United States v. Ebeling

• Decision Date: 11 December 1944
• Docket Number: No. 13.,13.
• Citation: 146 F.2d 254
• Parties: UNITED STATES v. EBELING.
• Court: U.S. Court of Appeals — Second Circuit

146 F.2d 254 (1944)

UNITED STATES v. EBELING.

No. 13.

Circuit Court of Appeals, Second Circuit.

December 11, 1944.

David S. Kumble, of New York City, for defendant-appellant.

Vine H. Smith, Asst. U. S. Atty., of Brooklyn, N. Y. (T. Vincent Quinn, U. S. Atty., of Brooklyn, N. Y., on the brief), for plaintiff-appellee.

Before SWAN, CLARK, and FRANK, Circuit Judges.

CLARK, Circuit Judge.

Ebeling appeals his conviction upon an indictment under two counts, the first charging a conspiracy under 18 U.S.C.A. § 88 to violate the provisions of 22 U.S.C.A. § 233, and the second charging a conspiracy under 50 U.S.C.A. § 34 to violate the provisions of 50 U.S.C.A. § 32. 22 U.S.C.A. § 233, originally passed in 1917 and now appearing in 22 U.S.C.A. § 601 with increased penalties, in substance makes it unlawful for any one other than a diplomatic or consular agent to act in the United States as an agent of a foreign government without prior notification to the Secretary of State. 50 U.S. C.A. § 32, § 2 of the Espionage Act of 1917 — quoted, together with 50 U.S.C.A. § 34, making its penalties also applicable to conspiracy, in United States v. Molzahn, 2 Cir., 135 F.2d 92, 93 note, certiorari denied Molzahn v. United States, 319 U.S. 774, 63 S.Ct. 1440, 87 L.Ed. 1721 — in substance makes it unlawful for any person to transmit, directly or indirectly, to any foreign government or agent thereof any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, note, instrument, appliance, or information relating to the national defense. The indictment named some thirty-three defendants, together with numerous other conspirators; of the defendants, all except fourteen pleaded guilty to one or both counts, while the fourteen were all convicted on both counts after a long trial. Defendant Ebeling was sentenced to imprisonment for two years, and to pay a fine of $1,000, on the first count, and to imprisonment for five years on the second count, the two terms of imprisonment to run concurrently. His appeal attacks the sufficiency of the evidence to sustain his conviction, as well as several rulings on the admission of evidence.

The extensive conspiracies as charged were alleged to have existed from August 1, 1936, to the time of the indictment, July 15, 1941. The testimony establishing the conspiracies is not before us, since, in order to shorten the record, the parties have entered into a stipulation whereby the defendant admits, for the purposes of appeal only, that the Government established at the trial "the existence of the conspiracy alleged in each count of the indictment without conceding that the Government has established the defendant Ebeling's connection with or participation in said conspiracies." The conspiracies centered about one Sebold, known to many of the defendants under his alias of Sawyer. Sebold, born in Germany, but naturalized as a citizen of the United States, had been approached when on a visit to Germany by agents of the German Reich, who requested him to obtain and transmit information of a character intimately relating to national defense. Sebold feigned compliance, but communicated with agents of the Federal Bureau of Investigation, and under their direction pretended to act with the German agents who had approached him and with others who later were placed in contact with him. We are told that the elaborate system of counterespionage thus undertaken went so far as to include the building of a radio transmitting station financed by the German Secret Service, but operated with full knowledge of the F. B. I. agents.

The testimony as to Ebeling showed that he had been employed since 1927 by the book publishers "Harper Brothers," and at this time was traffic department manager of Harper's subsidiary, Book Publishers Shipping Service, which shipped books and magazines of several publishers abroad. His business called upon him to obtain information relating to transatlantic sailings from a firm of freight forwarders, and the charges against him were that he transmitted such information to agents of the Reich. Sebold gave the substantial testimony against him, involving a meeting with him in New York City on June 10, 1941. During the conversation then had defendant took occasion to correct information already given by Clausing, another defendant, to the effect that the S.S. America was an auxiliary cruiser, not a troop ship, and he also corrected the name of another ship belonging to the Panama Railroad Line. "Then," as Sebold testified, "he said this coming week-end four steamers of the Prince Class of about 7,000 tons are leaving New York for London, and I should send that over as quick as possible — it was very important."

