United States v. Soblen
| Decision Date | 03 November 1961 |
| Citation | 203 F. Supp. 542 |
| Parties | UNITED STATES of America v. Robert SOBLEN a/k/a Robert Soble. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
Robert M. Morgenthau, U. S. Atty., David R. Hyde, Asst. U. S. Atty., of counsel, for the Government.
Ephraim London. New York City, for defendant.
The defendant moves under Federal Rules of Criminal Procedure, Rule 33, 18 U.S.C., for a new trial in a proceeding in which the defendant was convicted and sentenced to life imprisonment for violations of Title 18 U.S.C. § 793(a) (c) (g) and § 794 (a) (c).
On August 7, 1961, the day of sentence, the defendant requested the Court to defer sentence pending the making of a motion for a new trial (Trial 1671-1688).* The Court declined to adjourn sentence, stating that the defendant's attorneys should make the motion for a new trial, if so advised, in regular course (Trial 1686-1688). The motion papers herein were filed on October 5th, 1961, and made returnable on October 9th, 1961.
This Court has proceeded to determine the merits of the motion on all of the grounds permitted by Rule 33: "newly discovered evidence" and "the interest of justice." In so doing, the Court has disregarded the five-day time bar prescribed by Rule 33 with respect to grounds for the motion other than newly discovered evidence. In so disregarding said time bar, this Court has not adjudicated the question whether the defendant's motion is subject to said bar, believing that the particular circumstances and the nature of this case make it advisable to determine the validity of the motion on any and all possibly applicable grounds.
The Court has proceeded to conduct full hearings on the motion for a new trial. The record of those hearings runs to 550 pages and includes numerous exhibits.
Upon the trial, two of the prosecution's key witnesses were Jack Soble, a brother of the defendant, and Mrs. Johanna Koenen Beker.
With respect to Jack Soble, the defendant now urges as a ground for a new trial that, at the time of the trial, Jack Soble was incompetent as a witness by reason of his mental condition; that the Government failed to disclose to the defense and to the Court medical reports and data that allegedly would have demonstrated that Jack Soble was psychotic (Motion 247, 248, 275-276, 280-281, 329); and that, regardless of the diligence or lack of diligence of defense attorneys in discovering such evidence, the prosecution was required to make a full disclosure of Jack Soble's mental condition. (Motion 251-252, 270, 275-276, 280-281, 329.)
With respect to Mrs. Beker, the defendant now urges as a ground for a new trial that her trial testimony centered critically around one Hans Emil Hirschfeld; that, according to her trial testimony, Hirschfeld, a wartime employee in the New York office of OSS during 1943 to 1945, had furnished her with national defense information which was in turn delivered to the defendant; that she met Hirschfeld a number of times, having originally been placed in contact with him by the defendant; and that the defendant gave her money with which to pay Hirschfeld for his services.
The defendant's present contention is that he has newly discovered evidence which, he claims, had been suppressed at the trial by the Government; that the essence of said newly discovered evidence is that Hirschfeld, in 1957 and 1960, had been confronted by Mrs. Beker and that he flatly denied ever having seen, met, spoken to or worked with Mrs. Beker; that Hirschfeld, in a number of interviews with Government representatives, insisted on his complete innocence of the inculpatory acts attributed to him by Mrs. Beker; and that Hirschfeld testified in February, 1960 before the Grand Jury for the Southern District of New York, repeating before said body the denials already referred to.
The defendant also urges as a ground for a new trial that he has discovered that various former OSS employees are prepared to testify that Hirschfeld had no access to secret information, particularly secret information about national defense weapons; and that, as a German Social Democrat, he expressed and adhered to anti-Communist political tenets.
The defendant has also applied for leave to take Hirschfeld's testimony by deposition under Rule 15, F.R.Crim.Proc., which proposed testimony would be a comprehensive denial of Mrs. Beker's testimony.
The hearings upon this motion and the entire record made in connection therewith amplify the grounds of the defendant's motion, summarized above.
The Court's numbered and unnumbered findings of fact and conclusions of law are set forth in this decision and opinion.
