Gorin v. United States

• Decision Date: 22 April 1940
• Docket Number: No. 9135,9136.,9135
• Citation: 111 F.2d 712
• Parties: GORIN v. UNITED STATES. SALICH v. SAME.
• Court: U.S. Court of Appeals — Ninth Circuit

111 F.2d 712 (1940)

GORIN v. UNITED STATES.

SALICH v. SAME.

Nos. 9135, 9136.

Circuit Court of Appeals, Ninth Circuit.

April 22, 1940.

COPYRIGHT MATERIAL OMITTED

Isaac Pacht and Clore Warne, both of Los Angeles, Cal., and Donald R. Richberg, of Washington, D. C., for appellant Gorin.

Willard J. Stone, Jr., of Los Angeles, Cal., for appellant Salich.

Ben Harrison, U. S. Atty., and Harold Raymond Shire and Norman W. Neukom, Asst. U. S. Attys., all of Los Angeles, Cal., for appellee.

Before GARRECHT, HANEY and HEALY, Circuit Judges.

HANEY, Circuit Judge.

Appellants challenge judgments and sentences rendered against them after conviction on three counts of an indictment. The first count charged violation of § 1 of the Act of June 15, 1917, Ch. 30, 40 Stat. 217, 50 U.S.C.A. § 31; the second count charged violation of § 2 of that act, 50 U.S.C. A. § 32; and the third count charged violation of § 4 of that act, 50 U.S.C.A. § 34. Generally speaking, these offenses relate to espionage.

One branch of the Navy service is the Naval Intelligence Office. Headquarters for the Eleventh Naval District are at San Diego, the intelligence office there being in charge of a District Intelligence Officer. A branch office is located at San Pedro and is in charge of an Assistant District Intelligence Officer. The investigators employed at the San Pedro office make their reports orally or in writing. The Assistant District Intelligence Officer then digests and evaluates the information and dictates the report to the Chief Yeoman — a secretarial employee. The latter, in writing the report on the typewriter, makes an original, three yellow copies and one green copy. These reports are numbered consecutively. One yellow copy and one green copy are retained in the San Pedro office and the remaining copies are sent to the San Diego office.

Appellant Salich was born in Moscow, Russia, on May 24, 1905, and lived there until 1917, when he moved with his parents to Kazen, which is about 700 miles east of Moscow. He then went to Manchuria in 1920, to Yokohama, Japan, 1921, and to the United States in 1923. He became a naturalized citizen of the United States, and was employed by the Berkeley Police Department as an active officer from July 1, 1930 until August 15, 1936. In 1935, Salich met one Aliavdin, Vice Consul for the Union of Soviet Socialist Republics (hereafter called the Soviet Union) in San Francisco, and thereafter saw him a number of times. In 1936, Salich made an application for a position with the United States Naval Intelligence Office. A letter from San Diego, dated August 10, 1936, advised Salich of his appointment, and he reported for work in San Pedro on August 19, 1936. At that time one Davis was District Intelligence Officer and one Roachefort was Assistant District Intelligence Officer. Salich thereafter saw Aliavdin in Los Angeles. Aliavdin knew that he was working for the Naval Intelligence Office.

Salich was an investigator and reported the results of his investigations to the Assistant District Intelligence Officer. He was expected to read the yellow copies of the reports which were kept in the Chief Yeoman's desk, in order to be familiar with the progress of investigations.

Appellant Gorin and his wife are citizens of the Soviet Union, and arrived in this country on January 10, 1936, under a passport issued by the Soviet Union. He then testified before a Board of Special Inquiry that he was to be employed in the Entourist Department of the Amtorg Trading Corporation, his salary to be paid by the Russian government through such corporation. His work was the organization of tourist parties from America to the Soviet Union. He was stationed at Los Angeles. Roachefort instructed Salich to contact someone in the Soviet Consulate regarding the activities of a Soviet official named Kaganovich in July or August 1937. Salich eventually contacted Gorin and had a conversation with him. Later during that year Gorin called at Salich's home, in the latter's absence, and told Salich's wife that he had a letter for Salich. A day or so afterward, Salich called at Gorin's home, found him busy, but saw him two or three days later, when he received the letter, written by Aliavdin introducing Gorin to Salich. At this meeting Gorin mentioned his interest in matters pertaining to Japanese activities and Japanese activities only. Salich told Gorin that he did not believe that he had any information which would be of benefit to anyone.

