United States v. Rosenberg

• Citation: 195 F.2d 583
• Decision Date: 25 February 1952
• Docket Number: No. 137-138,Dockets 22201,22202.,137-138
• Parties: UNITED STATES v. ROSENBERG et al.
• Court: U.S. Court of Appeals — Second Circuit

195 F.2d 583 (1952)

UNITED STATES v. ROSENBERG et al.

Nos. 137-138, Dockets 22201, 22202.

United States Court of Appeals Second Circuit.

Argued January 10, 1952.

Decided February 25, 1952.

Rehearing Denied April 8, 1952.

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Myles J. Lane, New York City (Roy M. Cohn, James B. Kilsheimer 3d and Stanley D. Robinson, all of New York City, of counsel), for United States of America.

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

Harold M. Phillips and Edward Kuntz, New York City (Howard N. Meyer, New York City, of counsel), for Morton Sobell.

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

Rehearing Denied in No. 22201 April 8, 1952.

FRANK, Circuit Judge.

Since two of the defendants must be put to death if the judgments stand, it goes without saying that we have scrutinized the record with extraordinary care to see whether it contains any of the errors asserted on this appeal.

1. The Supreme Court has held that the Espionage Act of 1917 makes criminal, and subject to the prescribed penalties, the communication of the prohibited information to the advantage of "any foreign nation," even if such communication does not injure this country. See Gorin v. United States, 312 U.S. 19, 29-30, 61 S.Ct. 429, 435, 85 L.Ed. 488, where the Court said: "Nor do we think it necessary to prove that the information obtained was to be used to the injury of the United States. The statute is explicit in phrasing the crime of espionage as an act of obtaining information relating to the national defense `to be used * * * to the advantage of any foreign nation.' No distinction is made between friend or enemy. Unhappily the status of a foreign government may change. The evil which the statute punishes is the obtaining or furnishing of this guarded information, either to our hurt or another's gain."¹ Accordingly, the trial judge, in the case at bar, properly instructed the jury as follows: "I charge you that whether the Union of Soviet Socialist Republics was an ally or friendly nation during the period of the alleged conspiracy is immaterial, and you are not to consider that at all in your deliberations."

In United States v. Heine, 2 Cir., 151 F.2d 813, we so interpreted the statute as to make it inapplicable to information which our armed forces had consented to have made public. The defendants now assert that the indictment, which followed the language of the statute, was fatally defective since it did not allege that the matter there described was not public. But the statutory language necessarily imported its correct judicial interpretation. Consequently the indictment was sufficient under Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which provides: "The indictment or the information shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * The indictment or information shall state for each count the official or customary citation of the statute, rule, regulation or other provision of law which the defendant is alleged therein to have violated."²

In the Gorin case, the Supreme Court rejected the contention of the unconstitutionality of the statute on the ground of its vagueness under the due process clause of the Fifth Amendment. By implication, it sustained the validity of the statute against any identical argument of vagueness, such as the one urged here, under the Sixth Amendment, since the Court's decision was primarily concerned with whether the statute set up definite enough standards of guilt to advise a citizen of what exactly was forbidden and ipso facto a potential defendant of what exactly he was charged with doing. The Court said 312 U.S. 19, 61 S.Ct. 433: "But we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring `intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. * * * Finally, we are of the view that the use of the words `national defense' has given them, as here employed, a well understood connotation. * * * National defense, the Government maintains, `is a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.' We agree that the words `national defense' in the Espionage Act carry that meaning. * * The language employed appears sufficiently definite to apprise the public of prohibited activities and is consonant with due process."³

We think the statute valid under the First Amendment as well. The communication to a foreign government of secret material connected with the national defense can by no far-fetched reasoning be included within the area of First-Amendment protected free speech. As interpreted in the Gorin case, the statute forbids nothing except such communication. The Court's decision that the statute was definite enough to tell citizens what was prohibited satisfies appellants' contention that many legitimate exercises of First-Amendment rights will fall within the language of the statute. The Court said, "This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established." Stripped down, defendants' First-Amendment argument is the same as their argument under the Fifth and Sixth — i. e., vagueness — and we think the Supreme Court has answered that argument. "A criminal statute must be sufficiently definite to give notice of the required conduct to one who would avoid its penalties, and to guide the judge in its application and the lawyer in defending one charged with its violation. But few words possess the precision of mathematical symbols, most statutes must deal with untold and unforeseen variations in factual situations, and the practical necessities of discharging the business of government inevitably limit the specificity with which legislators can spell out prohibitions. Consequently, no more than a reasonable degree of certainty can be demanded. Nor is it unfair to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line." Boyce Motor Lines v. United States, 342 U.S. 327, 72 S.Ct. 329, 330.⁴

2. The defendants, in their briefs and oral arguments in this court, have attacked the reliability of the damaging testimony given against them by the government's chief witnesses who are all selfconfessed spies, and particularly the credibility of the testimony of the Greenglasses, one of whom the government has not prosecuted and the other of whom received a relatively mild sentence. Doubtless, if that testimony were disregarded, the conviction could not stand. But where trial is by jury, this court is not allowed to consider the credibility of witnesses or the reliability of testimony. Particularly in the federal judicial system, that is the jury's province.

The jury here were warned by the trial judge as follows: "As to the testimony of David Greenglass, Ruth Greenglass and Harry Gold, you must consider it carefully and act upon it with caution, for they are accused of being accomplices. An accomplice in this case is anybody that the prosecution charges agreed or confederated with any or all of the defendants in the commission of the crime charged, as alleged in the indictment. I am not saying that, because a person is a co-conspirator or an accomplice, he or she is not to be believed. If this were so, many cases in this court could not be proven. In the Federal Court a defendant can be convicted upon the uncorroborated testimony of an accomplice whose testimony satisfies the jury of the defendant's guilt beyond a reasonable doubt." So instructed, the jury found defendants guilty. Faced with such a verdict, this court is obligated to assume that the jury believed the evidence unfavorable to the defendants. On that assumption, the evidence to sustain the verdict is more than ample.

3. Defendants, however, tell us that the trial judge behaved himself so improperly as to deprive them of a fair trial. Defendants' counsel first broached this suggestion on a motion for mistrial after all the evidence had been heard, said that the judge's alleged fault had been "inadvertent," and added that the judge had "been extremely courteous to us and afforded us lawyers every privilege that a lawyer should expect in a criminal case." Soon after the denial of this motion, counsel for the Rosenbergs, summing up for the jury, stated that "we feel that the trial has been conducted * * * with that dignity and that decorum that befits an American trial." Still later, the same counsel said that "the court conducted itself as an American judge." These remarks, by a highly competent and experienced lawyer, are not compatible with the complaints now made. Nor are those complaints deserved. We think the judge stayed well inside the discretion allowed him.

He is charged mainly with taking too active a part in the trial process by his questioning of witnesses. By this questioning he is alleged to have (1) emphasized key points of the government's case; (2) protected and rehabilitated government witnesses; (3) commented on evidence as immaterial or dismissed contradictions brought out by defense attorney as not very important or convincing; (4) examined the defendants with hostility. We have carefully examined each of the hundred or so incidents cited by defendants. Several representative incidents are set out in the footnote.⁵ In...