The opinion of the court was delivered by: LACEY
The defendants have moved for dismissal of the indictment, contending they are entitled to the protection of diplomatic immunity.
The factual predicate for the defendants' claim of immunity rests primarily on letters submitted to the court on behalf of the defendants by the U.S.S.R. Ambassador to the United States, Hon. Anatoly F. Dobrynin, and Hon. Erik Suy, Legal Counsel to the United Nations. Defendants themselves have filed no affidavits in their own name. Hence there are here lacking facts explaining why their United Nations vocations required their presence in New Jersey, or a contention by the defendants that they were not in New Jersey at the times alleged by the United States.
Ambassador Dobrynin's letters, attached as Exhibit A to the defendants' notice of motion, are formal claims of immunity by the U.S.S.R. An identical claim of immunity is made for each of the defendants. The following is the complete text of each letter:
CLAIM OF DIPLOMATIC IMMUNITY
I, Anatoly F. Dobrynin, Ambassador of the Union of Soviet Socialist Republics to the United States of America, hereby have the honor to draw your attention to the fact that the Soviet Citizen Rudolf Petrovich Chernyayev has a diplomatic rank of Second Secretary conferred on him in accordance with the provisions based on the decree of the Presidium of the U.S.S.R. Supreme Soviet of May 28, 1943.
The Government of the Soviet Union made available the services of Mr. Chernyayev as an Administrative Officer in the United Nations Secretariat, and Mr. Chernyayev accepted this post with the knowledge and consent of the Government of the Soviet Union.
Mr. Chernyayev arrived in the United States in May, 1974, having a Soviet diplomatic passport no. 015793 and since that time has been attached to the Secretariat of the United Nations.
The Secretariat of the United Nations at all these times had knowledge of the fact that Mr. Chernyayev retained and retains at the present time his diplomatic rank.
I hereby, in the name of the Government of the Union of Soviet Socialist Republics and in conformity with the applicable principles of international law claim immunity from arrest and prosecution on behalf of Rudolf Petrovich Chernyayev and respectfully request that the Indictment against him be dismissed.
Anatoly F. Dobrynin (signature)
CLAIM OF DIPLOMATIC IMMUNITY
I, Anatoly F. Dobrynin, Ambassador of the Union of Soviet Socialist Republics to the United States of America, hereby have the honor to draw your attention to the fact that the Soviet Citizen Valdik Aleksandrovich Enger has a diplomatic rank of Second Secretary conferred on him in accordance with the provisions based on the decree of the Presidium of the U.S.S.R. Supreme Soviet of May 28, 1943.
The Government of the Soviet Union made available the services of Mr. Enger in the office of Political and Security Affairs at the United Nations Secretariat, and Mr. Enger accepted this post with the knowledge and consent of the Government of the Soviet Union.
Mr. Enger arrived in the United States in December 1973 having a Soviet diplomatic passport no. 012841 and since that time has been attached to the Secretariat of the United Nations.
The Secretariat of the United Nations at all these times had knowledge of the fact that Mr. Enger retained and retains at the present time his diplomatic rank.
I hereby, in the name of the Government of the Union of Soviet Socialist Republics and in conformity with the applicable principles of international law claim immunity from arrest and prosecution on behalf of Valdik Aleksandrovich Enger and respectfully request that the Indictment against him be dismissed.
Anatoly F. Dobrynin (signature)
The Dobrynin letters do not contend that either defendant is, or at any material time was, duly designated by the U.S.S.R. to serve as its representative to the United Nations, that either is or was on the staff of the U.S.S.R. delegation to the United Nations, or that either ever performed or was ever assigned to perform any diplomatic duties on behalf of the U.S.S.R. in its relations with the United States (or any other government) while residing in this country. Instead, the letters do not go beyond stating that the defendants, from the time of their separate arrivals in the United States from the U.S.S.R., have been "attached to the Secretariat of the United Nations," while retaining their diplomatic ranks as conferred on them by their government.
The nature of their employment with the United Nations is set forth in the letter of The Legal Counsel to the United Nations, dated June 23, 1978, attached as Exhibit B to the defendants' notice of motion. The following is the full text of Mr. Suy's letter:
I wish to refer to your request for certain information regarding two officials of the United Nations Secretariat, Mr. Valdik Enger and Mr. Rudolf Chernjaev (sic).
I understand your request to relate to the officials' titles and functions, as well as to their official status, within the United Nations Secretariat.
