobile to the dropsite and, as reasonably may be inferred from the sighting of Chernyayev at the dropsite, who left the "Bartlett Pears" can there just minutes before the source, following the instructions in the whipped cream container left by Chernyayev, arrived to retrieve the "Bartlett Pears" can, depositing at the same place the Tropicana container.
Given the foregoing facts and circumstances as they now appear, I am satisfied that the earlier determination, granting defendants' motion to suppress under Fed.R.Cr.P. 41(f), should be vacated and the defendants' motion denied.
The analysis starts once again with the diplomatic immunity statutes (22 U.S.C. §§ 252 and 253) and the Vienna Convention.
Sections 252 and 253, enacted April 30, 1790 (1 Stat. 117), were derived from the English Diplomatic Privilege Act of 1708 (7 Ann. c. 12). See W. Blackstone, Commentaries on the Laws of England, 256 (Andrews ed. 1899). Section 3 of that Act rendered void "all writs and processes" for the arrest of a qualified diplomat or for the distraint, seizure, or attachment of his "goods or chattels."
Section 4 made all violations of Section 3 a crime.
These provisions, which remained in force in Great Britain until 1964 (Diplomatic Privileges Act 1964, c. 18) were construed to apply only to civil, not criminal, process. 7 British Digest of International Law 756 (C. Parry ed. 1965). The partial immunity from criminal process enjoyed by diplomats in Great Britain prior to 1964 was based on common law. Id. at 756-63.
In 1790 the first Congress passed 1 Stat. 117. Section 25 of that statute rendered void any writ or process for the arrest or imprisonment of a diplomat or for the distraint, seizure, or attachment of his "goods or chattels";
§ 26 of that Act made violations of § 25 a crime punishable by not more than three years' imprisonment;
and § 28, a provision without a counterpart in the British act, made it a crime, among other things, to "assault," "strike," "wound," or "imprison" a diplomat.
Although §§ 25 and 26 were modeled on the British Act and despite the absence of any indication in the legislative history that the American provisions were intended to have a meaning different from that of their British predecessor,
an early American case construed § 26 to apply to criminal process. United States v. Benner, Baldw. 234, 24 Fed.Cas. 1084 (No. 14,568) (C.C.E.D.Pa.1830).
The aforesaid three sections of the 1790 act have been carried forward, with only minor changes, to the present day: § 25 has become 22 U.S.C. § 252;
§ 26 has become 22 U.S.C. § 253;
and § 28 has become 18 U.S.C. § 112(a).
The Tropicana carton and the film therein, I find, were not Zinyakin's "goods or chattels" (See Black's Law Dictionary (Third ed.) and 38 C.J.S. 942) within the meaning of § 252. Again accepting as true for purposes of this motion the facts before me, they reasonably lead to the conclusion that Zinyakin knew that the information in the Tropicana carton was national defense information related to the security of the United States obtained through violation of the laws of the United States and hence property which he intended to steal.
Having just picked it up from the "drop," he was carrying it to Enger's automobile, there presumably to deliver it to Enger, who, it appears, was in charge of the operation. Indeed, had the agents waited until Zinyakin delivered the package to Enger, or placed it in Enger's automobile in full view of the agents, seizure of the carton could have been made incident to Enger's arrest and no right of Enger's, fourth amendment or otherwise, would have been violated.
This is because the agents had a lawful arrest warrant for Enger's arrest and a limited automobile search, then and there, to retrieve the carton would have been justified, since, as Mr. Pass' affidavit now reveals, the carton was in plain view of the agents at all times after Zinyakin picked it up and carried it toward Enger's automobile. On the other hand, under the circumstances they were confronted with then and there, it cannot be said the agents acted unreasonably.
Since 1790 the statutes which today are §§ 252 and 253 have undergone sparse judicial interpretation. Such as there has been does not bear upon the issue here, that is, the meaning Congress intended to be given to the phrase "his goods or chattels."
Two fruitful sources of international law for the draftsmen of the 1790 Act were the writings of Hugo Grotius and Emerlich de Vattel. See F. Ruddy, International Law in the Enlightenment: The Background of Emerlich de Vattel's Droit Des Gens, 281-84 (1975). Grotius, discussing the immunity conferred upon a diplomat's personal belongings, wrote:
In respect to the personal property of an ambassador which is to be considered as an incident to this person, it cannot be attached, nor taken in execution, neither for the payment, nor for the security of a debt, neither by the ordinary process of a court of justice, nor by the extraordinary interposition of the local sovereign: such, in my opinion, is the best founded doctrine. For an ambassador, in order to enjoy complete security, ought to be exempt from all constraint, in respect to his person and those things which are necessary to him.
H. Grotius, The Rights of War and Peace, Bk. II, chapter 18, section 9. Similarly, Vattel wrote:
(A) foreign minister, as we have already shown, is independent of the jurisdiction of the country; and his personal independence in civil cases would be of little avail, unless it extended to every thing which he finds necessary in order to enable him to live with dignity, and quietly to attend to the discharge of his functions. Besides, whatever he has brought with him, or purchased for his own use as minister, is so connected with his person as to partake of the same fate with it. Since the minister entered the territory on the footing of independence, he could not have it in contemplation to subject his retinue, his baggage, or his necessaries, to the jurisdiction of the country. Every thing, therefore, which directly belongs to his person in the character of a public minister, every thing which is intended for his use, or which serves for his own maintenance and that of his household, every thing of that kind, I say, partakes of the minister's independency, and is absolutely exempt from all jurisdiction in the country. Those things, together with the person to whom they belong, are considered as being out of the country.