United States v. Melekh

• Decision Date: 28 November 1960
• Citation: 190 F. Supp. 67
• Parties: UNITED STATES of America v. Igor Y. MELEKH, also known as Peter Stephens and also known as "Gipsy," and Willie Hirsch, also known as John Gilmore, Defendants.
• Court: U.S. District Court — Southern District of New York

190 F. Supp. 67

UNITED STATES of America v. Igor Y. MELEKH, also known as Peter Stephens and also known as "Gipsy," and Willie Hirsch, also known as John Gilmore, Defendants.

United States District Court S. D. New York.

November 28, 1960.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

S. Hazard Gillespie, Jr., U. S. Atty., for Southern Dist. of New York, New York City, for the United States. Silvio J. Mollo, Robert B. Fiske, Jr., John A. Guzzetta, New York City, of counsel.

William W. Kleinman, Brooklyn, N. Y., for defendant Melekh.

David M. Freedman, New York City, for defendant Hirsch.

HERLANDS, District Judge.

Nature of the Proceedings

These proceedings seek the removal of the defendants Igor Y. Melekh and Willie Hirsch to the United States District Court for the Northern District of Illinois, Eastern Division, there to answer a three-count indictment (No. 60 Cr. 529) filed against them on October 27, 1960.

The Indictment Against the Defendants

The first count of the indictment, hereinafter referred to as "the Illinois indictment," charges a conspiracy to violate Title 18 U.S.C.A. § 793. Part of the alleged conspiracy was to obtain information respecting the national defense of the United States of America by receiving and obtaining documents, sketches, photographs, maps and information concerning various places and military installations connected with the national defense, for delivery to the Union of Soviet Socialist Republics, with the knowledge and intent that those materials would be used to the advantage of that foreign nation.

It was a further part of the alleged conspiracy, according to the indictment, that the defendants would induce a United States citizen to obtain information relating to the national defense of this country, with the intent and reason to believe that the information would be used to the advantage of the Union of Soviet Socialist Republics; that the defendant Melekh would employ, supervise, and pay individuals for the purpose of so obtaining, delivering and transmitting such information; and that the defendant Melekh would devise a clandestine method of arranging meetings with individuals to whom he had given assignments to collect information relating to the national defense of this country. Thirteen overt acts in furtherance of the charged conspiracy are then alleged. Included in the alleged overt acts are cash money payments by the defendant Melekh to an individual on three occasions and also the acceptance by Melekh of a map and photographs.

The second count of the indictment charges a conspiracy to violate Title 18 U.S.C.A. § 951. Part of this alleged conspiracy was to induce and procure a United States citizen to act within the United States as an agent of the Government of the Union of Soviet Socialist Republics without prior notification to the Secretary of State and without the said United States citizen being a diplomatic or consular official or attache. It was a further part of the conspiracy, as pleaded, that said United States citizen would be paid for so acting as an agent of the Union of Soviet Socialist Republics for the purpose of obtaining and transmitting information and material for the use of that foreign nation. The overt acts in furtherance of this alleged conspiracy are the same as those set forth under the first count.

The third count charges a substantive violation of section 951, Title 18 U.S. C.A., by the defendant Hirsch, aided and abetted by Melekh.

Proceedings Before the Commissioner

After the indictment was filed on October 27, 1960, and on the same day, the defendants were duly arrested in the Southern District of New York.

On November 3, 1960, Hon. Earle N. Bishopp, United States Commissioner for the Southern District of New York, held a hearing, at which the defendants were represented by counsel of their own choice. Upon the testimony and exhibits presented before him, the Commissioner found that proof of identity had been established and that the defendants Melekh and Hirsch are the persons named in the Illinois indictment.

The evidence before the Commissioner consisted of a certified copy of the Illinois indictment; the testimony of Richard H. Nachtsheim, a special F.B.I. agent; and photographs of the defendants (which photographs had previously been marked as grand jury exhibits before the grand jury that returned the indictment).

On November 3, 1960, the Commissioner recommended "the issuance of a warrant of removal to the Northern District of Illinois, Eastern Division for each defendant."

The certified copy of the indictment, the said two photographs, a transcript of the Commissioner's findings, and the Commissioner's final commitment and recommendation have been submitted to this Court.

Bail, duly fixed in the amount of $50,000 for each defendant, was furnished by the defendant Melekh as to himself on November 4, 1960. Hirsch has been committed, in default of bail.

