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 |
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.
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 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.
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.
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:
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):
Rule 40, entitled "Commitment to Another District; Removal," pertinently provides:
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...
To continue reading
Request your trial-
Sanchez-Llamas v. Bustillo, Nos. 04–10566
...(DC 1980); CAB v. Island Airlines, Inc., 235 F.Supp. 990, 1003–1004, and nn. 23–24, 1005, and n. 27 (Haw.1964); United States v. Melekh, 190 F.Supp. 67, 81, 89 (S.D.N.Y.1960); Balfour, Guthrie & Co. v. United States, 90 F.Supp. 831, 834, n. 1 (N.D.Cal.1950). Today's decision interprets an i......
-
United States v. Enger
...distinct from persons designated by foreign governments to serve as their foreign representatives in or to the United Nations. United States v. Melekh, supra. His duties and functions in the Personnel Section of the United Nations did not, of course, contemplate or include such acts as thos......
-
Zenith Radio Corp. v. Matsushita Elec. Indus. Co.
...when presented directly to the courts by letter. See Puente v. Spanish National State, 116 F.2d 43 (2d Cir. 1940); United States v. Melekh, 190 F.Supp. 67 (S.D.N.Y. 1960). Finally, we find plaintiffs' Rule 403 argument to be patently without merit. 122 On the conclusivity point, defendants ......
-
Sanchez-Llamas v. Oregon
...(DC 1980); CAB v. Island Airlines, Inc., 235 F. Supp. 990, 1003-1004, and nn. 23-24, 1005, and n. 27 (Haw. 1964); United States v. Melekh, 190 F. Supp. 67, 81, 89 (SDNY 1960); Balfour, Guthrie & Co. v. United States, 90 F. Supp. 831, 834, n. 1 (ND Cal. Today's decision interprets an interna......