United States v. Drummond

Decision Date02 December 1965
Docket NumberNo. 310,Docket 28710.,310
Citation354 F.2d 132
PartiesUNITED STATES of America, Appellee, v. Nelson Cornelious DRUMMOND, Appellant.
CourtU.S. Court of Appeals — Second Circuit

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John S. Martin, Jr., Asst. U. S. Atty. (Robert M. Morgenthau, U. S. Atty., Andrew T. McEvoy, Jr., Vincent L. Broderick, Asst. U. S. Attys.), for appellee.

Orison S. Marden, New York City, (Anthony F. Marra, Charles Nelson Brower, P. B. Konrad Knake, Jr., New York City), for appellant.

Before LUMBARD, Chief Judge, and WATERMAN, MOORE, FRIENDLY, SMITH, KAUFMAN, HAYS and ANDERSON, Circuit Judges.

Submitted to the in banc Court May 26, 1965.

KAUFMAN, Circuit Judge.

On this appeal, which raises multiple challenges to the conviction of Nelson Cornelious Drummond for conspiracy to violate the Federal Espionage Act, we are called upon to decide whether the trial court wrongly admitted into evidence inculpatory statements made by the defendant during periods prior to and following his arraignment in which he was allegedly denied the assistance of counsel and thus deprived of rights secured to him under the Sixth Amendment to the Constitution. Because this appeal raises vital questions of judicial administration of the criminal law requiring interpretation of Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), and Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), we directed consideration in banc.

Count 1 of the indictment charged Drummond with conspiracy to deliver national defense documents to four named agents of the Soviet Union in violation of the Federal Espionage Act, 18 U.S.C. § 794(c). Count 2 charged an attempt to deliver such documents to the agents in violation of 18 U.S.C. § 794(a). Drummond's first trial ended in a mistrial when the jury was unable to reach a verdict on either count. In his second trial, the jury found Drummond guilty of the conspiracy charge of Count 1 but was unable to reach a verdict on Count 2. District Judge Murphy sentenced Drummond to life imprisonment.

Subsequent to his conviction, Drummond moved for a new trial under Fed. R.Crim.P. 33 on grounds that newly discovered evidence showed his arrest to have been in violation of the Fourth Amendment to the Constitution, and that items seized on arrest and inculpatory statements made after arrest were therefore "tainted" and inadmissible at trial. Judge Murphy denied the motion.

In addition to the asserted denial of counsel, Drummond's appeal from his conviction raises two other grounds for reversal: (1) the jury was erroneously charged with respect to the question of whether the conspiracy pertained to documents "relating to national defense"; and (2) the trial court failed to charge the jury that the requirements for a finding of treason, as set forth in Article III, Section 3 of the United States Constitution, must be met in a case of this kind, and the evidence failed to meet such requirements.

Drummond's appeal from the judgment of conviction and the District Court's denial of the motion for a new trial are consolidated here. We have examined the record in this espionage case resulting in a life sentence with extraordinary care. We affirm Drummond's conviction and the District Court's denial of the motion for a new trial. We conclude that the inculpatory statements in this case were properly received in evidence. We find no merit in Drummond's other challenges to the trial court's evidentiary ruling and charge.

I. THE EVIDENCE

The record describes a tawdry scheme of espionage for hire. Over a period of five years, from 1957 to 1962, while on duty with the U. S. Navy in Europe and the continental United States, Drummond passed classified military materials to Soviet agents in return for payments totaling $24,000. The scenario is replete with the cliches of international intrigue: furtive meetings, night chases, secret surveillance, spy props.1

The evidence crucial to Drummond's conviction was largely derived from his own admissions following arrest and preceding trial. In late 1957, Drummond was approached by a Soviet agent while on duty with the United States Navy in London. At the time Drummond was heavily in debt, and the agent exploited his knowledge of Drummond's financial difficulties to enlist him as a spy for the Soviet Union. Drummond first procured a Navy identification card for the Soviet agent and was paid 250 pounds. Once committed, Drummond regularly supplied various Soviet contacts with classified documents from the files of the Eastern Atlantic and Mediterranean Headquarters of the United States Navy in London. On one occasion, plagued by debt, he actively sought out his contacts at the U. S. S. R. Embassy and was severely reprimanded by a Soviet agent.

