United States v. Rosenberg

• Decision Date: 31 December 1952
• Docket Number: 163,No. 162,Dockets 22570-22571.,162
• Citation: 200 F.2d 666
• Parties: UNITED STATES v. ROSENBERG et al.
• Court: U.S. Court of Appeals — Second Circuit

200 F.2d 666 (1952)

UNITED STATES v. ROSENBERG et al.

Nos. 162, 163, Dockets 22570-22571.

United States Court of Appeals Second Circuit.

Argued December 22, 1952.

Decided December 31, 1952.

Emanuel Bloch, New York City, for appellants Julius Rosenberg and Ethel Rosenberg.

Howard N. Meyer, Harold M. Phillips and Edward Kuntz, New York City, for appellant Morton Sobell.

Myles J. Lane, U. S. Atty., New York City, James B. Kilsheimer, III, New York City, of counsel, for appellee.

Before SWAN, Chief Judge, and CHASE and FRANK, Circuit Judges.

SWAN, Chief Judge.

The appellants were convicted of conspiracy to violate the Espionage Act.¹ They were sentenced on April 5, 1951. Their conviction was affirmed by this court,² and thereafter petitions for certiorari and for rehearing were denied by the Supreme Court. The present appeals are from orders dismissing petitions under 28 U.S.C.A. § 2255 by which the petitioners sought release from custody upon the ground that their sentences were imposed in violation of the Constitution or laws of the United States. Under this section the court must grant a prompt hearing, determine the issues and make findings of fact and conclusions of law with respect thereto, "Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief". After hearing oral argument of counsel for petitioners and of the United States Attorney, Judge Ryan ruled that it was conclusively shown that the petitioners were entitled to no relief and that no material issue of fact was raised which required a "hearing." He wrote an able, careful and comprehensive opinion, familiarity with which will be assumed without repeating herein his discussion of the points considered.

The remedy afforded by this statutory proceeding is analogous to that afforded by a writ of habeas corpus. United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263. It, like that writ, "cannot ordinarily be used in lieu of appeal to correct errors committed in the course of a trial, even though such errors relate to constitutional rights." United States v. Walker, 2 Cir., 197 F.2d 287, 288; Adams v. United States ex rel. McCann, 317 U.S. 269, 274, 63 S. Ct. 236, 87 L.Ed. 268. Nor can it be used to obtain a retrial according to procedure which the petitioner voluntarily discarded and waived at the trial upon which he was convicted. Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268; Carruthers v. Reed, 8 Cir., 102 F.2d 933, 938; United States ex rel. Marshall v. Snyder, 2 Cir., 160 F.2d 351, 353; Bowen v. United States, 5 Cir., 192 F.2d 515, 517; Smith v. United States, 88 U.S.App.D.C. 80, 187 F.2d 192, 198, certiorari denied 341 U.S. 927, 71 S.Ct. 792, 95 L.Ed. 1358. These limitations on the function of a petition under § 2255 must be borne in mind in considering the present appeals.

Since Judge Ryan held no hearing at which testimony could be presented, it is necessary to treat as true all facts stated in the petitions and in accompanying affidavits and exhibits, and to disregard all contrary statements of fact in the government's affidavits. This does not mean, however, that Judge Ryan was obliged to accept as facts conclusionary allegations asserted by the petitioners. See United States v. Sturm, 7 Cir., 180 F.2d 413, 414; United States v. Pisciotta, 2 Cir., 199 F. 2d 603. For example, the fact that newspapers carried the stories set out in the exhibits must be accepted, but the conclusion that such publicity made impossible the selection of an impartial jury is an inference which the judge is not necessarily bound to accept. If, so treating the allegations of fact, the petitioners would be entitled to relief on any particular item, we should remand as to that item for the taking of testimony and the making of findings of fact. With this preliminary statement as to the necessary approach to the problem we turn to the particular items upon which the petitioners relied as entitling them to relief.

