United States v. Enger

• Decision Date: 25 August 1978
• Docket Number: Crim. No. 78-149.
• Citation: 472 F. Supp. 490
• Parties: UNITED STATES of America v. Valdik Aleksandrovich ENGER and Rudolf Petrovich Chernyayev, Defendants.
• Court: U.S. District Court — District of New Jersey

472 F. Supp. 490

UNITED STATES of America v. Valdik Aleksandrovich ENGER and Rudolf Petrovich Chernyayev, Defendants.

Crim. No. 78-149.

United States District Court, D. New Jersey.

August 8, 1978.

On Motion for Reconsideration August 25, 1978.

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Robert J. Del Tufo, U. S. Atty., Edward J. Plaza, Asst. U. S. Atty., Newark, N. J., for plaintiff.

Martin Popper, Donald N. Ruby, Wolf, Popper, Ross, Wolf & Jones, New York City, for defendants.

MEMORANDUM OPINION

LACEY, District Judge.

The defendants, citizens of the Union of Soviet Socialist Republics, are charged in a three-count indictment with conspiracy to violate 18 U.S.C. ?? 793(g) and 793(a) and aiding and abetting in violation of 18 U.S.C. ?? 793(b) and 2.¹ They are now before the court on a variety of motions, which I shall consider in the order in which they are raised by the defendants' memorandum of law.

I.

The defendants have moved for dismissal of the indictment, contending they are entitled to the protection of diplomatic immunity.

The factual predicate for the defendants' claim of immunity rests primarily on letters submitted to the court on behalf of the defendants by the U.S.S.R. Ambassador to the United States, Hon. Anatoly F. Dobrynin, and Hon. Erik Suy, Legal Counsel to the United Nations. Defendants themselves have filed no affidavits in their own name. Hence there are here lacking facts explaining why their United Nations vocations required their presence in New Jersey, or a contention by the defendants that they were not in New Jersey at the times alleged by the United States.

Ambassador Dobrynin's letters, attached as Exhibit A to the defendants' notice of motion, are formal claims of immunity by the U.S.S.R. An identical claim of immunity is made for each of the defendants. The following is the complete text of each letter:

CLAIM OF DIPLOMATIC IMMUNITY

I, Anatoly F. Dobrynin, Ambassador of the Union of Soviet Socialist Republics to the United States of America, hereby have the honor to draw your attention to the fact that the Soviet Citizen Rudolf Petrovich Chernyayev has a diplomatic rank of Second Secretary conferred on him in accordance with the provisions based on the decree of the Presidium of the U.S.S.R. Supreme Soviet of May 28, 1943.

The Government of the Soviet Union made available the services of Mr. Chernyayev as an Administrative Officer in the United Nations Secretariat, and Nr. Chernyayev accepted this post with the knowledge and consent of the Government of the Soviet Union.

Mr. Chernyayev arrived in the United States in May, 1974, having a Soviet diplomatic passport no. 015793 and since that time has been attached to the Secretariat of the United Nations.

The Secretariat of the United Nations at all these times had knowledge of the fact that Mr. Chernyayev retained and retains at the present time his diplomatic rank.

I hereby, in the name of the Government of the Union of Soviet Socialist Republics and in conformity with the applicable principles of international law claim immunity from arrest and prosecution on behalf of Rudolf Petrovich Chernyayev and respectfully request that the Indictment against him be dismissed.

Anatoly F. Dobrynin (signature) Anatoly F. Dobrynin Ambassador

CLAIM OF DIPLOMATIC IMMUNITY

I, Anatoly F. Dobrynin, Ambassador of the Union of Soviet Socialist Republics to the United States of America, hereby have the honor to draw your attention to the fact that the Soviet Citizen Valdik Aleksandrovich Enger has a diplomatic rank of Second Secretary conferred on him in accordance with the provisions based on the decree of the Presidium of the U.S.S.R. Supreme Soviet of May 28, 1943.

The Government of the Soviet Union made available the services of Mr. Enger in the office of Political and Security Affairs at the United Nations Secretariat, and Mr. Enger accepted this post with the knowledge and consent of the Government of the Soviet Union.

Mr. Enger arrived in the United States in December 1973 having a Soviet diplomatic passport no. 012841 and since that time has been attached to the Secretariat of the United Nations.

The Secretariat of the United Nations at all these times had knowledge of the fact that Mr. Enger retained and retains at the present time his diplomatic rank.