In respect of Mr. Enger, I wish to inform you that his title is "Political Affairs Officer", and that his grade is P-4. For your information I recall that the ranks of the Secretariat's professional staff is as follows in descending order:
In addition there are other categories of staff, generally of lower rank, such as general service staff, manual workers and guards.
As far as Mr. Enger's functions are concerned, I wish to advise that he was appointed a member of the Unit for Co-ordination and Political Information, Office of the Under-Secretary-General for Political and Security Council Affairs. A comprehensive description of the responsibilities and functions of that unit is set out in the relevant part of the Secretary-General's bulletin concerning the organization of the Secretariat, namely ST/SGB/Organization, Section I (and Amendment 1), Department of Political and Security Council Affairs, a copy of which is enclosed.
In respect of Mr. Chernjaev (sic) I wish to inform you that his title is "Administrative Officer", and that his grade is P-3. He was appointed a member of the Training and Examinations Service, Office of Personnel Services. A comprehensive description of the responsibilities and functions of the Training and Examinations Service is contained in the relevant part of the Secretary-General's bulletin on the organization of the Secretariat namely, ST/SGB/Organization, Section P(II), Office of Personnel Services, a copy of which is enclosed.
As far as the present employment status of Mr. Enger and Mr. Chernjaev (sic) is concerned, I wish to advise that pending the action against them in the United States District Court for New Jersey they are placed on special leave with full pay, but that they remain officials of the Secretariat.
The attachments to the Suy letter indicate that the responsibilities of the defendants, in their employment with the United Nations, include the following.
The defendant Enger is a Political Affairs Officer attached to the Unit for Coordination and Political Information, Office of the Undersecretary General for Political Information. The responsibilities of the Department of Political and Security Counsel Affairs are described, as follows:
Provides secretariat services for the Security Council and its subsidiary bodies, including the Committee established in pursuance of Security Council resolution 253 (1968), the Committee of Admission of New Members, the Military Staff Committee, the Committee on Council Meetings away from Headquarters, the Ad Hoc Sub-Committee on Namibia, and for the First Committee and the Special Political Committee of the General Assembly and other General Assembly committees and bodies concerned with matters relating to the maintenance of international peace and security;
Provides secretariat services for the Conference of the Committee on Disarmament;
Follows, in accordance with Article 54 of the Charter, the activities of regional agencies pertaining to the maintenance of international peace and security;
Assists the Secretary-General in the discharge of his political responsibilities under the Charter and in pursuance of resolutions of United Nations organs.
The functions of the Unit for Coordination are described, as follows:
Assists in departmental co-ordination, programme planning and monitoring and evaluation of plan implementation;
Maintains relations with regional organizations, with the Office for Inter-Agency Affairs and Co-ordination and other units of the Secretariat and with the United Nations Institute for Training and Research and follows activities on non-governmental organizations relating to political questions;
Participates in sessions of the Preparatory Committee of the Administrative Committee on Co-ordination and arranges for the Department's representation at conferences, etc.
Recruits the staff of the Secretariat and of subsidiary organs of the United Nations;
Administers the staff of the United Nations, directly and through instructions issued to other units of the Secretariat;
Formulates and applies the personnel policy of the United Nations;
Co-operates with specialized agencies and the International Atomic Energy Agency with a view of developing common personnel policies;
Provides documentation on personnel matters for the Fifth Committee of the General Assembly;
Provides secretariat services and documentation for the joint administrative bodies dealing with personnel matters.
The functions of the Training and Examination Service are described, as follows:
Coordinates, evaluates and reviews the training activities of the Secretariat;
Advises and assists in the identification of the administrative and management training needs of the Secretariat and makes proposals in consultation with Staff Services for appropriate training programmes;
Plans and organizes orientation programmes and secretarial supervisory and managerial training;
Plans and organizes the professional studies programme;
Plans and organizes the language training programmes of the Organization;
Plans and administers all examinations for the award of language proficiency certificates and for language allowances;
Administers the Russian language and interpreter training programmes in Moscow and liaises with the Inter-Agency Interpreter trainee programme in Geneva;
Organizes, co-ordinates and administers competitive examinations for recruitment to posts with professional requirements and to posts with special language requirements at all duty stations and tests for recruitment to all clerical and secretarial posts at Headquarters.
