United States v. Sobell

• Decision Date: 06 February 1963
• Docket Number: Docket 27558.,No. 151,151
• Citation: 314 F.2d 314
• Parties: UNITED STATES of America, Appellee, v. Morton SOBELL, Appellant.
• Court: U.S. Court of Appeals — Second Circuit

314 F.2d 314 (1963)

UNITED STATES of America, Appellee, v. Morton SOBELL, Appellant.

No. 151, Docket 27558.

United States Court of Appeals Second Circuit.

Argued December 7, 1962.

Decided February 6, 1963.

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Marshall Perlin and Sanford M. Katz, New York City (Donner, Perlin & Piel), New York City (Frank J. Donner, Eleanor Jackson Piel, New York City, of counsel), (Benjamin Dreyfus, San Francisco, Cal., on brief), for appellant.

Robert J. Geniesse, New York City (Vincent L. Broderick, U. S. Atty. for Southern District of New York, Arthur I. Rosett, Asst. U. S. Atty., on brief), for appellee.

Before SWAN, FRIENDLY and MARSHALL, Circuit Judges.

FRIENDLY, Circuit Judge.

On March 29, 1951, a jury in the Southern District of New York found Morton Sobell guilty, along with Julius and Ethel Rosenberg, under a single count indictment charging a conspiracy to violate 50 U.S.C. (1946 ed.) § 32(a), which made it a crime to "communicate, deliver or transmit, to any foreign government * * * information relating to the national defense", or to aid or induce another to do so. Sobell was sentenced to thirty years imprisonment, under the proviso that whoever shall violate § 32 (a) "in time of war shall be punished by death or by imprisonment for not more than thirty years,"¹ as contrasted with the twenty years imprisonment that constituted the maximum penalty at other times. This Court affirmed the judgment of conviction, United States v. Rosenberg, 195 F.2d 583 (1952); Judge Frank, who wrote the opinion, dissented as to Sobell on the sole ground that the question whether he had become a party to a larger conspiracy "to transmit all kinds of secret information", or only to a smaller one to transmit "just certain kinds which he knew about", should have been separately submitted to the jury, since many acts and declarations relating to the larger conspiracy which were received in evidence without restriction could properly be considered against him only in the former event. 195 F.2d at 600-602. Certiorari was denied 344 U.S. 838, 73 S.Ct. 20, 97 L.Ed. 687 (1952).

Sobell's instant motion, the appeal from Judge McGohey's denial of which, 204 F.Supp. 225 (S.D.N.Y.1962), is here before us, is his fifth attempt to obtain post-conviction relief under 28 U.S.C. § 2255 or the Rules of Criminal Procedure.² He advances two separate grounds, sometimes hereafter characterized as the Grunewald ground and the "in time of war" ground; he claims, subject to a qualification noted in the margin,³ that these grounds, although appearing on the trial record itself, have not been heretofore raised either on appeal or on motions for post-conviction relief. Although the Government disputes this, we put the controversy to one side, as we do also the issue of law — on which the courts of appeals have divided — whether the provision of § 2255 that "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner" is applicable when the later motion seeks the same "relief" as an earlier one but on a different ground. See the review of the authorities by Judge Wilbur K. Miller dissenting in Belton v. United States, 104 U.S.App. D.C. 81, 259 F.2d 811, 824-825 (1958); Smith v. United States, 106 U.S.App. D.C. 169, 270 F.2d 921 (1959); Sanders v. United States, 297 F.2d 735 (9 Cir.), cert. granted, 370 U.S. 936, 82 S.Ct. 1592, 8 L.Ed.2d 806 (1962). We read Judge McGohey's opinion as having "entertained" Sobell's motion on the merits; we shall consider the appeal on that basis. See Taylor v. United States, 238 F.2d 409, 411 (9 Cir., 1956), cert. denied 353 U.S. 938, 77 S.Ct. 817, 1 L.Ed.2d 761 (1957).

