Coplon v. United States

• Decision Date: 01 June 1951
• Docket Number: 10801.,No. 10339,10339
• Parties: COPLON v. UNITED STATES (two cases).
• Court: U.S. Court of Appeals — District of Columbia Circuit

191 F.2d 749 (1951)

COPLON v. UNITED STATES (two cases).

Nos. 10339, 10801.

United States Court of Appeals District of Columbia Circuit.

Argued November 30, 1950.

Decided June 1, 1951.

Leonard B. Boudin, of the Bar of the Supreme Court of New York, pro hac vice, New York City, by special leave of Court, with whom Max L. Rosenstein, Newark, N. J., was on the brief, for appellant.

Fred E. Strine, Special Asst. to the Atty. Gen. with whom Mr. George Morris Fay, United States Atty., Miss Rosalie M. Moynahan, Attorney, Department of Justice, Washington, D. C., and Mr. John M. Kelley, Jr., Special Asst. to the Atty. Gen., were on the brief, for appellee. Mr. Joseph M. Howard, Asst. United States Atty., Washington, D. C., also entered an appearance for appellee.

Before WILBUR K. MILLER, PRETTYMAN and PROCTOR, Circuit Judges.

WILBUR K. MILLER, Circuit Judge.

A grand jury in the District of Columbia returned a two-count indictment against Judith Coplon on March 16, 1949.

The first count charged that from about December 10, 1948, to March 4, 1949, the appellant copied, took, made and obtained documents, writings and notes which were parts of the official files and records of the Department of Justice containing intelligence reports relating to espionage and counter-espionage activities, for the purpose of obtaining information respecting the national defense and with intent and reason to believe that it would be used to the injury of the United States and to the advantage of a foreign nation, in violation of 18 U.S.C. § 793.

The second count charged that during the same period the appellant, being an employee of the Department of Justice and as such having custody of records, documents and papers filed with the Department, willfully and unlawfully concealed and removed therefrom certain extracts and summaries of reports of the Federal Bureau of Investigation containing intelligence data relating to espionage and counter-espionage activities, in violation of 18 U.S.C. § 2071.

After a trial which lasted about two and one-half months, the young woman was found guilty on both counts on June 30, 1949, by a jury in the United States District Court for the District of Columbia, and on July 1 was sentenced to imprisonment for ten years on the first count and three years on the second, to run concurrently. She appeals.

Judith Coplon became an employee of the Department of Justice in New York City on June 15, 1943. On January 16, 1945, she was transferred to Washington, D. C., as a political analyst in the Foreign Agents Registration Section of the Department. The function of that section is to administer the Foreign Agents Registration Act,^* to obtain the registration thereunder of persons subject to its provisions, to review for accuracy and compliance with statutory requirements registration statements filed by such persons, and to review propaganda filed in accordance with the Act.

In October, 1948, the appellant was assigned to the Internal Security Section to examine F. B. I. reports relative to the activities of Russian agents or Communists so as to determine whether there was any indication of a violation of federal law. William E. Foley, who was head of the Foreign Agents Registration Section and of the Internal Security Section as well, testified that early in January, 1949, the appellant discussed with him reports concerning certain Russian agents in the United States. When he mentioned that he had received an additional report on that subject, appellant asked if and when she could see it and Foley replied that it was top secret. A week later appellant again asked him when she could see the top secret report and was told that he did not know. About a month later appellant visited Foley's office and for the third time asked to see the top secret report. Foley replied that it had passed into the custody of another official.

On or about February 1, 1949, Foley, having been informed that appellant was under suspicion, directed her no longer to examine internal security reports. A new employee was assigned to that task. Appellant objected to giving up this work and told Foley she was very disturbed over the change. Soon after a Mrs. Rosson had taken over such work, appellant visited her successor's office, said she wanted to look through the F. B. I. reports, and removed some of them. A few days later appellant again went to Mrs. Rosson's office and asked that she send her "any reports relating to foreign embassies, legations, or consulates, and especially the reports that were marked `Internal Security — R.'" Mrs. Rosson sent appellant some fifty reports of that nature.

