United States District Court, Northern District of Illinois, E.D
March 20, 1961
UNITED STATES OF AMERICA, PLAINTIFF,
IGOR Y. MELEKH, ALSO KNOWN AS PETER STEPHENS AND ALSO KNOWN AS "GIPSY," AND WILLIE HIRSCH, ALSO KNOWN AS JOHN GILMORE, DEFENDANTS.
The opinion of the court was delivered by: Robson, District Judge.
Each of the defendants has filed several motions attacking the
validity of the indictment, the jurisdiction of the Court, and
for discovery. The indictment, in three counts, alleges in Count
One, a conspiracy by defendants Melekh and Hirsch with one
Doronkin, to violate 18 U.S.C. § 793(a), (b), and (c), to obtain
information respecting the national defense, particularly
referring to military installations in Chicago and Cook County,
including aerial photographs, with the intent that the material
be transmitted to a foreign Government, the Union of Soviet
Socialist Republics (hereinafter termed U.S.S.R.) for its
advantage, in violation of 18 U.S.C. Chap. 37.
It is also charged that they would as part of the conspiracy
induce a United States citizen to procure the information; that
Melekh would supervise and
employ persons to obtain and transmit said information, and would
activate agents for the doing of the work; that he would use the
names of Peter Stephens and the pseudonym, Gipsy; and that he
would devise a clandestine method of arranging meetings with
persons to whom he had given assignments.
The indictment then recites thirteen overt acts in furtherance
of the conspiracy, which acts consisted of Hirsch's alleged
meeting with an individual in Chicago on or about July, 1958,
also on or about October 24, 1958; and on or about October 25,
1958, Hirsch met with Melekh in Chicago, and on the same day and
at the same place, Hirsch while using the name of John Gilmore
introduced Melekh as "Peter" to an individual, and on or about
the next day Melekh wrote the names "Peter Stephens" and "Gipsy"
on a piece of paper in Chicago and gave an individual ten $20
bills. Another overt act alleges a meeting by Melekh on or about
November 22, 1958, with a person in Newark, New Jersey, and on
the same day, Doronkin went to the Pennsylvania Railroad Station
in Newark; that on or about November 23, 1958, Melekh, in New
York City, gave a person ten $20 bills; and on the same day
Doronkin went to the vicinity of a certain subway station in
Brooklyn; that on or about January 17, 1959, Melekh met an
individual at Flushing, New York, and accepted a map and
photograph from him and gave him $500, all in violation of
18 U.S.C. § 793.
Count Two charges the same defendants with conspiracy from in
about June, 1958, to the date of the indictment, to violate
18 U.S.C. § 951, to induce a United States citizen to act as agent
of the U.S.S.R., without prior notification to the Secretary of
State and without his being a diplomatic official, for which the
agent was to receive valuable consideration for procuring
information for the U.S.S.R. It was part of the conspiracy to use
fictitious names to conceal the conspiracy. The overt acts of the
first count were incorporated by reference, which acts were
charged to be in violation of 18 U.S.C. § 371.
Count Three charges that in October, 1958, in Chicago, Hirsch
acted as an agent of the U.S.S.R. without prior notification to
the Secretary of State, and at the request of the U.S.S.R.
participated in a meeting between a United States citizen and a
representative of the U.S.S.R. to induce the said citizen to
collect information for the U.S.S.R., in violation of 18 U.S.C. § 951,
and that Melekh aided in the commission of the above
offense in violation of 18 U.S.C. § 2 and 951.
The motions of defendant Melekh which are here considered and
1. Motion to dismiss Count One of the indictment for failure to
state facts sufficient to constitute an offense against the
2. Motion to dismiss Counts Two and Three for failure to charge
an offense against the United States.
3. Motion for bill of particulars.
4. Motion to strike overt acts 8 and 10 from Count Two of the
5. Motion to strike improper matter from the caption and body
of the indictment.
6. Motion to dismiss on the ground the proceeding is within the
exclusive jurisdiction of the United States Supreme Court.
7. Motion to dismiss indictment on the ground Melekh is
entitled to immunity under the provisions of the United Nations
Charter and principles of international law.
The motions of defendant Hirsch here considered and determined
1. Motion to dismiss Count One for failure to state a crime
under 18 U.S.C. § 793.
2. Motion to dismiss Counts Two and Three on the ground that
venue of such charges is improperly laid in the district of this
Court, and for failure to charge an offense against the United
3. Motion for bill of particulars.
4. Motion to strike overt acts 8 and 10 from Count Two of the
5. Motion to examine minutes of Grand Jury to establish failure
of evidence as to guarded nature of information and upon such
finding to dismiss indictment.