The defendants rely in part, as noted in their memorandum of law, on the contention that they hold diplomatic passports issued by the U.S.S.R. Such passports do not appear of record; neither have the defendants submitted affidavits to establish their existence. The United States, however, has submitted the affidavit of United States Foreign Service Officer James Alexander Smith to establish that both defendants Enger and Chernyayev were, at the time of their arrest, holders of valid G-4 visas. In addition, the United States has submitted visa applications made by the defendants. Since the defendants rely on the fact that they have diplomatic rank, it is in the interest of justice that I consider their effect on the defendants' status for purposes of their immunity claim. Therefore, I will treat it as established that the defendants indeed held such passports.
Defendants' claim of immunity is based solely upon "principles of international law." Defendants' Memorandum of Law in Support of Defendants' Motions, 2. They emphasize that they do "not claim immunity as diplomats accredited to the United States . . . ." Defendants' Reply Memorandum of Law in Support of Defendants' Motions, 2. Instead, they claim "that they are diplomats who are present and functioning in this country as diplomats." Id. The argument, it appears, is that the defendants are diplomats De facto, if not De jure, and thus are entitled to the perquisites of diplomatic status, including immunity from arrest and prosecution.
The general diplomatic immunity statute, 22 U.S.C. § 252, reads in pertinent part:
Whenever any writ or process is sued out or prosecuted by any person in any court of the United States . . . whereby the person of any ambassador or public minister of any foreign prince or State, authorized and received as such by President . . . is arrested or imprisoned . . . such writ or process shall be deemed void.
The word "minister," as used in the above statute, is given a functional definition by 22 U.S.C. § 178, which states:
The word "minister," when used in sections . . . 251-258 . . . of this title . . . shall be understood to mean the person invested with, and exercising, the principal diplomatic functions. . . .
The United States has submitted authenticated certificates of State Department officials stating:
This is to certify that I, Edith J. Dobelle, Chief of Protocol, United States Department of State, am responsible for registering and maintaining the records of the Department of State concerning the official status of officers and employees of foreign governments in the United States who are entitled to diplomatic immunity pursuant to Sections 252-254 of title 22 of the United States Code of the Agreement between the United States and the United Nations concerning the Headquarters of the United Nations, June 26, 1947, 61 Stat. 3416, TIAS 1676. I am also responsible for registering and maintaining the records of the Department of State concerning the official status of representatives in or to international organizations, and officers and employees of such organizations, entitled to the privileges, exemptions and immunities granted by Sections 288-288f-2 of title 22 of the United States Code or the Convention of Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900.
I further certify that such records are maintained under my custody in the District of Columbia.
I have caused diligent search to be made of such records and have found no record which would indicate that Valdik A. Enger, a Soviet national employed by the United Nations Secretariat, is notified to and recognized by the Department of State in any capacity which would entitle him to diplomatic immunity pursuant to the above-mentioned Sections 252-254 of title 22 of the United States Code.
I further certify that records in my custody do not reflect that Mr. Enger is, or ever has been, the principal resident representative of a Member of the United Nations under Section 15(1) of the Headquarters Agreement, or that his name was ever notified to or accepted by the Department of State as a member of the staff of such a representative under Section 15(2) of that agreement.
I further certify that the only records in the Department of State regarding the official status of the said Mr. Enger list him as an employee of the United Nations Secretariat, entitled to the privileges and immunities granted by Sections 288-288f-2 of title 22 of the United States Code and Section 18(a) of the Convention on Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900.
Edith J. Dobelle (signature)
Certification (Government Exhibit A-1)
This is to certify that I, Edith J. Dobelle, Chief of Protocol, United States Department of State, am responsible for registering and maintaining the records of the Department of State concerning the official status of officers and employees of foreign governments in the United States who are entitled to diplomatic immunity pursuant to Sections 252-254 of title 22 of the United States Code or the Agreement between the United States and the United Nations concerning the Headquarters of the United Nations, June 26, 1947, 61 Stat. 3416, TIAS 1676. I am also responsible for registering and maintaining the records of the Department of State concerning the official status of representatives in or to international organizations, and officers and employees of such organizations, entitled to the privileges, exemptions and immunities granted by Sections 288-288f-2 of title 22 of the United States Code or the Convention of Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900.
I further certify that such records are maintained under my custody in the District of Columbia.
I have caused diligent search to be made of such records and have found no record which would indicate that Rudolf Chernyayev, a Soviet national employed by the United Nations Secretariat, is notified to and recognized by the Department of State in any capacity which would entitle him to diplomatic immunity pursuant to the above-mentioned Sections 252-254 of title 22 of the United States Code.
