# United States v. Enger

> District Court, D. New Jersey · August 25, 1978 · 472 F. Supp. 490

URL: https://www.frixlaw.com/law-library/cases/2124454

## Case

- **Full name:** UNITED STATES of America v. Valdik Aleksandrovich ENGER and Rudolf Petrovich Chernyayev, Defendants
- **Court:** District Court, D. New Jersey
- **Decided:** August 25, 1978
- **Citations:** 472 F. Supp. 490
- **Precedential status:** Published
- **Opinion:** Opinion by Lacey
- **Judges:** Lacey
- **Cited by:** 16 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2124454

## How later opinions describe it (automated extraction)

- concluding that the proposition that a thief has no “interest in the property as against the rightful owner” is “so well settled as to require no elaborate citation of authority in its support”
- observing that article 36 does not affect "the various privileges and immunities accorded representatives of foreign governments"

## Opinion text

MEMORANDUM OPINION
LACEY, District Judge.
The defendants, citizens of the Union of Soviet Socialist Republics, are charged in a three-count indictment with conspiracy to violate 18 U.S.C. §§ 793 (g) and 793(a) and aiding and abetting in violation of 18 U.S.C. §§ 793 (b) and 2.
1
They are now before the
*495
court on a variety of motions, which I shall consider in the order in which they are raised by the defendants’ memorandum of law.
I.
The defendants have moved for dismissal of the indictment, contending they are entitled to the protection of diplomatic immunity-
The factual predicate for the defendants’ claim of immunity rests primarily on letters submitted to the court on behalf of the defendants by the U.S.S.R. Ambassador to the United States, Hon. Anatoly F. Dobrynin, and Hon. Erik Suy, Legal Counsel to the United Nations. Defendants themselves have filed no affidavits in their own name. Hence there are here lacking facts explaining why their United Nations vocations required their presence in New Jersey, or a contention by the defendants that they were not in New Jersey at the times alleged by the United States.
Ambassador Dobrynin’s letters, attached as Exhibit A to the defendants’ notice of motion, are formal claims of immunity by the U.S.S.R. An identical claim of immunity is made for each of the defendants. The following is the complete text of each letter:
CLAIM OF DIPLOMATIC IMMUNITY
I, Anatoly F. Dobrynin, Ambassador of the Union of Soviet Socialist Republics to the United States of America, hereby have the honor to draw your attention to the fact that the Soviet Citizen Rudolf Petrovich Chernyayev has a diplomatic rank of Second Secretary conferred on him in accordance with the provisions based on the decree of the Presidium of the U.S.S.R. Supreme Soviet of May 28, 1943.
The Government of the Soviet Union made available the services of Mr. Chernyayev as an Administrative Officer in the United Nations Secretariat, and Nr. Chernyayev accepted this post with the knowledge and consent of the Government of the Soviet Union.
Mr. Chernyayev arrived in the United States in May, 1974, having a Soviet diplomatic passport no. 015793 and since that time has been attached to the Secretariat. of the United Nations.
The Secretariat of the United Nations at all these times had knowledge of the fact that Mr. Chernyayev retained and retains at the present time his diplomatic rank.
*496
I hereby, in the name of the Government of the Union of Soviet Socialist Republics and in conformity with the applicable principles of international law claim immunity from arrest and prosecution on behalf of Rudolf Petrovich Chernyayev and respectfully request that the Indictment against him be dismissed.
Anatoly F. Dobrynin (signature) Anatoly F. Dobrynin,
Ambassador
CLAIM OF DIPLOMATIC IMMUNITY
I, Anatoly F. Dobrynin, Ambassador of the Union of Soviet Socialist Republics to the United States of America, hereby have the honor to draw your attention to the fact that the Soviet Citizen Valdik Aleksandrovich Enger has a diplomatic rank of Second Secretary conferred on him in accordance with the provisions based on the decree of the Presidium of the U.S.S.R. Supreme Soviet of May 28, 1943.
The Government of the Soviet Union made available the services of Mr. Enger in the office of Political and Security Affairs at the United Nations Secretariat, and Mr. Enger accepted this post with the knowledge and consent of the Government of the Soviet Union.
Mr. Enger arrived in the United States in December 1973 having a Soviet diplomatic passport no. 012841 and since that time has been attached to the Secretariat of the United Nations.
The Secretariat of the United Nations at all these times had knowledge of the fact that Mr. Enger retained and retains at the present time his diplomatic rank.
I hereby, in the name of the Government of the Union of Soviet Socialist Republics and in conformity with the applicable principles of international law claim immunity from arrest and prosecution on behalf of Valdik Aleksandrovich Enger and respectfully request that the Indictment against him be dismissed.
Anatoly F. Dobrynin (signature) Anatoly F. Dobrynin,
Ambassador
The Dobrynin letters do not contend that either defendant is, or at any material time was, duly designated by the U.S.S.R. to serve as its representative to the United Nations, that either is or was on the staff of the U.S.S.R. delegation to the United Nations, or that either ever performed or was ever assigned to perform any diplomatic duties on behalf of the U.S.S.R. in its relations with the United States (or any other government) while residing in this country. Instead, the letters do not go beyond stating that the defendants, from the time of their separate arrivals in the United States from the U.S.S.R., have been “attached to the Secretariat of the United Nations,” while retaining their diplomatic ranks as conferred on them by their government.
The nature of their employment with the United Nations is set forth in the letter of The Legal Counsel to the United Nations, dated June 23, 1978, attached as Exhibit B to the defendants’ notice of motion. The following is the full text of Mr. Suy’s letter:
I wish to refer to your request for certain information regarding two officials of the United Nations Secretariat, Mr. Valdik Enger and Mr. Rudolf Chernjaev (sic).