Motions of Melekh and Hirsch to dismiss Count One. Both
defendants assert the first count of the indictment is fatally
defective in that it fails to allege that the information which
the conspiracy concerned was "guarded" or secret information,
which element the decisions hold to be essential to the existence
of a crime. In other words, there is no crime where the
conspiracy concerned the gathering of information readily
available to all who took the trouble to seek it out and collate
it. Defendants contend that the omission is one that cannot be
cured by discovery or bill of particulars (Babb v. United States,
5 Cir., 1955, 218 F.2d 538; Lowenburg v. United States, 10 Cir.,
1946, 156 F.2d 22); nor can it be inferred from any of the other
allegations in the indictment.
Count One follows the language of the act, which defendants
concede is ordinarily a sufficient basis for the phrasing of an
indictment. They point out, however, that in Gorin v. United
States, 1941, 312 U.S. 19, at page 28, 61 S.Ct. 429, at page 434,
85 L.Ed. 488, the Court said:
"Where there is no occasion for secrecy, as with
reports relating to national defense, published by
authority of Congress or the military departments,
there can, of course, in all likelihood be no
reasonable intent to give an advantage to a foreign
And in United States v. Heine, 2 Cir., 1945, 151 F.2d 813, it was
held lawful to transmit any information about weapons and
munitions which the services themselves made public, as well as
information which the services themselves never thought it
necessary to withhold. Robertson v. United States, 5 Cir., 1948,
168 F.2d 294, is cited for its holding that where a statute
implies an essential ingredient of the offense, it must be
alleged. And United States v. Carll, 1881, 105 U.S. 611, 612, 26
L.Ed. 1135, requires the indictment to allege all the facts and
elements necessary to bring the case within the statute.
Neither the Gorin nor the Heine case concerned a direct attack
on the sufficiency of an indictment for lack of an allegation of
the secret character of the information purloined.
The Court is of the opinion that inasmuch as the crime charged
in Count One is conspiracy, the allegations of the indictment are
sufficient against a motion to dismiss. The rule as to the
sufficiency of the pleadings of the substantive offense which is
the object of the conspiracy was clearly set out in Wong Tai v.
United States, 1927, 273 U.S. 77, 81, 47 S.Ct. 300, 301, 71 L.Ed.
545, where the Supreme Court said:
"It is well settled that in an indictment for
conspiring to commit an offense — in which the
conspiracy is the gist of the crime — it is not
necessary to allege with technical precision all the
elements essential to the commission of the offense
which is the object of the conspiracy * * * or to
state such object with the detail which would be
required in an indictment for committing the
substantive offense * * *. In charging such a
conspiracy `certainty to a common intent, sufficient
to identify the offense which the defendants
conspired to commit, is all that is necessary.'"
Immediately theretofore in describing the indictment there being
considered, the Court had said:
"It charged the defendant, with definiteness and
certainty and reasonable particularity as to time and
place, with conspiring with a named person and others
to commit certain specified offenses in violation of
the Opium Act; and further charged him, in like
manner with doing various specified acts to effect
the object of the conspiracy."
Recently the Second Circuit Court of Appeals in United States
v. Switzer, 2 Cir., 1958, 252 F.2d 139, similarly held in a case
involving an indictment for conspiracy to transfer a bankrupt's
property illegally, that the indictment need not describe the
substantive crime with the particularity of an indictment for
In United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, at
page 591, which involved an offense similar to the instant one,
it was stated:
"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 * * *."
The instant Count One of the indictment more than meets the
requisites outlined in the Wong Tai case, supra. The time, place,
participants, and overt acts delineated, define the alleged
conspiracy with sufficient specificity.
The respective motions of defendants Hirsch and Melekh to
dismiss Count One are denied.
Motions of Melekh and Hirsch to Dismiss Counts Two and Three of
the Indictment. Both defendants Melekh and Hirsch move to dismiss
Counts Two and Three of the indictment for failure to state an
offense against the United States, and Hirsch additionally moves
for its dismissal on the ground of improper venue. Melekh later
joined in this aspect of the motion.
Counts Two and Three charge a violation by conspiracy between
the defendants to induce, or to aid and abet, in the inducement
of a United States citizen to act as an agent of the U.S.S.R.
without prior notification to the Secretary of State, in
violation of 18 U.S.C. § 951. By a tortured logic, defendants
contend that the counts cannot stand if said Section 951 were not
applicable to the person so to be induced. They reason that § 951
is not applicable to such person because § 951 is in conflict
with the Foreign Agents Registration Act of 1938, 22 U.S.C.A. §§
611-621, and therefore was superseded by it, except as to those
persons not within the purview of the later act. They contend
that if this construction were not adopted a person complying
with the Foreign Agents Registration Act would ipso facto be
violating § 951.