I further certify that records in my custody do not reflect that Mr. Chernyayev is, or ever has been, the principal resident representative of a Member of the United Nations under Section 15(1) of the Headquarters Agreement, or that his name was ever notified to or accepted by the Department of State as a member of the staff of such a representative under Section 15(2) of that agreement.
I further certify that the only records in the Department of State regarding the official status of the said Mr. Chernyayev list him as an employee of the United Nations Secretariat, entitled to the privileges and immunities granted by Sections 288-288f-2 of title 22 of the United States Code and Section 18(a) of the Convention on Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900.
Edith J. Dobelle (signature)
Certification (Government Exhibit A-2)
These certificates conclusively establish that the defendants are not ministers within the statutory definition and thus are not entitled to the protection of 22 U.S.C. § 252.
For the same reason the defendants may not avail themselves of the Immunity provisions of the Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes (Vienna Convention), to which the United States is a signatory. Article 29 of the Vienna Convention provides:
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
Article 31 of the Vienna Convention provides: "A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State." A "diplomatic agent" is defined by Article 1(e) as "the head of the mission or a member of the diplomatic staff of the mission," while the "diplomatic staff" consists of the "members of the mission having diplomatic rank." Article 1(d). No definition of "mission" is offered, but the functional description of its duties in Article 3 convinces me that the services performed by the defendants were not performed for or as members of the U.S.S.R. mission to the United States or the United Nations.
Even if they were members of the mission, the foregoing certificates of the State Department demonstrate that the defendants did not have diplomatic status in the eyes of the United States.
Special statutory provision is made for immunity for employees of international organizations in the United States by the International Organization Immunities Act, 22 U.S.C. § 288 Et seq. The statute provides, in pertinent part:
For the purposes of this title, the term "international organization" means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in (said section.)
(a) Persons designated by foreign governments to serve as their representatives in or to international organizations and the officers and employees of such organizations, and members of the immediate families of such representatives, officers, and employees residing with them, other than nationals of the United States, shall, insofar as concerns laws regulating entry into and departure from the United States, alien registration and fingerprinting, and the registration of foreign agents, be entitled to the same privileges, exemptions, and immunities as are accorded under similar circumstances to officers and employees, respectively, of foreign governments and members of their families.
(b) Representatives of foreign governments in or to international organizations and officers and employees of such organizations Shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees except insofar as such immunity may be waived by the foreign government or international organization concerned. (Emphasis added)
(a) No person shall be entitled to the benefits of (sections 228-288f) of this title unless he (1) shall have been duly notified to and accepted by the Secretary of State as a representative, officer, or employee; or (2) shall have been designated by the Secretary of State, prior to formal notification and acceptance, as a prospective representative, officer, or employee; or (3) is a member of the family or suite, or servant, or one of the foregoing accepted or designated representatives, officers, or employees.
(c) No person shall, by reason of the provisions of (said sections), be considered as receiving diplomatic status or as receiving any of the privileges incident thereto other than such as are specifically set forth herein.
Neither the defendants' Memorandum nor Reply Memorandum explicitly raises the foregoing statute as a basis for immunity. In the event, however, that the defendants' heavy reliance on their job descriptions is intended to raise the protection of the statute implicitly, it is appropriate that I analyze the International Organization Immunities Act in that light.
While employees of international organizations are provided with a broad-based immunity from laws regulating entry into and departure from the United States, 22 U.S.C. § 288d(a), Congress adopted a functional criterion to govern the scope of immunity in other situations, namely, that such employees "shall be immune from suit and legal process relating to acts performed by them In their official capacity and falling within their (official) Functions . . . ." 22 U.S.C. § 288d(b) (emphasis added). Espionage, the crime with which the defendants are charged, is, of course, not one of the functions performed in the defendants' official capacities with the United Nations.
United States v. Egorov, 222 F. Supp. 106 (E.D.N.Y.1963), is instructive. Egorov, charged with violating 18 U.S.C. § 794(c), raised virtually the same claims of immunity as the defendants raise here, including employment with the United Nations Secretariat. As to Egorov's contention that he was immunized from prosecution by 22 U.S.C. § 288d(b), the court noted:
Egorov, as hereinabove stated, was an employee of the United Nations, from which he received his compensation for services rendered. His duties and functions were entirely non-diplomatic in character. Employees of the United Nations are separate and distinct from persons designated by foreign governments to serve As their foreign representatives in or to the United Nations. United States v. Melekh, supra. His duties and functions in the Personnel Section of the United Nations did not, of course, contemplate or include such acts as those charged in the indictment herein. (Emphasis in original).