I hereby, in the name of the Government of the Union of Soviet Socialist Republics and in conformity with the applicable principles of international law claim immunity from arrest and prosecution on behalf of Valdik Aleksandrovich Enger and respectfully request that the Indictment against him be dismissed.

Anatoly F. Dobrynin (signature) Anatoly F. Dobrynin Ambassador

The Dobrynin letters do not contend that either defendant is, or at any material time was, duly designated by the U.S.S.R. to serve as its representative to the United Nations, that either is or was on the staff of the U.S.S.R. delegation to the United Nations, or that either ever performed or was ever assigned to perform any diplomatic duties on behalf of the U.S.S.R. in its relations with the United States (or any other government) while residing in this country. Instead, the letters do not go beyond stating that the defendants, from the time of their separate arrivals in the United States from the U.S.S.R., have been "attached to the Secretariat of the United Nations," while retaining their diplomatic ranks as conferred on them by their government.

The nature of their employment with the United Nations is set forth in the letter of The Legal Counsel to the United Nations, dated June 23, 1978, attached as Exhibit B to the defendants' notice of motion. The following is the full text of Mr. Suy's letter:

I wish to refer to your request for certain information regarding two officials of the United Nations Secretariat, Mr. Valdik Enger and Mr. Rudolf Chernjaev (sic).

I understand your request to relate to the officials' titles and functions, as well as to their official status, within the United Nations Secretariat.

In respect of Mr. Enger, I wish to inform you that his title is "Political Affairs Officer", and that his grade is P-4. For your information I recall that the ranks of the Secretariat's professional staff is as follows in descending order:

Secretary-General

Under-Secretary-General

Assistant Secretary-General

Director 2

Director 1

Professional 5

Professional 4

Professional 3

Professional 2

Professional 1 In addition there are other categories of staff, generally of lower rank, such as general service staff, manual workers and guards.

As far as Mr. Enger's functions are concerned, I wish to advise that he was appointed a member of the Unit for Coordination and Political Information, Office of the Under-Secretary-General for Political and Security Council Affairs. A comprehensive description of the responsibilities and functions of that unit is set out in the relevant part of the Secretary-General's bulletin concerning the organization of the Secretariat, namely ST/SGB/Organization, Section I (and Amendment 1), Department of Political and Security Council Affairs, a copy of which is enclosed.

In respect of Mr. Chernjaev (sic) I wish to inform you that his title is "Administrative Officer", and that his grade is P-3. He was appointed a member of the Training and Examinations Service, Office of Personnel Services. A comprehensive description of the responsibilities and functions of the Training and Examinations Service is contained in the relevant part of the Secretary-General's bulletin on the organization of the Secretariat namely, ST/SGB/Organization, Section P(II), Office of Personnel Services, a copy of which is enclosed.

As far as the present employment status of Mr. Enger and Mr. Chernjaev (sic) is concerned, I wish to advise that pending the action against them in the United States District Court for New Jersey they are placed on special leave with full pay, but that they remain officials of the Secretariat.

Sincerely, Erik Suy (signature) Erik Suy The Legal Counsel

The attachments to the Suy letter indicate that the responsibilities of the defendants, in their employment with the United Nations, include the following.

The defendant Enger is a Political Affairs Officer attached to the Unit for Coordination and Political Information, Office of the Undersecretary General for Political Information. The responsibilities of the Department of Political and Security Counsel Affairs are described, as follows:

Provides secretariat services for the Security Council and its subsidiary bodies, including the Committee established in pursuance of Security Council resolution 253 (1968), the Committee of Admission of New Members, the Military Staff Committee, the Committee on Council Meetings away from Headquarters, the Ad Hoc Sub-Committee on Namibia, and for the First Committee and the Special Political Committee of the General Assembly and other General Assembly committees and bodies concerned with matters relating to the maintenance of international peace and security;

Provides secretariat services for the Conference of the Committee on Disarmament;

Follows, in accordance with Article 54 of the Charter, the activities of regional agencies pertaining to the maintenance of international peace and security;

Assists the Secretary-General in the discharge of his political responsibilities under the Charter and in pursuance of resolutions of United Nations organs.

The functions of the Unit for Coordination are described, as follows:

Assists in departmental co-ordination, programme planning and monitoring and evaluation of plan implementation;

Maintains relations with regional organizations, with the Office for Inter-Agency Affairs and Co-ordination and other units of the Secretariat and with the United Nations Institute for Training and Research and follows activities on non-governmental organizations relating to political questions;

Participates in sessions of the

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