The Court finds no inconsistency between 18 U.S.C. § 951,
making it a criminal offense punishable by not more than $5,000
and/or ten years, for one to act as an agent of a foreign
government without prior notification to the Secretary of State,
and 22 U.S.C.A. § 612(a) which requires every person who becomes
an agent of a foreign principal to register with the Attorney
General within ten days after becoming such agent, and prescribes
a $10,000 and/or five-year penalty. The one could be for the
purpose of clarification of diplomatic ramifications and the
other for security measures. The registering officials are
different; the times are different. Nor is the difference in
prescribed time for registration necessarily incompatible.
Furthermore, as is pointed out by the Government, Section 13 of
the Foreign Agents Registration Act provided that
"This Act is in addition to and not in substitution
for any other existing statute." 22 U.S.C.A. p. 234.
Finally, because of the later date of enactment of the Criminal
Code, Section 951 of Title 18 was in fact enacted later than 22
U.S.C.A. § 612.
Contention is further made that the requirement of registration
is in violation of the constitutional privilege against
self-incrimination, in that § 612, Title 22, at least requires
registration within ten days after becoming a foreign agent.
It is intimated in United States v. Kahriger, 1953,
345 U.S. 22, at page 32, 73 S.Ct. 510, at page 515, 97 L.Ed. 754, that one
failing to take the action required
has no standing to raise the contention of unconstitutionality of
the statute assailed. The Court said:
"`If the form of return provided called for answers
that the defendant was privileged from making he
could have raised the objection in the return, but
could not on that account refuse to make any return
at all.' [United States v. Sullivan] 274 U.S. 
at page 263 [47 S.Ct. 607, 71 L.Ed. 1037]."
The Court goes on, additionally, to point out that in any event
the statutory requirement of registration — in that case of
persons engaged in the occupation of accepting wagers — was not
unconstitutional, because the statute concerned future acts, and
the constitutional protection covered only past deeds. It said
(345 U.S. at page 32, 73 S.Ct. at page 515):
"Assuming that respondent can raise the
self-incrimination issue, that privilege has relation
only to past acts, not to future acts that may or may
not be committed. 8 Wigmore (3d ed., 1940) §
2259(c). * * * Under the registration provisions of
the wagering tax, appellee is not compelled to
confess to acts already committed, he is merely
informed by the statute that in order to engage in
the business of wagering in the future he must
fulfill certain conditions."
As the Court reads the statute, 22 U.S.C.A. § 612 requiring an
agent of a foreign principal to register within ten days after
becoming such agent, it means not later than ten days after
becoming such agent — there is no prohibition against an earlier
registration. One able to make a timely registration with
noncriminal consequences but failing to make any registration at
any time is hardly in a position to challenge the
constitutionality of the statute. Furthermore, the occupations
governed by the registration statute in this case, § 591, Title
18, could generally be deemed far more innocuous in character
than that of the occupation of accepting wagers, which was being
considered and held valid in the Kahriger case, supra.
As the Government points out, Counts Two and Three do not
charge a conspiracy to commit espionage or any crime other than
violation of the registration requirement. We have therefore a
situation where a statute requires registration although no
future criminal activity is anticipated. Such a statute is not
unconstitutional because incidentally it might be applicable to
one about to be criminally engaged. The case of Communist Party
of United States of America v. Subversive Activities Control
Board, 1954, 96 U.S.App.D.C. 66, 223 F.2d 531, is supportive of
Defendant Melekh individually contends that Counts Two and
Three should be dismissed as to him because as an employee of the
United Nations (hereinafter termed U.N.) he is granted specific
exemption under the statute, 22 U.S.C.A. § 288d(a), and that
while the indictment in those counts does not charge Melekh
personally with failure to register, they achieve the same end by
charging him respectively with conspiring and aiding. As the
Court understands the intent of this act it is to grant a
personal exemption to such person as to his own liability for
registration. There is no reason to suppose that carte blanche
privileges were thereby to be accorded the immune person's
activities in respect to third parties not so immune. Such
activities could hardly be construed to fall within the
"immunities of a governmental nature" which defendant contends
follows from the Committee Report on the Act (1945 U.S.Code Cong.
Service, p. 946). Furthermore, one can be guilty as an aider and
abettor, though himself incapable of committing the principal
crime (Haggerty v. United States, 7 Cir., 1925, 5 F.2d 224).
While conceding that a charge of conspiracy need not state the
substantive criminal object of the conspiracy with detail, the
defendants staunchly maintain that Count Two must fail because no
criminal object of the conspiracy is alleged. They contend it is
not stated that the United States citizen who was the center of
the conspiracy is not alleged to have known that he was acting as
an agent for a foreign government, and therefore without such
knowledge cannot be an agent.
The discussion upon the first motion concerning the phraseology
of an indictment for conspiracy is equally applicable to this
contention. A reading of Count Two would make it quite clear that
the person who was the subject-matter of the conspiracy was fully
cognizant of his role as an agent for a foreign government.