Id. at 108.
Accord, United States v. Melekh, 190 F. Supp. 67, 79-80 (S.D.N.Y.1960); United States v. Coplon, 84 F. Supp. 472, 474 (S.D.N.Y.1949) (Coplon I ). And see Mpiliris v. Hellenic Lines, Ltd., 323 F. Supp. 865, 882-83 (S.D.Tex.1969), Aff'd, 440 F.2d 1163 (5th Cir. 1971).
See also Ling, A Comparative Study of the Privileges and Immunities of United Nations Member Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic Agents, 33 Wash. & Lee L.Rev. 91 (1976):
The exemptions and immunities of United Nations officials in the United States, as stipulated by the terms of the United
Nations Charter and the General Convention, are designed solely to protect the independence of officials in their United Nations functions. No exemption from local jurisdiction is provided officials for acts in their private capacity. (Footnote omitted).
As Ling also points out: "(I)t is the work rather than the official which is protected," with the result that such officials "must obey all ordinary laws governing their private actions." Id. at 129.
There is, as well, a practical justification based on the legitimate self-interest of the United States. The fact that the United Nations has its headquarters in the United States requires a large number of foreign government representatives and foreign national employees to reside in the New York City area for substantial periods of time. From the standpoint of providing diplomatic immunity, it would be impractical for all concerned if each of those individuals had to be "approved" by the United States in advance. The accommodation reached is not to afford all such foreign nationals full immunity status. Rather, it is to permit the foreign government or international organization to undertake the selection of representatives and employees but, as a means of protecting this country's interests, to limit the availability and scope of immunity. Accordingly, under the Headquarters Agreement
and 22 U.S.C. § 288d(b), only a limited number of persons may receive full immunity and then only after prior government approval; all others are cloaked with immunity only when acting within the scope of their employment. As stated in United States ex rel. Casanova v. Fitzpatrick, 214 F. Supp. 425, 437 (S.D.N.Y.1963), a contrary approach would lead to the untenable result that:
a member state of the United Nations which may be hostile to our interests (would be) free to send to the United States individuals designated as resident members of their staffs, to engage in conduct destructive of our national interest and security and yet have them protected from criminal prosecution on the theory that their designated status cloaked them with diplomatic immunity. It would open the flood gates for the entry of saboteurs, agents provocateur and others under a built-in guarantee that no matter what the criminal conduct, the Government would not prosecute them.
Diplomatic immunity in its contemporary aspect may be broadly defined as the freedom from local jurisdiction accorded under principles of international law by the receiving state to the duly accredited diplomatic representatives of other states. See Bishop, International Law at 447 (1953); Hall, Treatise on International Law at 223 (8th ed. 1924).
The modern law of diplomatic immunity is derived from centuries of practical dealings among nations. The United States has long recognized the responsibilities imposed upon individual nations by force of international custom and treats the Law of Nations as the law of the land. Kansas v. Colorado, 206 U.S. 46, 97, 27 S. Ct. 655, 51 L. Ed. 956 (1907). That this is so is well illustrated by the frequently cited letter (of March 16, 1906) of then Secretary of State Elihu Root:
There are many and varied reasons why diplomatic agents, whether accredited or not to the United States, should be exempt from the operation of the municipal law at (sic) this country. The first and fundamental reason is the fact that diplomatic agents are universally exempt by well recognized usage incorporated into the Common law of nations, and this nation, bound as it is to observe International Law in its municipal as well as its foreign policy, cannot, if it would, vary a law common to all.
See IV Hackworth, Digest of International Law, § 400 at 513 (1942). The rule's rationale is a practical one: "that Governments may not be hampered in their foreign relations by the arrest or forcible prevention of the exercise of a duty in the person of a governmental agent or representative." Id.
Diplomatic immunities are required on the ground of practical necessity. . . . It is in the interest of the State accrediting a diplomatic agent, and in the long run in the interest also of the State to which he is accredited, that he should have such liberty as will enable him, at all times and in all circumstances, to conduct the business with which he is charged; and liberty to this extent is incompatible with full subjection to the jurisdiction of the country with the government of which he negotiates.