Salich reported the conversation to Roachefort. There was testimony that Roachefort ordered Salich to refrain from contacting Gorin. Salich testified that Roachefort told him to give Gorin such information as could be found in newspapers and periodicals, and try to obtain information from Gorin concerning the Japanese consulate. At any rate, after subsequent meetings and in March, 1938, Salich agreed to supply Gorin with certain information, on the theory that whatever information concerning the Japanese he gave to Gorin, it would benefit the United States as against the "common" enemy.

Davis was replaced as District Intelligence Officer on May 13, 1938 by one Zacharias. Roachefort was replaced as Assistant District Intelligence Officer on June 1, 1938.

Salich was in financial straits owing to marital difficulties and accepted a total of $1,700 from Gorin for the information supplied to Gorin. Salich testified that the money received by him was considered a loan. Salich gave to Gorin the substance of the information contained in some 43 reports as related in the yellow copies previously mentioned.

On September 30, 1938, a salesman for a dry cleaning establishment took a suit belonging to Gorin, and in a pocket of the suit the salesman found an envelope containing a sheet of paper and a $50 bill. The sheet of paper contained some typewriting and other writing. The salesman took the envelope to the Hollywood Police Station where a copy of the paper was made. The envelope and its contents were then given to Gorin's wife who had called at the cleaning establishment for it.

On December 10, 1938, several agents of the Federal Bureau of Investigation called at Salich's apartment and told him that they were making an investigation concerning information which he was supposed to have given Gorin. Salich agreed to, and did go to the office of the agents where he stated what he had done and identified the reports, the substance of which he had communicated to Gorin. The following day, Salich made a written statement containing some of the matters related above. Included in the statement was the following:

"Conscientiously and honestly I did not think that my actions, aside from being highly unethical, were inimical to the best interests of the United States, to which country I am extremely grateful for what it did for me and which country's citizenship I value * * *

"I sincerely state that at no time did I furnish Gorin any information which in my opinion would harm this country; on the contrary, I saw some reason to Gorin's argument that we had common cause, and by helping them I would also be indirectly helping our own cause * * *"

The reports mentioned above were not physically given to Gorin. Salich communicated the substance thereof to Gorin orally or in writing. The reports consisted principally of a relation of the movements of certain Japanese from one place to another, and activities thereof, such as photography, conferences and other matters. A few reports dealt with Japanese activities in Mexico, Mexican waters and Central America, and a few reports concerned alleged communists and their activities. None of the reports contained any information regarding the army, the navy, any part thereof, their equipment, munitions, supplies or aircraft or anything pertaining thereto. One report named a number of Japanese "suspected" of being interested in intelligence work. Most of them, on their face, appear innocuous, there being no way to connect them with other material which the Naval Intelligence may have, so that the importance of the reports does not appear.

As illustrative of the information contained in the reports, we quote the report to Gorin made by Salich, found in Gorin's suit by the cleaning establishment's salesman:

"George Ohashi, of San Diego, is reported to have made a statement at a JACL meeting that he was not a fascist. Couple other members, Paul Nakadate and George Suzuki took esception to this remark and accused George Ohashi of being a communist and subsequently beat him up.

"Ohashi and his wife own a beauty shop in San Diego which was found burglarized one day and the place searched.

* * * * * *

"Dr. M. M. Nakadate is dentis and is brother of Paul Nakadate.

"Their father is Y. Nakadate who lives in San Diego and who is listed in our cards as `radical — pro-Japanese'. Dr. N. M. Nakadate is borne in 1910; is member of United States Naval Reserve in dental corps and in 1935 did some training duty on board the USS Dorsey which is a destroyer. After completion of his sea duty he was attached to aviation unit of USNR, but because of his Japanese descent, it is evident, he is not being encouraged to continue his career with USNR.

"Bert Simmons a civilian employee on North Island, San Diego, which island houses Naval aviation. He was reported as a communist.

"The report, however, comes from a private watchman employed by Nick Harris Private Patrol. This watchman holds a dishonorable discharge from the Navy and it is believed that he made the report to ingratiate himself with the Navy. Report turned over to San Diego for further action."

One of the reports contained information regarding the activities of Japanese fishing boats, and of an acid said to have been deposited in salt water with which it reacted and caused a steel cable and a steel hull of a ship to be corroded through chemical action. This report was dated June 27, 1938. Practically everything which was contained...