185 F.2d 629 (2nd Cir. 1950), 86, United States v. Coplon

Docket Nº:86, 21790.
Citation:185 F.2d 629
Case Date:December 05, 1950
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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185 F.2d 629 (2nd Cir. 1950)




Nos. 86, 21790.

United States Court of Appeals, Second Circuit.

December 5, 1950

Argued Nov. 2, 1950.

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Samuel A. Neuburger, Sidney S. Berman, and Leonard B. Boudin, New York City, for appellant.

Fred E. Strine, Washington, D.C., James M. McInerney, Asst. Atty. Gen., Irving H. Saypol, U.S. Atty., New York. (Raymond P. Whearty, Special Asst. to the Atty. Gen., Rosalie M. Moynahan, Atty., Department of Justice, Washington D.C., of counsel), for appellee.

Before L. HAND, Chief Judge, and SWAN and FRANK, Circuit Judges.

L. HAND, Chief Judge.

The appellant, Judith Coplon, was convicted of an attempt to deliver 'defence information' to a confederate, Gubitchev (Count 4); and she and he were convicted of conspiring to defraud the United States by making copies of documents relating to the national defence, by transmitting them to Gubitchev, and by removing and concealing them (Count 1). She was acquitted on a count, similar to Count 4, of attempting to transmit the same documents to Gubitchev (Count 2). The principal points raised upon the appeal are three: (1) the competence as evidence of certain documents found upon her person when she was arrested; (2) whether the prosecution proved that 'taps' of her wires, conceded to have been made, did not 'lead' to any part of the evidence on which she was convicted; (3) whether she was cut short in her effort to prove that telephone talks to which she was a party had been intercepted before the time when the conceded 'taps' began to be made. One or two other questions we shall summarily discuss in advance of these; but it will first be necessary to state an outline of the evidence that was before the jury.

Judith Coplon had been employed by the United States Department of Justice in New York from June 15th, 1943, until January 16th, 1945, when she was transferred to Washington to the position of 'political analyst' in the 'Section' which

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had charge of the registration of foreign agents. Reports of agents of the Federal Bureau of Investigation concerning 'internal security' did not come to this section but to another, the Internal Security Section, to which in October, 1948, she was temporarily assigned for the examination of some of such reports. She continued at this until the beginning of 1949, by which time one, Foley, who was in charge both of the registration and the security sections had been told that she was under suspicion. Foley put an end to her work in the security section and thereafter confined her to the registration section. She protested against this as a slight upon her ability, and early in February went to her successor in the security section, asked to see some of the reports that were filed there, and took away some of them; and soon afterwards she asked the successor to send her any such reports that concerned foreign embassies or the like, particularly any relating to Russian agents. Early in January Foley mentioned to her a report about Russian agents which she twice asked to see, but which he each time refused to show her because it was a 'top secret.' The other and most important part of the evidence upon which she was convicted consisted of three trips to New York, the first, on January 14th; the second, on February 18th; and the third on March 4th. In each case she announced her intention in advance to Foley and got his consent; and on each she was shadowed by agents of the Federal Bureau of Investigation, who managed to keep her pretty continually, though not always, under observation. On the first trip she met Gubitchev, obviously by prearrangement, and they were together for some time, but, so far as any of the agents could see, no papers passed from her to him. The second meeting was in the same general locality as the first- upper Broadway in Manhattan- and again the agents saw nothing pass, although at one time Gubitchev seemed to reach in front of her body and may have got his hand in her purse which was open. The third meeting did not greatly differ from the other two, except that both appeared to be acting with even more circumspection than before. At about 9:30 P.M. they were both arrested without a warrant; and, when her purse was opened, there was found in it a sealed packet containing many incriminating documents, which she would almost certainly not have been carrying to such an interview, were she not intending to pass them to Gubitchev. On all three occasions the two had wandered aimlessly about, meeting, separating, rejoining, going hither and yon, continually looking back, and in general giving every appearance of persons who thought they might be shadowed and wished to escape being trailed.