Defendant took the stand in his own behalf and admitted knowing some five of the defendants who had pleaded guilty to one or both counts of the indictment, with frequent contacts with some of them, who came to his home and his office, one in fact asking him for a statistical map showing export business from the United States to definite ports of the world for a certain year. Statements given by him to the F. B. I. agents shortly after his arrest also showed such contacts, as well as the meeting to which Sebold had testified.

The testimony given by Sebold, if believed, was clearly sufficient to connect this defendant with the conspiracies which stand here conceded. The necessary inference from the testimony is not only that defendant was passing on information he had acquired as to ship sailings, but that he knew of the information being given by other conspirators, so intimately in fact that he assumed the responsibility for correcting it, while asking for immediate transmission of his new information. Attack is now made on Sebold's testimony for claimed inconsistencies in his version of the meeting brought out on cross-examination; and it is claimed that the version given by defendant on the stand — admitting the meeting, but not the sinister portions of the conversation — must, therefore, be the true one. But these inconsistencies do not strike us as far-reaching; and, dealing with comparatively unimportant matters, such as how the conversation began, as they do, they may even have impressed the jury the more as showing an unrehearsed story maintained as to essentials. In any event, the issue of veracity was for the jury, which has settled it against the defendant. Nor is the point that the overt act charged in the first count against defendant — a meeting between him and a codefendant, Richard Eichenlaub, on June 10, 1941 — was not proven, well taken. The conspiracy now being conceded as proven, it was only necessary for the prosecution to show further that defendant had participated in it. Further, defendant's own statement (as well as his testimony) showed that "Dick," i.e., Eichenlaub, was present at the beginning of his conversation with Sebold.

Of the rulings on evidence, the one most challenged is the admission of defendant's statement given to the F. B. I. agent the day after his arrest, now claimed to be inadmissible under McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819. Another statement given the following day, June 30, 1941, was not objected to; therein defendant stated merely the version of the conversation which he later gave at the trial. There seem to us several reasons why the claimed error is not well taken. The only ground of objection then asserted was that no proper foundation had been laid for its receipt. Actually there was nothing in the statement itself to the prejudice of the defendant; its utility seems to have been limited — outside of his admission of contacts with other defendants, which he has never denied — to showing inconsistency with his later statement and testimony, for he then said that he had no conversation with the "stranger" whom he saw with others on the evening of June 10. There is no claim that the statement was forced; and the circumstances indicate his willingness to talk freely on both days. The McNabb rule was limited by United States v. Mitchell, 322 U.S. 65, 64 S.Ct. 896, seemingly to the situation where the statement was occasioned or caused by illegal detention, which was not the case here.

Finally, under our decision in United States v. Keegan, 2 Cir., 141 F.2d 248, it seems that the detention was not illegal. There we held that the prompt arraignment contemplated by the applicable statutes did not require arraignment on the Fourth of July or Sunday. Here defendant was taken into custody Saturday evening, June 28, 1941, was questioned for a time and then permitted to go to bed, was seen by the agent on Sunday beginning at 10:30 A. M., and the statement was dictated to a stenographer late that afternoon. We do not think there was delay sufficient to make the detention illegal, so that, for example, defendant could have claimed, or sued for, false imprisonment. Cf. United States v. Bell, D.C.S.D.Cal., 48 F.Supp. 986, 994; Janus v. United States ex rel. Humphrey, 9 Cir., 38 F.2d 431, reversing D.C. Idaho, 30 F.2d 530.

Error is assigned in the refusal of the court to admit in evidence Sebold's report to the F. B. I. of his activities on June 10, 1941. This report was not used by Sebold in his testimony; and when demand was made of the Government to produce it, the court inquired whether there was anything in it that would tend "to exculpate Ebeling" or "would be to his advantage." The United States Attorney then showed it to the court, which announced that it had read it and saw "no reason why the Government should be called upon to produce it," but that it could see "in the report reasons why it should remain a confidential document." Defendant took formal exception to the ruling, but did not then or later ask for its inspection or its incorporation in the record on appeal. He now relies on United States v. Krulewitch, 2 Cir., 145 F.2d 76, as...