I. THE GRUNEWALD GROUND.

What we have called the Grunewald ground relates to the point decided in Part III of Grunewald v. United States, 353 U.S. 391, 415-424, 425-426, 77 S.Ct. 963, 980, 1 L.Ed.2d 931 (1957), with respect to the defendant Halperin. When testifying at the trial on his own behalf, Halperin was cross-examined as to various matters on which he had been interrogated before a grand jury; he answered in a way consistent with innocence. The Government was allowed, over objection, to bring out that before the grand jury Halperin had pleaded the privilege against self-incrimination as to these very questions. The judge instructed that although the jury was "not to draw any inference whatsoever as to the guilt or innocence of the defendant in this case by reason of the fact that he chose to assert his unquestioned right to invoke the Fifth Amendment on that previous occasion", it might consider "his prior assertions of the Fifth Amendment only for the purpose of ascertaining the weight you choose to give his present testimony with respect to the same matters upon which he previously asserted his constitutional privilege." We affirmed, 233 F.2d 556, 568 (2 Cir., 1956), relying on Raffel v. United States, 271 U.S. 494, 46 S.Ct. 566, 70 L.Ed. 1054 (1926), and our own previous decision in United States v. Gottfried, 165 F.2d 360, 367, cert. denied 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139 (1948), which in turn had cited United States v. Mortimer, 118 F.2d 266 (2 Cir.), cert. denied 314 U.S. 616, 62 S.Ct. 58, 86 L.Ed. 496 (1941); United States v. Groves, 122 F.2d 87 (2 Cir.), cert. denied 314 U.S. 670, 62 S.Ct. 135, 86 L. Ed. 536 (1941), and United States v. Klinger, 136 F.2d 677 (2 Cir.), cert. denied 320 U.S. 746, 64 S.Ct. 48, 88 L.Ed. 443 (1943). Judge Frank dissented, 233 F.2d 571-592. The Supreme Court unanimously reversed. The opinion of the Court, by Mr. Justice Harlan, held that "in the particular circumstances of this case the cross-examination should have been excluded because its probative value on the issue of Halperin's credibility was so negligible as to be far outweighed by its possible impermissible impact on the jury", to wit, as direct evidence of guilt. 353 U.S. at 420, 77 S.Ct. at 982. Recognizing that "the question whether a prior statement is sufficiently inconsistent to be allowed to go to the jury on the question of credibility is usually within the discretion of the trial judge", the Court held that "where such evidentiary matter has grave constitutional overtones, as it does here", the Court would "draw upon our supervisory power over the administration of federal criminal justice in order to rule on the matter. Cf. McNabb v. United States, 318 U.S. 332 63 S.Ct. 608, 87 L.Ed. 819." 353 U.S. at 423-424, 77 S.Ct. at 983-984. Mr. Justice Black, for the Chief Justice, Mr. Justice Douglas, Mr. Justice Brennan and himself, did "not, like the Court", rest his "conclusion on the special circumstances of this case"; he could "think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it." 353 U.S. at 425, 77 S.Ct. at 984.

The asserted bearing of Grunewald here is as follows: The Government's case against Sobell rested almost wholly on the testimony of Max Elitcher, who, in addition to testifying to some independent attempts at espionage by Sobell, linked him closely with Julius Rosenberg. The latter contradicted the testimony of Elitcher with respect to Sobell, as he also did the testimony of David and Ruth Greenglass and Harry Gold with respect to the disclosure of atomic secrets by him and his wife. Ethel Rosenberg corroborated many of her husband's denials of the testimony of the Greenglasses and Gold. Her evidence did not bear directly on Sobell, but there was no particular reason why it should, since Elitcher had not implicated her in any of Sobell's activities. Sobell did not take the stand.

Mrs. Rosenberg testified on direct and cross-examination about many matters upon which she had claimed the privilege before the grand jury. Repeatedly the prosecutor questioned her as to the supposed inconsistency between the versions of innocence to which she testified at the trial and her previous claim that answering questions about these same matters would tend to incriminate her. When objections or motions for a mistrial were made, the judge overruled or denied them, as he was required to do by the decisions of this Court cited in our opinion in Grunewald. Both during the trial and in his charge the judge made it crystal-clear that Mrs. Rosenberg's "failure to answer such questions before the grand jury is not to be taken as establishing the answers to any questions she was asked before the Grand Jury, but may be considered by you in determining the credibility of her answers to those same questions at this trial" — a correct statement of the rule as then established in this circuit. The matters about which Mrs. Rosenberg was interrogated with respect to her prior claim of privilege included her admission at the trial that she had consulted a lawyer prior to appearing before the grand jury; her denial of having discussed the case with her brother, David Greenglass; her denial of having discussed David's atomic work with him or his wife, or with her husband; her memory of a furlough visit from David in January 1945; her denial of having seen Harry Gold until he appeared in the courtroom; and her denial of having ever met Anatoli Yakovlev.

As regards some of these items, there was greater inconsistency between Mrs. Rosenberg's claim of privilege before the grand jury and her testimony at the trial than in Halperin's case. It is hard, for example, to see how her claim before the grand jury that answering the questions about Harry Gold and Yakovlev would tend to incriminate her can be reconciled with the answers — outright denials of knowing either man — that she gave to these questions at the trial; it can scarcely be said, as the Supreme Court said of Halperin, that "had she answered the questions put to her before the grand jury in the same way she subsequently answered them at trial, this nevertheless would have provided the Government...