195 F.2d 583 (2nd Cir. 1952), 137-138, United States v. Rosenberg

Docket Nº:137-138, 22201, 22202.
Citation:195 F.2d 583
Case Date:February 25, 1952
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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195 F.2d 583 (2nd Cir. 1952)




Nos. 137-138, 22201, 22202.

United States Court of Appeals, Second Circuit.

February 25, 1952

Argued Jan. 10, 1952.

Rehearing Denied in No. 22201 April 8, 1952.

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On January 31, 1951, the grand jury indicted Julius and Ethel Rosenberg, David Greenglass, Anatoli Yakolev and Morton Sobell for conspiring between 1944 and 1950 to violate 50 U.S.C. § 32 1 by combining to communicate to the Union of Soviet Socialist Republics documents, writings, sketches, notes and information relating to the national defense of the United States, with intent and reason to believe that they would be used to the advantage of the Soviet Union. Harry Gold and Ruth Greenglass were named in the indictment as conspirators but not as defendants, and a severance for trial purposes was granted as to David Greenglass, who pleaded guilty, and as to Anatoli Yakolev. The indictment listed ten overt acts done in furtherance of the conspiracy, including the receipt by Julius Rosenberg from Ruth Greenglass of a paper containing written information after a trip by Ruth to New Mexico, and the additional receipt by Julius from David Greenglass of a paper containing sketches of experiments conducted at the Los Alamos Project. Defendant Sobell made a motion for a bill of particulars. The government's answering affidavit charged Sobell with five overt acts made in furtherance of the conspiracy, all consisting of 'conversations' with Julius Rosenberg on various dates. The trial of the defendants, Julius and Ethel Rosenberg and Morton Sobell, in the United States District Court for the Southern District of New York, lasted fourteen days.

At the trial, witnesses for the government testified to the following: In November 1944, Ruth Greenglass planned a visit to her husband, David, stationed as a soldier in the Los Alamos atomic experimental station. Before her visit, Ethel and Julius Rosenberg, sister and brother-in-law of David Greenglass, urged Ruth to obtain from David specific information concerning the location, personnel, physical description, security measures, camouflage and experiments at Los Alamos. Ruth was to commit this information to memory and tell it to Julius upon her return to New York, for ultimate transmittal to the Soviet Union. David, reluctant at first, agreed to give Ruth the information Julius had requested. He told her the location and security measures of the station, and the

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names of leading scientists working there. When David returned to New York in 1945 on furlough, he wrote out a fuller report on the project for Julius, and sketched a lens mold used in the atomic experiment. A few mights later, at the Rosenberg home, the Greenglasses were introduced to Mrs. Sidorovich whom Julius explained might be sent as an emissary to collect information from David in New Mexico. It was agreed that whoever was sent would bear a torn half of the top of a Jello box which would match the half retained in Ruth's possession. Ethel Rosenberg, at this time, admitted her active part in the espionage work Julius was carrying on, and her regular typing of information for him. Julius introduced David to a Russian, who questioned David about the atomic-bomb operation and formula. In June 1945, Harry Gold arrived in Albuquerque with the torn half of the Jello box and the salutation, 'I come from Julius.' He had been assigned to the mission by Yakolev, his Soviet superior, and had, the day before his trip, met, pursuant to Yakolev's command, with Emil Fuchs, British scientist and Russian spy working at Los Alamos. David delivered to Gold information about personnel in the project who might be recruited for espionage, and another sketch of the lens mold, showing the basic principles of implosion used in the bomb construction. Gold relayed the information to Yakolev. On a revisit of the Greenglasses to New York, David turned over a sketch of the cross-section and a ten-page exposition of the bomb to Rosenberg. Ethel typed up the report, and, during this meeting, Julius admitted he had stolen a proximity fuse from a factory, and had given it to Russia. After the war, David went into business- a small machine-shop- with Julius, and Julius several times offered to send David to college on Russian money. Julius confided to David that he was helping the Russians subsidize American students, that he had contacts in New York and Ohio, and supplied information for siphoning to Russia, that he transmitted information to Russia on microfilm equipment, and that he received rewards for his services from the Russians in money and gifts. In 1950, Julius came to David and told him to leave the country immediately, since Dr. Fuchs, one of Gold's collaborators, had been arrested; he, Julius, would supply the money and the plan to get to Russia. A month later, after Gold's arrest, Julius repeated the warning to flee, adding that he and his family intended to do likewise, and giving David $1, 000. Julius said his own flight was necessitated by the fact that Jacob Golos, already exposed as a Soviet agent, and Elizabeth Bentley, probably knew him. Julius said he had made several phone calls to her and that she had acted as a go-between for him and Golos. Julius gave David an additional $4, 000 for the trip Julius had passport photos taken, telling the photographer that he and his family planned to leave for France. After David's arrest for espionage, Ethel asked Ruth to make David keep quiet about Julius and take the blame alone, since Julius had been released after admitting nothing to the F.U.I. In 1944, Julius several times solicited Max Elitcher, a Navy Department engineer, to obtain anti-aircraft and fire-control secrets for Russia, and in 1948 asked him not to leave his Navy Department job because he could be of use there in espionage. A month or so later Elitcher accompanied Sobell to deliver 'valuable information' in a 35-millimeter can to Julius.