Hall, Supra at 218-19. The courts have recognized this policy. Hellenic Lines, Ltd. v. Moore, 120 U.S.App.D.C. 288, 290, 345 F.2d 978, 980 (1965); United States ex rel. Casanova v. Fitzpatrick, supra at 428; Restatement, Second, Foreign Relations Law of the United States § 73, comment A.
It was not until the end of the Middle Ages, however, that diplomacy truly began to be practiced as it is today.
By the end of the 17th century broad principles of diplomatic relations were recognized as matters of customary practice, though still subject to the exigencies of politics.
International treaties on the subject dealt with the accreditation of representatives in particular cases and had not yet advanced to the point of regulating the details of their treatment.
In more recent times the law of diplomatic immunity has been codified by the Vienna Convention, the principal effect of which is to codify the customary law of diplomatic relations, including the law of diplomatic immunity.
The Vienna Convention may be traced indirectly to an action of the League of Nations appointing a "Committee of Experts for the Progressive Codification of International Law." The Committee named diplomatic immunity as an area appropriate for codification due to: (1) its essentially procedural character; (2) the stability of the practices and procedures of embassies; (3) the fact that it is sanctioned by a high degree of reciprocity among nations; and (4) its familiarity to the international community from long practice and extensive academic discussion.
In 1954 the International Law Commission, acting pursuant to a resolution of the United Nations General Assembly, instituted work on a codification of the law of diplomatic intercourse and immunities. Pursuant to invitation by the General Assembly, 81 nations convened a conference at Vienna on March 2, 1961. The convention which grew out of that conference was signed on April 18, 1961, and entered into force on April 24, 1964, when it was ratified by 22 nations. As noted above, the Vienna Convention codified the customary law of diplomatic relations in existence since ancient times. In addition, it resolved many of the inconsistencies of State practice, including those relating to the scope of immunities and the persons to whom they apply. Most of the Vienna Convention is binding as customary law even upon nations that have not ratified it, and many of the treaty articles are declaratory of existing international law; the remaining articles are persuasive as evidence of existing international law.
An examination of the pertinent articles of the Vienna Convention,
which I find to be declaratory of the customary international law, reveals no basis for cloaking the defendants with the protective blanket of diplomatic immunity. The problem, in its essence, is one of definition: are the defendants by any standard, either codified or customary, within the class of persons traditionally entitled to the benefits of immunity from prosecution? The only answer of which the question admits is that they are not. The full privileges and immunities of diplomatic status have traditionally been reserved to those of acknowledged diplomatic rank, performing diplomatic functions. It is apparent to me, on the basis of what the defendants have placed before me, that their jobs are not of such a nature as to constitute them diplomatic agents by any definition of the term. They are employees of an international organization performing functions internal to that organization. Neither is simple employment by the United Nations necessarily indicative of diplomatic status. United States v. Coplon, 88 F. Supp. 915, 920 (S.D.N.Y.1950) (Coplon II ); United States v. Coplon, supra at 474 (Coplon I ). While the United Nations itself, and its top officials, undeniably perform certain diplomatic functions, the defendants' personal connections with those functions are too attenuated to be called diplomatic. A decision to the contrary would have the effect of cloaking virtually every United Nations employee above the clerical level with full immunity. That this has never been intended by the international community is manifest from the more limited immunities provided such employees by treaty and by statute.
It is not significant that the defendants possess "a diplomatic rank of Second Secretary conferred on (them) in accordance with the provisions based on the decree of the Presidium of the U.S.S.R. Supreme Soviet on May 28, 1943." Such unilateral action by the U.S.S.R., whatever its import within the Soviet Union, is of no extraterritorial effect, at least in the context of these proceedings. United States v. Egorov, supra at 107; United States v. Melekh, supra at 76-77. The traditional policy of the United States is that diplomatic immunity will not be conferred upon an individual unless he has both diplomatic status and an " "intimate association with the work of a permanent diplomatic mission.' " Coplon II, supra at 920. The defendants have not claimed that they have been received by the United States or by the United Nations as representatives of the Soviet government. Indeed, any such claim would be baseless, as the exhibits submitted here by the government make clear.
The cases cited by the defendants for the proposition that immunity is often unrelated to accreditation to the United States are inapposite. Those cases deal with the separate problem of guaranteeing the inviolability of representatives travelling through nations to which the representative is not accredited while en route to the receiving nation. The instant case presents an entirely different set of circumstances and policy considerations.