Defendants further contend that Counts Two and Three do not
properly lie in the Northern District of Illinois inasmuch as the
statutory duty of registration which defendants are alleged to
have violated was fulfillable only by registration with the
Secretary of State in Washington, D.C. Again, defendants have
glossed over the precise charges of the indictment, i.e.,
conspiracy, and aiding and abetting another to violate the
statutory duty of registering. The alleged criminal conspiring,
and aiding and abetting, are stated in the said counts to have
occurred in the Northern District of Illinois and are therefore
cognizable in this district. As Judge Duffy long ago said in
United States v. Buerk, D.C. 1941, 38 F. Supp. 409, at page 411,
"The proper venue to try a violator * * * would be
in the district where he acted as agent without
having given prior notification to the Secretary of
The case of Travis v. United States, 364 U.S. 631, 81 S.Ct. 358,
5 L.Ed.2d 340, is fully supportive of this court's venue in this
cause. The cases are legion that jurisdiction or venue of the
crime of conspiracy is proper in the district where the
conspiracy was formed or an overt act performed. Annotation to
18 U.S.C. § 371, notes 275, 276.
The motions of Melekh and Hirsch to dismiss Counts Two and
Three for failure to state an offense and improper venue are
Motions of Melekh and Hirsch for a Bill of Particulars. Each of
the defendants, Melekh and Hirsch, has filed a voluminous,
detailed request for a bill of particulars. Their examination
indicates that except in one respect, later discussed, the
defendants have misconceived the function of a bill of
particulars and are attempting to extract, not the details of the
charge against them but the minutiae of evidence as well. A
reading of the indictment, summarized above, shows that on the
whole the defendants have been apprised in far greater detail
than Rule 7(c) of the Federal Rules of Criminal Procedure, 18
U.S.C. demands. That Rule states the indictment "shall be a
plain, concise and definite written statement of the essential
facts constituting the offense charged."
It has been said that "The office of a bill of particulars is
to inform the accused of the nature of the charge with sufficient
precision to enable him to prepare for trial, to prevent surprise
or to plead his acquittal or conviction in bar of another
prosecution for the same offense." Cyclopedia of Federal
Procedure, § 42.198. The same authority points out however that
"it is not the function of the bill of particulars to force the
government to reveal its evidence in advance of the trial." Ibid.
The language of the Supreme Court in the Wong Tai case,
273 U.S. 77, at page 82, 47 S.Ct. 300, at page 302, 71 L.Ed. 545,
seems to the Court particularly applicable in the instant case.
It was said:
"The defendant also made a motion, * * * for a
detailed bill of particulars, setting forth with
particularity the specific facts in reference to the
several overt acts alleged in the indictment, with
various specifications as to times, places, names of
persons, quantities, prices, containers, buildings,
agencies, instrumentalities, etc., and the manner in
which and the specific circumstances under which they
This motion — which in effect sought a complete
discovery of the Government's case in reference to
the overt acts — was denied on the ground that the
indictment was sufficiently definite in view of the
unknown matters involved and the motion called `for
too much details of evidence.'
"The application for the bill of particulars was
one addressed to the sound discretion of the court,
and, there being no abuse of this discretion, its
action thereon should not be disturbed * * *."
The motion of Hirsch seeks to know: the kind and nature of
documents as to which he is alleged to have conspired; which
forts, batteries, etc., the conspiracy was to get material about
and whether such material was obtainable from a legally
accessible source; which defendants are alleged to have conspired
to induce the citizen to procure the material; what the
inducement was, whether it was given, by whom, and where; the
name of the citizen sought to be induced; the names of those
activated to procure information; the information sought; the
acts of defendants done to activate the individuals; the names of
the individuals referred to in the overt acts; whether they are
the same; which overt acts are claimed to have been known to
defendant Hirsch; the aid which the defendants conspired to give
the citizen to act as agent of the U.S.S.R.; what aid was
actually given; what abetment was conspired to be given or was
actually given, and to whom, where, and by whom; what counsel was
conspired to have been given a citizen to act as agent of
U.S.S.R., and what counsel was actually given, and where, when
and by which defendant; what inducement was conspired to have
been given a citizen to act as an agent of the U.S.S.R., and what
if any was actually given, where, when and by which defendant;
what procurement was conspired to be given a citizen to act as an
agent of the U.S.S.R., or was actually given, where, when and by
which defendant; what means were used to conceal the existence of
the conspiracy; what aid was given by Melekh to Hirsch to commit
the crime, and when and where it was given; what abetment Melekh
gave Hirsch, and when and where it was given; what counsel Melekh
gave Hirsch, and when and where it was given; what command Melekh
gave Hirsch to commit the crime, and when and where it was given;
what inducement Melekh gave Hirsch, and when and where it was