I.

The defendants do not dispute the fact, independently established by the evidence, that they are the persons named as defendants in the Illinois indictment.

However, the defendant Melekh, interposing the claim of diplomatic immunity, resists the removal proceedings. According to the defense, this claim of diplomatic immunity has a double thrust: first, that Melekh's immunity renders the Illinois indictment void; second, that Melekh's immunity deprives this Court of jurisdiction, in the sense of power, to order his removal.

The Government's position is that, regardless of the question of the merits of Melekh's immunity claim, this Court must order the removal to the Northern District of Illinois because Rule 40 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., mandates a removal once it is established—as it has been established in the case at bar—that an indictment has been returned against the defendants, and that they have been identified as the indicted defendants. The Government relies on the proposition that Rule 40 (effective March 21, 1946) was promulgated in order to effect "drastic and distinct innovations" designed to expedite and simplify removal proceedings; and that this Court, in the case at bar, has no alternative but to order the removal. See Holtzoff, Reform of Federal Criminal Procedure, 1944, 3 F.R.D. 445, 451; Holtzoff, Removal of Defendants in Federal Criminal Procedure, 1945, 4 F.R. D. 455, 468; Singleton v. Botkin, D.C. D.C.1946, 5 F.R.D. 173; Hemans v. Matthews, D.C.D.C.1946, 6 F.R.D. 3; United States v. Bessie, D.C.D.Cal.1947, 75 F.Supp. 95, 96-97; United States v. Binion, D.C.D.Nev.1952, 13 F.R.D. 238, 240, appeal dismissed 9 Cir., 1953, 201 F.2d 498, certiorari denied 1953, 345 U.S. 935, 73 S.Ct. 796, 97 L.Ed. 1363; United States v. Provoo, D.C.S.D.N.Y. 1954, 16 F.R.D. 341.

The Advisory Committee Notes To The Federal Rules Of Criminal Procedure For The United States District Courts (for text, see 4 Barron, Federal Practice and Procedure Rules ed. 1951 843, 868) state, in part, with reference to Rule 40:

"1. This rule modifies and revamps existing procedure. * * *

"The scope of a removal hearing, the issues to be considered, and other similar matters are governed by judicial decisions collecting cases.

"2. The purpose of removal proceedings is to accord safeguards to a defendant against an improvident removal to a distant point for trial. On the other hand, experience has shown that removal proceedings have at times been used by defendants for dilatory purposes and in attempting to frustrate prosecution by preventing or postponing transportation even as between places a few miles apart. The object of the rule is adequately to meet each of these two situations."

Hon. Alexander Holtzoff now United States District Judge for the District of Columbia, who served as secretary to the Advisory Committee (see F.R.C.P., 18 U.S.C.A. p. xv), makes the following comment (4 Barron, Federal Practice and Procedure Rules ed. 1951, preface, p. xi):

"Proceedings for the removal of a defendant from one district to another for trial had long been a weak spot in Federal criminal procedure. The technicalities with which they had become encrusted through the years, at times enabled astute and resourceful counsel to resist their clients' removal across district lines for several years. This is no longer possible."

Rule 40, entitled "Commitment to Another District; Removal," pertinently provides:

"(3) Hearing; Warrant of Removal or Discharge. The defendant shall not be called upon to plead. If the defendant waives hearing, the judge shall issue a warrant of removal to the district where the prosecution is pending. If the defendant does not waive hearing, the commissioner or judge shall hear the evidence. If the commissioner hears the evidence he shall report his findings and recommendations to the judge. At the hearing the defendant may cross-examine witnesses against him and may introduce evidence in his own behalf. If it appears from the commissioner's report or from the evidence adduced before the judge that sufficient ground has been shown for ordering the removal of the defendant, the judge shall issue a warrant of removal to the district where the prosecution is pending. Otherwise he shall discharge the defendant. If the prosecution is by indictment, a warrant of removal shall issue upon production of a certified copy of the indictment and upon proof that the defendant is the person named in the indictment. * * * If a warrant of removal is issued, the defendant shall be admitted to bail for appearance in the district in which the prosecution is pending in accordance with Rule 46. After a defendant is held for removal or is discharged, the papers in the proceeding and any bail taken shall be transmitted to the clerk of the district court in which the prosecution is pending."

Rule 40(3) of the Federal Rules of Criminal Procedure thus is explicit in delineating sharply the limited issues which may properly be considered in a...