For the foregoing reasons the motion to dismiss the indictment on the basis of diplomatic immunity is denied.
The defendants next contend that the indictment should be dismissed for the reason that it does not allege an essential element of the offenses charged. Thus they argue that, while not expressly included in the statutory definition, an essential element of the offense under 18 U.S.C. §§ 793 and 794 is that the information obtained by the person charged be of a secret, non-public nature, a proposition for which they cite as authority Gorin v. U. S., 312 U.S. 19, 61 S. Ct. 429, 85 L. Ed. 488 (1941) and United States v. Heine, 151 F.2d 813 (2d Cir. 1945), Cert. denied, 328 U.S. 833, 66 S. Ct. 975, 90 L. Ed. 1608 (1946).
Contending that, since Counts 1 and 3 assert only that defendants conspired to obtain "national defense" documents, and Count 2 merely asserts that the defendants obtained documents marked "confidential", and that the quoted words are nowhere defined as synonymous with "secret, non-public information," defendants would have me dismiss the indictment for insufficiency.
Clearly, an indictment must allege all the elements of the offense charged, and, where all are included within the statutory language, it is appropriate procedure to track the statutory language in charging the offense.
I turn to the indictment itself.
Count 1 charges that the defendants conspired "to obtain information respecting the national defense of the United States, that is, photographs, photographic negatives, documents, and other writings connected with the national defense of the United States." Count 2 charges that the defendants "for the purpose of obtaining information respecting the national defense of the United States, did knowingly and wilfully obtain photographic film of a document and writing connected with the national defense of the United States entitled "Naval Air Development Center, Johnsville, Warminster, Pennsylvania, Report No. NADC-SD-7167, 15 October 1971, Light Airborne Multipurpose System (LAMPS) D/V-98 Phase B (AntiSubmarine Warfare) Final Report,' marked "Confidential.' " Count 3 charges that the defendants conspired to communicate, deliver, and transmit "photographs, photographic negatives, documents, and other writings and information relating to the national defense of the United States."
I find that the requisite elements are embraced by the charges of the indictment.
In Gorin the only issue presented was in the defendants' argument that the Espionage Act was limited to obtaining and delivering information concerning the places and things now described in 18 U.S.C. § 793(a). Otherwise, they contended, a statutory prohibition against "furnishing of any other information connected with or relating to the national defense than that concerning these specifically described places and things would make the act unconstitutional as violative of due process because of indefiniteness." 312 U.S. at 23, 61 S. Ct. at 432. The Court rejected this analysis.
The Court held the statute not to be limited to the places and things now described in 18 U.S.C. § 793(a), and found the statutory language not to be so indefinite as to be unconstitutional, stating:
But we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring "intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation." This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government. Finally, we are of the view that the use of the words "national defense" has given them, as here employed, a well understood connotation. They were used in the Defense Secrets Act of 1911. The traditional concept of war as a struggle between nations is not changed by the intensity of support given to the armed forces by civilians or the extension of the combat area. National defense, the Government maintains, "is a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness." We agree that the words "national defense" in the Espionage Act carry that meaning. Whether a document or report is covered by §§ 1(b) or 2(a) depends upon its relation to the national defense, as so defined, not upon its connection with places specified in § 1(a). The language employed appears sufficiently definite to apprise the public of prohibited activities and is consonant with due process. (emphasis supplied) (footnotes omitted)
312 U.S. at 27-28, 61 S. Ct. at 433-434.
The meaning of Gorin, for our purposes, is clear. Scienter, that is, intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, is an essential element under §§ 793 and 794. It is properly alleged. It must also be proved. In the course of the proofs, evidence bearing upon the issue of secrecy will be relevant, for, as the Court said in Gorin, "(w)here there is no occasion for secrecy, . . . there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government." 312 U.S. at 28, 61 S. Ct. at 434.
As to Heine, it simply dealt with explaining an element of the offense already contained in the statute. It did not add an additional element.
The three counts of the indictment are therefore not defective for relying upon the statutory language to allege the elements of the offense. See Fed.R.Cr.P. 7(c). There was no need to allege that the information sought and obtained was of a secret, non-public nature. The defendants' motion to dismiss the indictment for failure to allege an essential element is denied.
The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.
