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UNITED STATES v. MELEKH

March 20, 1961

UNITED STATES OF AMERICA, PLAINTIFF,
v.
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.

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 determined are:

1. Motion to dismiss Count One of the indictment for failure to state facts sufficient to constitute an offense against the United States.

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 indictment.

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 are:

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 States.

3. Motion for bill of particulars.

4. Motion to strike overt acts 8 and 10 from Count Two of the indictment.

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
  government."

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.'"
  (Italics supplied.)

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 that offense.

In United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, at page 591, which involved an offense similar to ...


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