given, and similarly as to what procurement Melekh gave to
Defendant Melekh moves by his bill of particulars to ascertain
inter alia whether the conspiracy consisted of any specific
agreement, and the time, place and circumstances of the making of
each such agreement, and the name and address of each party
thereto or present at its making; what specified military
installations are referred to both within and without Chicago;
whether the information was restricted by virtue of a law,
regulation or order, and if so which such ruling; what
information relating to the national defense is referred to; what
supervision it is claimed Melekh gave; who were the "certain"
co-conspirators; what acts constituted the activating by
defendants as stated by Paragraph 5, Count One; where, when, and
in what circumstances and connections and for what purposes
Melekh used the pseudonym; what were the specific assignments
referred to in the indictment and the exact dates and places of
overt acts; to whom did Hirsch identify himself as John Gilmore;
the description of slip of paper on which Melekh is claimed to
have written, and for what purpose; similarly, the purpose for
which Melekh gave money as stated in certain overt acts, and the
purpose for which co-conspirator Doronkin did the acts referred
to; clarification of the term "the vicinity of"; the physical
description and subject matter of the map and photographs; the
manner in which the defendant aided, induced, etc., the act
alleged; whether the citizen knew or was to know he was acting as
an agent of the U.S.S.R.; what other valuable considerations were
to be received by the alleged citizen; whether the said citizen
knowingly to transmit the information to the U.S.S.R.;
specification as to whom Melekh was to use fictitious names; what
other means were to be used for concealment of the conspiracy;
what agents of the U.S.S.R. requested Hirsch to commit the stated
acts, and the time, place and means thereof; and what manner
Melekh aided, abetted, etc., the offense by Hirsch.
Bearing in mind the overall detailed statement of the alleged
offenses in the indictment and the function of a bill of
particulars, the Court concludes that except in one respect, the
indictment meets the requirements of advising the defendants of
the charge they are to meet, the locales, the times, and the
objects of the conspiracy. The Court is of the opinion that the
further details which the defendants seek are as to matters
purely evidentiary in character, and are an unwarranted attempt
to ascertain the complete case of the Government in advance and
further to limit the scope of the evidence the Government may
adduce on the trial. Rubio v. United States, 9 Cir., 1927,
22 F.2d 766; United States v. Rosenberg, D.C.S.D.N.Y. 1950, 10
F.R.D. 521; Wainer v. United States, 7 Cir., 1936, 82 F.2d 305;
United States v. Greater Kansas City Retail Coal M. Ass'n,
D.C.W.D.Mo. 1949, 85 F. Supp. 503; United States v. Malinsky,
D.C.S.D.N.Y. 1956, 19 F.R.D. 426; United States v. Ansani, 7
Cir., 1957, 240 F.2d 216; Land v. United States, 4 Cir., 1949,
177 F.2d 346; United States v. Chapman, 7 Cir., 1948,
168 F.2d 997.
In respect to the one exception, i.e., discovery of the name of
the "citizen of the United States" and the "individuals" or
"individual" referred to in the indictment as being the alleged
tool to effect the object of the conspiracy, the Government
stated on oral argument of the motion that all these allegations
referred to but one and the same person, and indicated
willingness to file a formal document to that effect. The
Government further indicated that it had every intention of
producing the person as a witness in this case; it was reluctant
however to spread the person's name on the record and felt "the
interests of the Government should be protected to the extent
that * * * [it] be permitted to retain as a secret at least
between counsel and the parties, until such time as the case
comes to issue and the witness is called to the stand, the name,
street address and specific identity of that person." The
Government's brief upon this motion also states that the identity
would be fully disclosed to the defendants upon the trial; and
that in any event if he is not called by the Government as a
witness his identity will be furnished to the defendants in
advance of trial.
In view of the Supreme Court's ruling in Roviaro v. United
States, 1957, 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639, the Court
concludes that justice requires prior to trial the disclosure to
the defendants of the identity of the United States citizen.
The respective motions of the defendants for a bill of
particulars are denied except that the name of the United States
citizen mentioned in the indictment is to be disclosed to the
defendants two weeks prior to the date of trial. If the
Government deems protective or restricted disclosure necessary,
it may make appropriate application.
Motion of Melekh to strike improper matter from the caption and
body of the indictment. Melekh moves to have stricken the phrases
indicating an alias, appearing in the caption and body of the
indictment. In those phrases he is referred to as "also known as
Peter Stephen and also known as `Gipsy'" and he complains of the
reference to defendant Hirsch as "also known as John Gilmore." He
contends that those phrases will be unduly prejudicial as
indicating that the defendants used fictitious names and would
put the defendants in an "opprobrious light," and if the
Government fails to prove the use of those names nothing
pertaining to the use of aliases should be before the jury.