The appellant went to New York City on January 14, 1949, first informing Foley that she intended to do so. Because she was under suspicion, F. B. I. agents followed her and observed her movements. She reached New York about 5:00 p.m. and, after following a circuitous route to Broadway and 193rd Street, she was joined there shortly after 7:00 p.m. by a man afterwards identified by the F. B. I. agents as Valentin A. Gubitchev, a Russian national employed by the United Nations. She and Gubitchev were together for some time, during which their movements were such as to indicate they were trying to elude observers.

Again on February 18, 1949, Judith Coplon went to New York and met Gubitchev. Once more they engaged in furtive behavior for a considerable period of time. During the surveillance by the F. B. I. agents that evening, while the two were on Broadway near 192nd Street, the appellant was seen to reach into her open purse and at that time Gubitchev, who had been behind, stepped up beside her and reached in front of her with his right arm. After a few steps together, he stopped and the appellant continued walking.

On the afternoon of March 3, 1949, appellant informed her superior, Foley, that she intended to leave for New York the next day on the 1:00 p.m. train. Late in the afternoon of March 3, Peyton Ford, The Assistant to the Attorney General, handed to Foley three office memoranda, one of which was marked "Strictly Confidential" and had as its subject "Amtorg Trading Corporation Internal Security — R." The memorandum referred to the efforts of Amtorg to obtain equipment relative to atomic research and expressed the Department's intention of determining whether Amtorg was sending out of the United States information and equipment relative to that highly secret subject. Foley did not know, but may have suspected, that this memorandum was to be used to ascertain what appellant would do with it. About 9:00 a.m. the next day, March 4, Foley handed the memorandum to appellant, telling her that it was "quite hot and very interesting."

The appellant left for New York on the 1:00 o'clock train according to plan and reached there about 5:00 p.m. The testimony of the agents who kept her under surveillance for four hours thereafter discloses the most remarkable conduct on the part of Judith Coplon and Valentin Gubitchev. They met, separated, met again; they travelled on foot, by subway and by bus, sometimes together and sometimes separately. At all times the two acted in a furtive manner, apparently taking the greatest care to elude any persons who might be following them. They wandered from as far uptown as Broadway and 193rd Street to a point on Third Avenue between 15th and 16th Streets. There they were arrested by an F. B. I. agent at 9:35 p.m.

A number of items found in appellant's purse after her arrest were introduced in evidence, including twenty-two data slips which were memoranda of information contained in F. B. I. reports on file in the Department of Justice. Another document consisted of four pages typed on appellant's portable typewriter. It was dated March 3, 1949, and included the following paragraph:

"I have not been able (and don't think I will) to get the top secret FBI report which I described to Michael on Soviet & Communist Intelligence Activities in the US. When the moment was favorable, I asked Foley where the report was (He'd previously remarked that he'd had such a report); he said that some department official had it and he didn't expect to get it back. Foley remarked there was nothing `new' in it. When I saw the report, for a minute, I breezed through it rapidly, remember very little. It was about 115 pages in length; summarized first Soviet `intelligence' activities, including Martens, Lore, Poyntz, Altschuler, Silvermaster et al. It had heading on Soviet UN delegation but that was all I remember. The rest of the report I think was on Polish, Yugo, etc. activities and possibly some info on the CP, USA."

Among other papers taken from her purse and introduced in evidence was a two-page memorandum in appellant's handwriting concerning the contents of the "quite hot and very interesting" memorandum of March 3 from The Assistant to the Attorney General which was handed to Foley late in the afternoon of March 3 and given to Judith Coplon on the morning of March 4.

The appellant's principal reliance for reversal is that her arrest in New York on March 4, 1949, was illegal, that the subsequent seizure of documents from her purse was in violation of the Fourth Amendment and that, therefore, certain of those documents which were introduced in evidence against her were inadmissible.

We agree with the following comment concerning the arrest, and the circumstances in which it was made:¹

"* * * The Bureau knew that she had twice been in contact with a Russian, who it was fair to suppose was an emissary of the Soviet Union of one kind or another. Their meetings had given every appearance of furtiveness and fear of apprehension. She had manifested a persistent interest in secret reports of the Bureau regarding Russia which was somewhat sinister in one of her position. On March 4th she was apparently prolonging her third meeting with Gubitchev quite unnecessarily, unless it were to find a moment for some critical action;...