United States v. Sobell

• Decision Date: 14 May 1957
• Docket Number: No. 235,236,Dockets 24299,24300.,235
• Citation: 244 F.2d 520
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Morton SOBELL, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

244 F.2d 520 (1957)

UNITED STATES of America, Plaintiff-Appellee, v. Morton SOBELL, Defendant-Appellant.

Nos. 235, 236, Dockets 24299, 24300.

United States Court of Appeals Second Circuit.

Argued March 5, 1957.

Decided May 14, 1957.

Paul W. Williams, U. S. Atty., for the Southern District of New York, New York City (Robert Kirtland and Maurice N. Nessen, Asst. U. S. Attys., New York City, of counsel), for plaintiff-appellee.

Donner, Kinoy & Perlin, New York City, and Benjamin Dreyfus, San Francisco, Cal. (Frank J. Donner, Arthur

Kinoy and Marshall Perlin, New York City, Benjamin Dreyfus, San Francisco, Cal., and Luis Sanchez Ponton, Mexico City, Mexico, of counsel), for defendant-appellant.

Before MEDINA and WATERMAN, Circuit Judges, and GALSTON, District Judge.

MEDINA, Circuit Judge.

At the close of a trial with his co-defendants Julius and Ethel Rosenberg, appellant was sentenced to thirty years imprisonment on April 5, 1951. After numerous attempts to vacate the judgment of conviction on various grounds, including several prior applications under 28 U.S.C. § 2255, all of which were denied and the rulings affirmed on appeal, United States v. Rosenberg, 2 Cir., 195 F.2d 583, and certiorari denied by the Supreme Court, 344 U.S. 838, 73 S.Ct. 21, 97 L.Ed. 652, appellant made the two motions which resulted in the order appealed from. The first motion is based upon the charge that, at the trial in 1951, the prosecution "knowingly, willfully and intentionally used false and perjurious testimony and evidence, made false representations to the Court, and suppressed evidence which would have impeached and refuted testimony given against petitioner." The second motion is based upon the charge that the "United States itself, as well as its courts * * * lacked all sovereignty and power to conduct the proceedings," and that the trial court lacked jurisdiction because of alleged violations of the Constitution and laws of the United States, including "the Extradition Treaty between the United States and Mexico." The subject matter of these charges relates to the seizure of appellant in Mexico City by the Mexican Security Police, his transportation to Laredo, Texas, where the United States Immigration Inspector made a record of appellant's entry on August 18, 1950 into the United States, and his arrest, pursuant to a warrant duly issued on August 3, 1950 in the Southern District of New York. While appellant asserts that his contentions have not been made before, the records of the District Court make it abundantly plain that, except for some elaboration in matters of detail and the articulation of what are alleged to be new legal theories, the charges are not new, but have already been rejected in one form or another. These prior proceedings and the procedural obstacles to any possible favorable action on the two new motions have been so fully set forth in the detailed discussion appearing in the well reasoned and comprehensive opinion of Judge Irving R. Kaufman, D.C., 142 F.Supp. 515, that we think it not necessary to do more than note our approval of what he has written.

The charges are of such a serious and sensational character, however, and upon careful examination they turn out on the face of the record to be so utterly groundless, that we shall briefly set forth our reasons for holding that the trial judge could not have arrived at any conclusion other than to decide, as he did, that there be no hearing on either application, as "the files and records of the case conclusively show that the prisoner is entitled to no relief," 28 U.S.C. § 2255. There was no foisting of perjurious testimony upon the court and jury by the prosecution; no false representations were made; there was no suppression of evidence; there was no violation of the Extradition Treaty between the United States and Mexico, or of any of the provisions of the Constitution and laws of the United States; and the motions were properly denied in toto.