Among the documents in the packet was a decoy letter prepared by one, Lamphere, an agent of the Bureau, which professed to give information about the Russian trading corporation, 'Amtorg, ' and which Foley had given her on March 4th, telling her that it was 'hot and interesting.' Besides the decoy, the documents included many 'data slips': i.e. abstracts, made by her upon typewriters in her possession, or to which she had access, of records prepared by agents of the Federal Bureau of Investigation, for the most part those on file in the Internal Security Section. In most cases these related to the activities of persons in the United States, who were, or were suspected to be, acting on behalf of the Soviet Union, or one of its satellites. Finally, there was a statement typed by her saying that she had unsuccessfully tried to see the 'top secret' report which, as we have said, Foley had refused to show her. All these documents, taken with the repeated instances in which she had shown an insistent wish to get access to such records, and with her meetings in New York, made out a case which must have satisfied any fair minded jury that she was engaged in the conspiracy with which she was charged; and that, when the right moment came, she meant to pass the packet to Gubitchev. Indeed, it does not appear why she had not already done so before her arrest, as the agents presumably supposed that she had.

Because the arrest in this way interrupted the consummation of the crime,

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one point upon the appeal is that her conduct still remained in the zone of 'preparation, ' and that the evidence did not prove an 'attempt.' This argument it will be most convenient to answer at the outset. A neat doctrine by which to test when a person, intending to commit a crime which he fails to carry out, has 'attempted' to commit it, would be that he has done all that it is within his power to do, but has been prevented by intervention from outside; in short, that he has passed beyond any locus poenitentiae. Apparently that was the original notion, and may still be law in England; but it is certainly not now generally the law in the United States, for there are many decisions which hold that the accused has passed beyond 'preparation, ' although he has been interrupted before he has taken the last of his intended steps. The decisions are too numerous to cite, and would not help much anyway, for there is, and obviously can be, no definite line; but Judge Cullen's discussion in People v. Sullivan, 1 and Mr. Justice Holmes' in two Massachusetts decisions, 2 are particularly enlightening. In the second of the Massachusetts opinions Holmes, J., said: 'Preparation is not an attempt. But some preparations may amount to an attempt. It is a question of degree. If the preparation comes very near to the accomplishment of the act, the intent to complete it renders the crime so probable that the act will be a misdemeanor, although there is still a locus poenitentiae, in the need of a further exertion of the will to complete the crime.' We have found scarcely any decisions of federal courts, but, so far as they go, they are in accord. 3 There can be no doubt in the case at bar that 'preparation' had become 'attempt.' The jury were free to find that the packet was to be delivered that night, as soon as they both thought it safe to do so. To divide 'attempt' from 'preparation' by the very instant of consummation would be to revert to the old doctrine.

We find it necessary to discuss only one of the remaining supposed errors, before taking up the arrest and the 'wiretapping, ' and that is the inconsistency between the acquittal on Count 2 and the conviction on Count 4. The argument is that, if the acquittal would have been res judicata, had the trials been at different times, it was an adjudication when the verdicts were simultaneous. That is an error; when at the same trial a jury renders inconsistent verdicts of acquittal and conviction, the inconsistency is immaterial and the conviction will stand. 4 The Supreme Court in Dunn v. United States, supra, 284 U.S. at page 393, 52 S.Ct. at page 190, 76 L.Ed. 356, adopted what we said in Steckler v. United States, supra, 7 F.2d at page 60: 'We interpret the acquittal as no more than their'- the jury's- 'assumption of a power which they had no right to exercise, but to which they were disposed through lenity.' And later, in Dotterweich v. United States, supra, 320 U.S. at page 279, 64 S.Ct. at page 135, 88 L.Ed. 48, the Court said: 'Whether the jury's verdict was the result of carelessness or compromise * * * is immaterial. Juries may indulge in precisely such motives or vagaries.'

Thus there remain for consideration only the three main questions which we mentioned at the outset, of which the first is whether the arrest on March 4th was valid. Upon its validity concededly depends the validity of the seizure of the incriminating packet and of its competence as evidence at the trial. In the absence

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of some controlling federal law the validity of an arrest...

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