Assistant United States Attorneys Hyde and Casey, who tried this case, accurately described (1) the procedure followed in preparing and furnishing the defense with the exhibits consisting of Mrs. Beker's F.B.I. statements; (2) the Government's compliance with the Court's rulings as to the contents of those exhibits; (3) the significance of the Government's red crayon markings on the exhibits and the condition of the exhibits when turned over to the defense; (4) the return of the exhibits by the defense and the condition of the exhibits when so returned; (5) the continuity of condition and possession of the returned exhibits from the moment of return to the time when they were produced upon the hearing of the present motion.
With respect to the Hirschfeld phase of the motion, the Court finds the following facts to have been established by the overwhelming weight of the credible evidence:
1. The complete F.B.I. reports of Mrs. Beker's interviews and statements were furnished to and read by the Court.
2. At that time each report that contained material which the Government conceded fell within the operation of § 3500 (Title 18 U.S.C.) was marked with red crayon by the Government so as to indicate the portions admittedly required to be turned over to the defense. (Trial 498, 500, 505, 516, 517, 520, 521, 524, 529; Motion 131-132, 197-199, 375). This is illustrated by Exhibits 169 and 188 (for id.).
3. Where the report in its entirety was conceded by the Government to fall within the operation of § 3500, the entire report was turned over without red crayon markings. This is illustrated by Exhibit 177 (for id.).
4. There were no ink-markings around any sentences or paragraphs or in the margins of any of the exhibits for identification when such exhibits were read by the Court and when such exhibits were furnished by the prosecution to the defendant. However, when Exhibits 149, 151, 157, 159, 177 and 191 were returned by the defense to the attorneys for the prosecution, there was such ink-markings, sometimes in blue ink, sometimes in green ink, and sometimes in ink of both colors. (Motion, 378.)
A comparison of the portions of the exhibits so ink-marked with the use of such ink-marked portions by defendant's trial attorney on his cross-examination of Mrs. Beker, discloses that, in each instance where Mr. Brill cross-examined Mrs. Beker about a particular page of a particular exhibit, the portion of the exhibit used for such cross-examination was ink-marked as indicated above. (Motion, 378.) This is demonstrated by the following tabular comparison:
Trial Exhibit Specific Portion of Exhibit (id)
Record (id) Used in Cross-Examining Mrs
(page) (number) Beker
------------------------------------------------------------------
1318-1322 149 page 10, 2nd and 3rd paragraphs
1332-1335 149 page 11, last paragraph
1317-1318 151 first page, 2nd paragraph
1279-1280 157 page 14, last paragraph
1308-1313 159 page 17 and page 5
1294 177 page 9 (same facts as in first two
sentences of 2nd paragraph, page
11)
1326-1332 191 page 1, 2nd paragraph
The characteristics of the ink-markings on page 11 of Exhibit 177 — a small hook at the top of the vertical line — appear on the marking on page 5 of Exhibit 159.
The Court finds that the ink-markings on page 11 of Exhibit 177 were placed thereon by the defense, evidencing the fact that page 11 — which the defense now claims was not furnished to it — was not only in possession of the defense but was scrutinized by the defense.
The Court finds that the ink-markings on the exhibits tabulated above were placed on said exhibits by the defense.
5. The original exhibits, not photostats, were turned over to the defense, in the case of Mrs. Beker's F.B.I. statements or portions thereof. (Motion, 377.)
6. The Court made longhand notes of each ruling, recording the lines and paragraphs of each page of each exhibit to be turned over to the defense. (Motion 194-196.)1 Mr. Friedman made detailed shorthand notes of each of the Court's rulings.
The same precautions were taken with respect to the return of the exhibits.2
7. Mr. Friedman, who took shorthand notes of the Court's detailed rulings as to what was to be turned over to the defense (Motion 192, 193), checked each exhibit that was supplied to him in order to assure himself that the turned-over exhibit complied with the Court's ruling. (Motion 190, 193; 206; Trial, 888-889, 890, 891, 1002.) Mr. Friedman followed the exhibit-marking proceedings closely. (See, e. g., Trial 1238.) Everything was placed on the record in the presence of the defendant and his attorney (Motion 130, 196).
8. Exhibits 169, 177 and 188 (for id.) are now in the same condition as they were when they were turned over to the defense during the trial and when they were returned by the defense to the prosecution during the trial, the sole exception being the pen markings on Exhibit...
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