The Court concludes that this motion is premature. If the use
of aliases be proved by the Government, and that the
use of the aliases was an integral part of the conspiracy, the
defendants have no just cause for complaint at being so
described. Judge Major said long ago in United States v.
Solowitz, 7 Cir., 1938, 99 F.2d 714, at page 715:
"It is also urged that appellant was prejudiced by
charging him and his co-defendant under a number of
aliases. True, this practice has been criticised by
some courts, and we think, not without merit. Of
course, if a person has used names other than his
right name, as the record discloses was the case so
far as appellant is concerned, and the Government
proves such aliases, there can be no legitimate
complaint. Otherwise, it is not difficult to see how
a defendant might be prejudiced before a jury. We do
not believe, however, the aliases attached to
appellant's co-defendant, under the circumstances
shown to exist, could have had any harmful effect as
to appellant." (Italics added.)
The Cyclopedia of Federal Procedure, § 42.66, says:
"If the defendant has an alias, it is proper and
sometimes necessary to state it." (Italics added.)
The motion to strike the phrases stating aliases is denied.
Re Request of Defendant Hirsch for Discovery as to Grand Jury
Minutes. The third aspect of the motion of defendant Hirsch for
discovery (the other two aspects are being reserved for decision)
pertains to discovery which he seeks of "All books, papers,
writings, sketches, documents, maps, photographs, photographic
negatives, notes, recordings on tape, wire or other mechanism,
and all other objects obtained by the United States from
others * * * which * * * were presented to the grand jury in
connection with the return of the indictment herein." Defendant
Hirsch, in his motion to dismiss the indictment, also, as an
alternative seeks leave to examine the minutes of the Grand Jury
to establish the Government's failure to introduce evidence of
the "secrecy" of the "information" subject of the charge. It is
the defendant's contention that the disclosure is to be made
"Where there is reason to believe that the evidence presented to
the Grand Jury was insufficient to charge the crime — and,
therefore, the indictment is subject to dismissal on that
ground," citing United States v. Weber, 2 Cir., 1952,
197 F.2d 237; United States v. Geller, D.C.S.D.N.Y. 1957, 154 F. Supp. 727;
United States v. Holmes, 3 Cir., 1948, 168 F.2d 888; United
States v. Bridges, D.C.N.D.Cal. 1949, 86 F. Supp. 922. The
Government, however, cites Costello v. United States, 1956,
350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397, wherein the Supreme Court
declined to establish a rule permitting defendants in criminal
cases to challenge indictments on the ground that they are not
supported by adequate or competent evidence.
The cases are legion which hold that the disclosure of grand
jury minutes is discretionary with the trial court; that a strong
and positive showing is required of persons seeking to break the
seal of secrecy surrounding grand jury proceedings. United States
v. Brennan, D.C.Minn. 1955, 134 F. Supp. 42; United States v.
Alper, 2 Cir., 1946, 156 F.2d 222; United States v. Schack,
D.C.S.D.N.Y. 1958, 165 F. Supp. 371; United States v. Procter &
Gamble Co. et al., 1958, 356 U.S. 677, 78 S.Ct. 983, 2 L.Ed.2d
1077; United States v. Socony-Vacuum Oil Co., 1940, 310 U.S. 150,
60 S.Ct. 811, 84 L.Ed. 1129; United States v. Rose, 3 Cir., 1954,
215 F.2d 617; In Matter of April 1956 Term Grand Jury, 7 Cir.,
1956, 239 F.2d 263; Goodman v. United States, 9 Cir., 1939,
108 F.2d 516, 127 A.L.R. 265; United States v. Skurla, D.C.W.D.Pa.
1954, 126 F. Supp. 711; United States v. Central Supply Ass'n,
D.C.N.D.Ohio 1940, 34 F. Supp. 241; United States v. Smyth,
D.C.N.D.Cal. 1952, 104 F. Supp. 283.
The Court is of the opinion that in view of the traditional
guard of secrecy granted grand jury proceedings and in view of
the detail of the incidents of the conspiracy outlined in the
has not made the strong showing that is required to overcome the
policy against disclosure. The request for disclosure of the
grand jury minutes or evidence adduced before it is denied.
Motion of Melekh to Dismiss on Basis Exclusive Jurisdiction of
Cause is in Supreme Court. Defendant Melekh has moved for the
dismissal of this proceeding on the ground that exclusive
jurisdiction of the cause is in the United States Supreme Court.
The bases for this contention are Article III, Section 2, Clause
2 of the United States Constitution which provides that
"In all Cases affecting Ambassadors, other public
Ministers and Consuls * * * the supreme Court shall
have original Jurisdiction * * *"
and the statute, 28 U.S.C. § 1251, which provides similarly, that
"The Supreme Court shall have original and
exclusive jurisdiction of: * * * (2) All actions or
proceedings against ambassadors or other public
ministers of foreign states or their domestics or
domestic servants, not inconsistent with the law of
nations * * *."