The vagueness and ambiguousness is said to lie in the fact that in 20 of the 59 overt acts alleged in Counts 1 and 3 the defendants claim to be unable "from any fair reading" to determine "whether the alleged conspirator made the calls at the telephone booth described in the overt acts or whether they were made from another telephone booth to the Navy officer stationed at the telephone booth described in the overt acts."
This motion is without merit. The indictment need only allege one overt act done to effectuate the conspiracy. Here, as defendants concede, 39 alleged overt acts are free from vagueness and ambiguousness.
Moreover, even a cursory reading of all the overt acts makes it plain that the Navy officer referred to had been directed to go to a public telephone and that overt act 1 clearly means that the Navy officer was "at a public telephone" when telephoned by a conspirator on August 30, 1977.
Defendants' motion to strike as surplusage paragraphs 5 and 6 of Count 1 is denied. These paragraphs read as follows:
5. At all times relevant herein the passenger vessel MS Kazakhstan was owned and operated by the Union of Soviet Socialist Republics through the Black Sea Shipping Company, Odessa, U.S.S.R.
6. On August 13, 1977, said Navy officer boarded the MS Kazakhstan for a round-trip voyage from New York, New York, to Bermuda, returning to New York on August 20, 1977.
The defendants argue that these allegations have no connection to the offense charged in the indictment, are inflammatory and prejudicial, and should be stricken.
Rule 7(d) of the Federal Rules of Criminal Procedure provides: "The court on motion of the defendant may strike surplusage from the indictment or information."
The United States, in its brief, states the following:
These allegations are that the MS Kazakhstan was owned and operated by the Soviet Union and that the Navy officer was aboard the vessel from August 13 to 20, 1977. The Government represents that the evidence at trial will show that the telephone call listed in Overt Act No. 1 was a direct result of events that occurred aboard the MS Kazakhstan between August 13 and 20, 1977. The allegations are therefore relevant to show the background of the first telephone call and the relationship that thereafter developed through the use of telephones and short-term caches.
Furthermore, one of the material facts the Government will seek to establish at trial is that the defendants and other co-conspirators acted on behalf of the Soviet Union. One of the many factors establishing this relationship will be events that transpired on the Soviet vessel. In this regard, the fact that the defendants Enger and Chernyayev and the co-conspirator were not on board the vessel at the time is probative of the common connection between the vessel, the Soviet government, and these conspirators. It should be noted that the indictment dates the conspiracy from "at least August 20, 1977," the date the MS Kazakhstan arrived back in New York.
From the above, it is apparent that testimony concerning the MS Kazakhstan will be given at trial and is probative of issues that will be considered by the jury.
Brief in Support of Government's Answers to Defendants' Pretrial Motions, 31-32.
Given the representations made by the United States, it is clear that there will be at trial reference to the MS Kazakhstan and the Navy officer's voyage on it in August 1977. Moreover, I fail to perceive the alleged inflammatory prejudice inherent in the allegation that the vessel was owned by the U.S.S.R. This is particularly true since the United States represents it will show a connection between the defendants and the U.S.S.R.
Defendants' Request For Particulars
In United States v. Addonizio, 451 F.2d 49, 63-64 (3d Cir. 1971), Cert. denied, 405 U.S. 936, 92 S. Ct. 949, 30 L. Ed. 2d 812 (1972), the Court of Appeals for the Third Circuit described the purpose of a bill of particulars:
"The purpose of the bill of particulars is to inform the defendant of the nature of the charges brought against him to adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense." . . . A bill of particulars should fulfill this function "when the indictment itself is too vague and indefinite for such purposes."
The court in Addonizio also stated that a bill of particulars is not to be used as a source of wholesale discovery of the evidence in possession of the United States or to require the prosecution to assemble the information in its files into a fully integrated trial theory. Id. at 64.
Review of the indictment reveals that it informs the defendants of the nature of the charges, provides adequate notice to prepare their defense and describes their criminal venture sufficiently so as to protect them against subsequent prosecution. Additionally, the affidavits underlying the arrest and search warrants convey a substantial amount of information.
Finally, government compliance with my discovery order, copying of trial exhibits and voluntary disclosure thereof and other materials, assure that these defendants will not be surprised at trial. Given the disclosures described, the defendants will be enabled to prepare thoroughly for trial.
The defendants' demands for particulars must be construed in the light of the foregoing.
I shall now deal with the defendants' demands item by item:
1-6. The United States will disclose the name, rank and nature of the commission and the type of security clearance of the Navy officer referred to in the indictment. ...