In the spring of 1958, Drummond was investigated by the office of U. S. Naval Intelligence, but, forewarned by his Russian contacts, he halted his espionage activities temporarily and escaped detection. Shortly thereafter he was reassigned to the United States. Establishing contact with the United States branch of the Soviet espionage network, Drummond continued passing classified documents for the next four years. His intermediary was one Esther Katz, whom he telephoned when he wished to contact the Soviet agents. He met regularly at prearranged rendezvous points in the metropolitan New York area with three Soviet agents attached to the Soviet Mission to the United Nations, Mikhail Stepanovich Savelev, Vadim Vladimirovich Sorokin, and Evgeni Mikhailovich Prokhorov (each known to Drummond only as "Mike"), who supplied him with special tools of the espionage trade: hollowed-out magnets, miniature cameras, flash paper, invisible writing materials.

During this period Drummond regullary removed and sold to the Soviets documents from the classified files of the U. S. S. Caperton, under repair in the Boston Navy Yard, and, after May 1960, from Mobile Electronics Technical Unit Number 8, located at Newport, Rhode Island, to which he was assigned as a Yeoman First Class, processing and filing classified documents including those designated "COSMIC Top Secret."2

Living beyond his legitimate earnings, Drummond received payments averaging $500 for each delivery of classified documents, which he used to repay heavy personal debts. In November 1961, on demand, he received a special payment of $6,000 from his Soviet contact with which he purchased a bar and grill in Newport, Rhode Island. He received a second special payment of $4,000 in August 1962. On several occasions, Drummond openly sought out his Russian contacts at their United Nations offices. As in London, he was reproached for his recklessness.

The F. B. I. began surveillance of Drummond on August 13, 1962. That day, an F. B. I. agent observed him driving toward New York City on the New York Thruway and later entering an apartment building on Central Park West. On September 7 and 8, Drummond was observed travelling between the Newport Naval Base and New York City. On September 8, an F. B. I. agent photographed one of the Soviet agents in the same apartment building. Between September 6 and 9, F. B. I. agents searched Drummond's office at Newport and found four classified documents missing. On September 9, the agents searched Drummond's car and discovered eleven classified documents, including the missing four. Based on these observations, the F. B. I. obtained an arrest warrant charging Drummond with conspiracy to commit espionage.

On September 28, 1962, after close of the workday, two F. B. I. agents monitoring Drummond's office through a closed-circuit television device and one agent hiding behind a bookcase in the office observed Drummond removing papers from a classified file and placing them in his carrying case. He then entered his car and drove on the Connecticut Turnpike and Boston Post Road to a diner in Larchmont, New York, where he was met by Soviet agent Prokhorov and another member of the Soviet Mission to the United Nations. After observing the three men converse for a few minutes, F. B. I. agents on the scene placed Drummond under arrest. A search of his car incident to the arrest disclosed a loaded pistol and a number of classified national defense documents, including manuals for installation and maintenance of anti-submarine guided missiles, electric bomb fuses, and aircraft bombs. A list identifying the various documents was found on Prokhorov. Experts at trial testified that these documents could be used by hostile governments to develop counter measures which might neutralize American weapons systems or even redirect their courses to destroy United States installations. Information contained in the documents could also be utilized to modify an enemy's electronic equipment so it could operate beyond the range of American detection instruments.

Drummond took the witness stand in his own defense and admitted many of the meetings with the Soviet agents. He acknowledged the delivery of various defense documents to Soviet agents in return for more than $20,000, but insisted that none of the documents contained information known to him to be classified, claiming instead that he believed they had actually been declassified without the change being noted on the papers. He denied that he had removed from Navy files the documents found in his car by the F. B. I. the night of his arrest. He admitted removing other documents from Navy files earlier that evening but contended that he planned to use them to lure Soviet agents into his car in order to murder them.

The guilty verdict on the conspiracy count demonstrates that the jury rejected the incredible concoction that the documents delivered over a period of more than four years were of no value to the Soviets, and that the Russians...

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