It is defendant Melekh's position that he is a "public
minister" which fact would defeat this Court's jurisdiction.
The facts in respect to this defendant, as disclosed by the
pleadings and exhibits, are that he is an employee of the United
Nations Secretariat, employed as Chief of the Russian language
section in the Office of Conference Services of the Secretariat
of the United Nations, as a result of a request from the United
Nations. He is a Soviet citizen with the diplomatic rank in
Russia of Second Secretary of the Ministry of Foreign Affairs of
the U.S.S.R., conferred upon him in accordance with the
provisions of the Decree of the Presidium of the U.S.S.R. Supreme
Soviet dated May 22, 1943. He entered the United States having a
Soviet (not an American) Diplomatic passport on a non-immigrant
G-4 visa bearing the notation "Employee of U.N. Secretariat."
This G-4 visa is of an alien qualified to pass to and from the
U.N. Headquarters under Section 11 of the Headquarters Agreement
of the United Nations, 61 Stat. 758 (8 U.S.C.A. § 1101(a) (15)
The Chief of Protocol, Department of States, certifies that
"I am responsible for the maintenance in the
Department of State and have custody of the official
records of the Government of the United States
regarding (1) the names and status of ambassadors and
other public ministers accredited to the United
States by foreign governments and received as such by
the President in accordance with Article II, Section
3 of the Constitution; and (2) the names and status
of all other persons who have been notified to and
recognized or accepted by the United States in any
capacity which entitles them to diplomatic immunity
in the United States pursuant to the Constitution and
the laws of the United States made in pursuance
thereof and treaties and other international
agreements in force between the United States and
other governments. * * * I have caused diligent
search to be made of such records and have found no
record to exist that Mr. Igor Y. Melekh was ever
accredited to the United States, or that the said Mr.
Igor Y. Melekh was ever notified to and recognized or
accepted by the United States in any capacity which
would entitle him to diplomatic immunity."
The Department of State has stated to the Embassy of the
U.S.S.R. by note dated November 10, 1960, that
"Mr. Melekh has not been accredited to and received
by the United States as a diplomatic officer nor as a
resident member of a permanent mission to the United
Nations within the meaning of Section 15 of the
United Nations Headquarters Agreement."
The Government's position that Melekh is not present in this
country as a representative of the U.S.S.R. to this country is
clearly borne out by this documentary evidence. The Court
concludes that Melekh cannot qualify as a "public minister" as
the term is used in the Constitution and in the statute.
The Court has no quarrel with defendant's contention for an
elastic construction of the Constitution (as called for by United
States v. Classic et al., 1941, 313 U.S. 299, 61 S.Ct. 1031, 85
L.Ed. 1368) to permit its basic concepts to grow with the
inevitable growth and complexities of an expanding civilization.
It may be granted that the purpose of investing the United States
Supreme Court with sole jurisdiction of proceedings involving
foreign public ministers and their retinues was designed to
maintain international peace and "high considerations of public
policy" (Ex parte Gruber, 1925, 269 U.S. 302, 303, 46 S.Ct. 112,
70 L.Ed. 280; similarly, Ex parte Hitz, 1884, 111 U.S. 766, 4
S.Ct. 698, 28 L.Ed. 592). However, the Court does not conceive it
to have been the intention of the drafters of the Constitution to
burden the United States Supreme Court with the solution of legal
proceedings not involving representatives of a foreign nation,
stationed here, who had no truly diplomatic function.
Assuming the validity of defendant's argument that the phrase
"public minister" covers not only the high ranking official, but
the lowliest one as well, the Court is of the opinion that there
inheres in the word "minister" the thought of representation,
such as is clear from defendant's quotation from In re Baiz,
1890, 135 U.S. 403, at page 419, 10 S.Ct. 854, at page 858, 34
"These agents may be called ambassadors, envoys,
ministers, commissioners, charges d'affaires, agents,
or otherwise, but they possess in substance the same
functions, rights, and privileges as agents of their
respective governments for the transaction of its
diplomatic business abroad."
Fully supportive of this view are the decisions in United States
v. Coplon, D.C.S.D.N.Y. 1949, 84 F. Supp. 472; D.C.S.D.N.Y. 1950,
88 F. Supp. 915.
This Court adopts the learned opinion of Judge Herlands of the
United States District Court for the Southern District of New
York, 190 F. Supp. 67, 81, and his analysis of the many
authorities in their application to this issue. He was correct in
all of its aspects, and there is therefore no need to belabor
again the contentions of defendant Melekh on this motion.
The motion to dismiss on the basis that exclusive jurisdiction
of this proceeding is in the Supreme Court is denied.