1. Alleged prejudicial newspaper publicity. The first ground of attack upon their conviction asserted by the petitioners is that newspaper publicity before and during their trial, some of which was government inspired, was such as to bring about "a communal prejudgment of their guilt" and thus deprive them of their Constitutional right to trial by an impartial jury. A great mass of newspaper clippings was submitted as exhibits attached to their petitions. They cover a period from February 1, 1950 to April 3, 1951. Nothing with specific reference to the petitioners appeared until about the time of their arrest. Julius Rosenberg was arrested July 17, Ethel Rosenberg August 11, and Morton Sobell August 18, 1950. The trial commenced March 6, 1951 and ended March 29th. There was considerable newspaper comment when they were arrested. During September, October and November, newspaper references to the case were few and brief. From November to February 21, 1951, there were no news items whatever concerning the pending prosecution. When a defendant believes that pretrial publicity has been such as to render impossible the selection of an impartial jury, there are well-recognized methods of raising this issue before the trial commences. He may move for a change of venue or for a continuance until the public clamor shall have subsided. The petitioners took neither of these courses. On the voir dire the prospective jurors were carefully questioned as to whether they had read or heard about the case and a jury was selected satisfactory to the defendants, who did not even use all the peremptory challenges permitted them. Nor do they allege that any trial juror was in fact prejudiced by the publicity now asserted to have made a fair trial impossible.³ Their present position is obviously an after-thought, inspired by the hope of securing a new trial after having exhausted all hope of reversing the verdict by appeal and petitions for certiorari. The excuse offered by counsel for the Rosenbergs is that he did not realize at the date of the trial the extent and the inflammatory character of the publicity as it could not have been revealed to him "by the usual sporadic reading of an average newspaper reader," and he was so busy that he "read the newspapers" infrequently. But if he did not realize it, there is no reason to suppose that the jury was more seriously affected. Sobell's argument also urges that he and his counsel could not until the government rested its case have been aware of how detrimental the publicity regarding "atom spies" was. In essence this argument appears to be that the evidence at the trial showed that there were two conspiracies in only one of which was Sobell involved, a contention which was ruled against him on the prior appeal. Moreover, Sobell's petition alleges that the publicity concerning Julius Rosenberg "obviously rebounded to the prejudice of all defendants." If so, this should have been as obvious to him at the time of trial as now. The only evidence the petitioners wished to offer as to the effect of the newspaper publicity, if a hearing were accorded, was the opinion testimony of a supposed expert on mass psychology. Judge Ryan did not abuse his discretion in declining to grant a hearing to receive such opinion evidence. The situation in Delaney v. United States, 1 Cir., 199 F.2d 102, upon which the petitioners so strongly rely, was very different. Not only was the Delaney publicity more obviously damaging and much closer to the date of trial but there the defendant did move for a continuance and the denial of this motion was the ground on which the court reversed the appellant's conviction. The best that can be said in the instant case is that, at the time of trial, astute counsel decided that the publicity did their clients no harm, and now want this court to decide otherwise.⁴

With respect to newspaper publicity during the trial, the petitioners' principal complaint relates to stories concerning the indictment of one Perl. He was indicted for perjury committed in denying that he knew Sobell, Julius Rosenberg and certain persons whose names were prominently mentioned in the trial of the petitioners. The indictment, when returned, was ordered sealed. It was made public on March 15, 1951. The affidavits show that Mrs. Greenglass was still on the witness stand when the story of the Perl indictment was published in the city papers, and that the New York Times carried a statement ascribed to the United States Attorney then in office, as follows:

"Mr. Saypol said also that Perl had been listed as a witness in the current espionage trial. His special role on the stand, Mr. Saypol added, was to corroborate certain statements made by David Greenglass and the latter\'s wife, who are key Government witnesses at the trial."

The petitioners assert that the unsealing of the Perl indictment and the statement by Mr. Saypol were timed by the prosecution with the purpose of prejudicing them in their trial. Since no hearing was accorded, we must, as already stated, assume that publication of the indictment was deliberately "timed" and the statement attributed to Mr. Saypol was made by him. Such assumed tactics cannot be too severely condemned. But the essence of the wrong done the petitioners does not lie in...