I

At the trial there was evidence which definitely connected appellant with the aims and purposes and with the consummation of the ends of the espionage conspiracy. United States v. Rosenberg, 2 Cir., 195 F.2d 583, certiorari denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687, rehearing denied, Sobell v. U. S., 344 U.S. 889, 73 S.Ct. 180, 97 L.Ed. 687. This was supplemented by proof from which the jury might well have inferred that the Rosenbergs and appellant suspected that the FBI was closing in on them and that an elaborate plan was devised which envisaged escape from the law enforcement authorities of the United States by flight to Mexico and thence by way of Vera Cruz or some other seaport to Europe, with Soviet Russia as the ultimate destination. We had another phase of this same planned exodus to Mexico before us in United States v. Perl, 2 Cir., 210 F.2d 457, in which case Perl testified in his own defense and described how he was approached on the subject.

The testimony in this case was to the effect that Rosenberg outlined a pattern of flight for David Greenglass and his wife that would take them to Mexico, then to Europe via Vera Cruz and finally to Russia. Shortly after Greenglass and Harry Gold, another member of the spy ring, were apprehended, appellant began to follow the pattern of flight outlined by Rosenberg to the Greenglasses.

Accordingly, the prosecution proved at the trial that appellant with his wife and children went to Mexico City in the spring of 1950. Had this been a vacation jaunt for a brief sojourn, with the intention of returning to the United States, there was ample opportunity for appellant's experienced and astute trial counsel to adduce evidence to prove it; but no such evidence, testimonial or documentary, was forthcoming, and appellant did not even testify in his own defense. The prosecution, on the other hand, produced a number of witnesses who made it clear that appellant went to Mexico for purposes of flight, with a quite settled determination not to return to the United States if he could avoid doing so. The relevancy and sufficiency of this evidence have already been passed upon. United States v. Rosenberg, supra.

The witness Manuel Giner de los Rios, who lived in the same apartment house as appellant in Mexico City, testified that he became acquainted with appellant, who told him some time in July that he was an American and was afraid that "they were looking for him so that he would have to go in the Army"; that appellant was looking for information as to how to get out of Mexico; that a few days later appellant asked for directions of how to go to Vera Cruz, which the witness gave him; that appellant was away for about 15 days, somewhere around the 20th or 22nd of July, 1950, during which period of time the witness received from appellant in the mail an envelope postmarked Vera Cruz addressed to the witness, containing a letter which the witness delivered to appellant's wife, and another postmarked Tampico, another Mexican seaport, also containing a letter for appellant's wife.

Other witnesses testified to the use by appellant of false names and an elaborate system of correspondence from appellant in Mexico, enclosing letters for delivery to members of appellant's family in the United States, with return addresses on the envelopes and the names "M. Sowell" and "M. Levitov." The effort to avoid interception and detection is perfectly plain. Indeed, in one of his prior Section 2255 applications appellant stated: "I left the family in the Mexico City apartment and travelled around Mexico to Vera Cruz and Tampico, even using false names and inquiring about passage to Europe and South America for all of us."

The proof of appellant's return to the United States by the Mexican Security Police merely supplemented the proof of appellant's consciousness of guilt by explaining his presence at the trial, which appellant appears to concede was not voluntary. As we said on the first appeal, United States v. Rosenberg, supra, 195 F.2d at page 602, "otherwise the jury might have inferred that he had returned voluntarily to stand trial."

So we turn to the specifications of alleged perjury, false representations and suppression of evidence.

Immigration Inspector Huggins testified that on August 18, 1950 about nine Mexican officials brought appellant to him in Laredo, Texas, that he filled out the manifest, which is now challenged as palpably false, noting from what he had observed and not from anything said to him by the Mexican officials, "Deported From Mexico," and further data, such as appellant's occupation of electrical engineer, that he had spent all his life in the United States "until about two months ago," his age, address, and so on, from answers given to him by appellant. On the reverse side of the manifest, under "Remarks and Endorsements" is written, "Brought to Imm. Office by Mex. Police," followed by the signatures of Inspector Huggins and appellant.

By some process of reasoning that is far from clear to us, this is supposed to be wilful perjury because appellant asserts that he was assaulted and "kidnapped" by the Mexican Security Police, as agents of or instigated by the FBI, and brought to Laredo, Texas, without any formal deportation proceedings, which we are told are elaborate and technical and always observed with meticulous care by the Mexican authorities.

But appellant was nonetheless deported and the witness did no more than testify to what he personally observed, or was told by appellant, and noted in the manifest in the regular course...