Motion of Defendant Melekh to Dismiss Indictment on the ground
of immunity under U.N. Charter and International Law. Defendant
Melekh also moves to dismiss the indictment against him upon the
ground that he is entitled to immunity under the provisions of
the United Nations Charter and the principles of international
law. Conceding that Judge Herlands' opinion extensively discusses
the issue he centers his attack upon that opinion. He cites
Article 105 of the Charter, Section 2, which provides that
"Representatives of the Members of the United
Nations and officials of the organization shall
similarly enjoy such privileges and immunities as are
necessary for the independent exercise of their
functions in connection with the Organization." 59
Judge Herlands describes the immunity as a "functional" immunity,
but defendant states that description is ambiguous in that a
functional immunity may refer to immunity from arrests for acts
done in the exercise of one's official functions or to arrests
and prosecutions which would interfere with one's performance of
his official functions. Defendant contends Judge Herlands'
rejection of the
"natural" construction was in error, in taking the first
construction. Defendant stresses the latter construction on the
ground that an arrest would impede the exercise of any function,
and consequently the United Nations Organization itself.
Defendant further contends that on analogy to the construction
ascribed by writers to the exemption under the League of Nations
Covenant, he is entitled to "immunity from arrest and prosecution
`throughout the whole period' for which he held his United
The Court is in complete accord with the ruling of Judge
Herlands, as well as those of Judge Ryan and Judge Rifkin in the
Coplon cases (D.C.S.D.N.Y. 1950, 88 F. Supp. 915; D.C.S.D.N Y
1949, 84 F. Supp. 472).
The motion to dismiss the indictment on the ground of immunity
under the provisions of the United Nations Charter and the
principles of international law is denied.
Motion to Strike Overt Acts 8 and 10 from Count Two of the
Indictment. Defendants challenge the propriety of the inclusion
of Overt Acts 8 and 10 in Count Two by reference from Count One.
These two overt acts concern activity by Kirill S. Doronkin.
Count Two names as co-conspirators solely Melekh and Hirsch, and
other persons to the Grand Jury unknown. Defendants assert that
since it is self-evident from the allegations of Count One that
Doronkin was known to the Grand Jury, he may not be included
under the catch-all phrase "other persons to the Grand Jury
unknown," and his overt acts are improper in Count Two, he not
being a co-conspirator named in said Count. The Government
refutes this contention with the holding of Jones v. United
States, 9 Cir., 1910, 179 F. 584, wherein it was held there was
not a fatal variance between indictment and proof because the
indictment charged that defendants conspired with each other and
with others to the grand jurors unknown, while the evidence
showed that the name of another conspirator was in fact known,
where the indictment fully set out his connection with the
conspiracy, designating him by name so as to clearly advise the
defendants of the charge against them.
It has been consistently held that an indictment is not subject
to an attack of variance where it is disclosed by the evidence
that the jury in fact knew the name of a co-conspirator but
failed to state it. It was so held by this Circuit in Fox v.
United States, 7 Cir., 1930, 45 F.2d 364; Jones et al. v. United
States, 4 Cir., 1926, 11 F.2d 98; Leverkuhn v. United States, 5
Cir., 1924, 297 F. 590; United States v. Heitler, D.C.N.D.Ill.
1921, 274 F. 401.
The Court of Appeals for the Seventh Circuit in the very recent
decision in United States of America v. Gasoline Retailers
Association, Inc. et al., 7 Cir., 285 F.2d 688, at page 691,
decided January 12, 1961, speaking through Judge Castle, said:
"It is contended by appellants that the indictment
was insufficient and should have been dismissed
because it failed to list the names of some of the
co-conspirators whose names were known to the
government and the grand jury.
"Rule 7(c) of the Federal Rules of Criminal
Procedure provides that the indictment shall be `a
plain, concise and definite written statement of the
essential facts constituting the offense charged' and
`need not contain * * * any other matter not
necessary to such statement.' The indictment in this
case did set forth `essential facts' constituting the
offense of conspiracy in restraint of trade, and
there was no need to set out the particular names or
identity of possible witnesses who at the trial might
prove to have been co-conspirators. United States v.
Glasser, 7 Cir., 1941, 116 F.2d 690. We are of the
opinion that it was not necessary for the indictment
to specify the names of co-conspirators even though
they were known to the grand jury." (Italics
Additionally, it may not be amiss to point out that the very
overt acts, which defendants seek to strike, and which were
incorporated by reference, themselves state Kirill S. Doronkin to
be a "co-conspirator herein." Of course, he is also so
denominated in the first paragraph of Count One.
The Court therefore concludes there is no basis for the
defendants' motion to strike overt acts 8 and 10 from Count Two
of the indictment, and the motion is therefore denied.
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