According to the government's witnesses, Sobell, a college classmate of Rosenberg's suggested to Rosenberg that Elitcher would be a good source of espionage information, and he, Sobell, later joined Julius, in urging Elitcher not to leave the Navy Department. According to Julius, Sobell regularly delivered information for transmittal to Russia. Sobell (as noted above) delivered 'valuable information' to Julius on an emergency midnight ride after learning that Elitcher was being followed by the F.B.I. He asked Elitcher for a fire-ordinance pamphlet and for the names of young engineers who might supply military information to the Russians. In 1950, Sobell fled to Mexico, used various aliases there, and made inquiries about leaving Mexico for other countries. He was, however, deported from Mexico to the United States.

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The Rosenbergs took the stand and testified as follows: They had never solicited the Greenglasses for atomic information or participated in any kind of espionage work for Russia. Julius denied stealing a proximity fuse. He did not, he said, ever know Harry Gold or call Elizabeth Bentley. He admitted that he and David went into business together after the war, but said they did not enjoy good business relations. In 1950, David, according to Julius, excited, asked Julius to get a smallpox vaccination certificate from his doctor and to find out what kind of injections were necessary for entrance into Mexico. Ruth had told Julius that David stole things while in the Army, and Julius thought David was in trouble on this account. David asked for a few thousand in cash and, when Julius refused, told Julius he would be sorry. Julius denied that he gave David any money to flee, or had any passport pictures of his own family taken preparatory to flight. He never discussed anything pertaining to espionage with either Sobell or Elitcher although he saw both socially. In short, the Rosenbergs denied any and every part of the evidence which the government introduced in so far as it connected them with Soviet espionage. Sobell did not take the stand but he pleaded not guilty. At the end of the trial, the jury found the three defendants guilty as charged. The trial judge sentenced the Rosenbergs to death, and Sobell to thirty years' imprisonment.

Myles J. Lane, New York City (Roy M. Cohn, James B. Kilsheimer 3d and Stanley D. Robinson, all of New York City, of counsel), for United States of America.

Emanuel H. Bloch, New York City, for Julius Rosenberg and Ethel Rosenberg.

Harold M. Phillips and Edward Kuntz, New York City (Howard N. Meyer, New York City, of counsel), for Morton Sobell.

Before SWAN, Chief Judge, and CHASE and FRANK, Circuit Judges.

FRANK, Circuit Judge.

Since two of the defendants must be put to death if the judgments stand, it goes without saying that we have scrutinized the record with extraordinary care to see whether it contains any of the errors asserted on this appeal.

1. The Supreme Court has held that the Espionage Act of 1917 makes criminal, and subject to the prescribed penalties, the communication of the prohibited information to the advantage of 'any foreign nation, ' even if such communication does not injure this country. See Gorin v. United States, 312 U.S. 19, 29-30, 61 S.Ct. 429, 435, 85 L.Ed. 488, where the Court said: 'Nor do we think it necessary to prove that the information obtained was to be used to the injury of the United States. The statute is explicit in phrasing the crime of espionage as an act of obtaining information relating to the national defense 'to be used * * * to the advantage of any foreign nation.' No distinction is made between friend or enemy. Unhappily the status of a foreign government may change. The evil which the statute punishes is the...

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