I understand your request to relate to the officials’ titles and functions, as well as to their official status, within the United Nations Secretariat.
In respect of Mr. Enger, I wish to inform you that his title is “Political Affairs Officer”, and that his grade is P-4. For your information I recall that the ranks of the Secretariat’s professional staff is as follows in descending order:
Secretary-General
Under-Secretary-General
Assistant Secretary-General
Director 2
Director 1
Professional 5
Professional 4
Professional 3
Professional 2
Professional 1
*497
In addition there are other categories of staff, generally of lower rank, such as general service staff, manual workers and guards.
As far as Mr. Enger’s functions are concerned, I wish to advise that he was appointed a member of the Unit for Coordination and Political Information, Office of the Under-Secretary-General for Political and Security Council Affairs. A comprehensive description of the responsibilities and functions of that unit is set out in the relevant part of the Secretary-General’s bulletin concerning the organization of the Secretariat, namely ST/SGB/Organization, Section I (and Amendment 1), Department of Political and Security Council Affairs, a copy of which is enclosed.
In respect of Mr. Chernjaev (sic) I wish to inform you that his title is “Administrative Officer”, and that his grade is P-3. He was appointed a member of the Training and Examinations Service, Office of Personnel Services. A comprehensive description of the responsibilities and functions of the Training and Examinations Service is contained in the relevant part of the Secretary-General’s bulletin on the organization of the Secretariat namely, ST/SGB/Organization, Section P(II), Office of Personnel Services, a copy of which is enclosed.
As far as the present employment status of Mr. Enger and Mr. Chernjaev (sic) is concerned, I wish to advise that pending the action against them in the United States District Court for New Jersey they are placed on special leave with full pay, but that they remain officials of the Secretariat.
Sincerely,
Erik Suy (signature)
Erik Suy
The Legal Counsel
The attachments to the Suy letter indicate that the responsibilities of the defendants, in their employment with the United Nations, include the following.
The defendant Enger is a Political Affairs Officer attached to the Unit for Coordination and Political Information, Office of the Undersecretary General for Political Information. The responsibilities of the Department of Political and Security Counsel Affairs are described, as follows: .
Provides secretariat services for the Security Council and its subsidiary bodies, including the Committee established in pursuance of Security Council resolution 253 (1968), the Committee of Admission of New Members, the Military Staff Committee, the Committee on Council Meetings away from Headquarters, the
Ad Hoc
Sub-Committee on Namibia, and for the First Committee and the Special Political Committee of the General Assembly and other General Assembly committees and bodies concerned with matters relating to the maintenance of international peace and security;
Provides secretariat services for the Conference of the Committee on Disarmament;
Follows, in accordance with Article 54 of the Charter, the activities of regional agencies pertaining to the maintenance of international peace and security;
Assists the Secretary-General in the discharge of his political responsibilities under the Charter and in pursuance of resolutions of United Nations organs.
The functions of the Unit for Coordination are described, as follows:
Assists in departmental co-ordination, programme planning and monitoring and evaluation of plan implementation;
Maintains relations with regional organizations, with the Office for Inter-Agency Affairs and Co-ordination and other units of the Secretariat and with the United Nations Institute for Training and Research and follows activities on non-governmental organizations relating to political questions;
Participates in sessions of the Preparatory Committee of the Administrative Committee on Co-ordination and arranges for the Department’s representation at conferences, etc.
The defendant Chernyayev, as an Administrative Officer, is a member of the Train
*498
ing and Examination Service, Office of Personnel Services. The functions of the Office of Personnel Services are described, as follows:
Recruits the staff of the Secretariat and of subsidiary organs of the United Nations;
Administers the staff of the United Nations, directly and through instructions issued to other units of the Secretariat;
Formulates and applies the personnel policy of the United Nations;
Co-operates with specialized agencies and the International Atomic Energy Agency with a view of developing common personnel policies;
Provides documentation on personnel matters for the Fifth Committee of the General Assembly;
Provides secretariat services and documentation for the joint administrative bodies dealing with personnel matters.
The functions of the Training and Examination Service are described, as follows:
Coordinates, evaluates and reviews the training activities of the Secretariat;
Advises and assists in the identification of the administrative and management training needs of the Secretariat and makes proposals in consultation with Staff Services for appropriate training programmes;
Plans and organizes orientation pro-grammes and secretarial supervisory and managerial training;
Plans and organizes the professional studies programme;
Plans and organizes the language training programmes of the Organization;
Plans and administers all examinations for the award of language proficiency certificates and for language allowances;
Administers the Russian language and interpreter training programmes in Moscow and liaises with the Inter-Agency Interpreter trainee programme in Geneva;
Organizes, co-ordinates and administers competitive examinations for recruitment to posts with professional requirements and to posts with special language requirements at all duty stations and tests for recruitment to all clerical and secretarial posts at Headquarters.
The defendants rely in part, as noted in their memorandum of law, on the contention that they hold diplomatic passports issued by the U.S.S.R. Such passports do not appear of record; neither have the defendants submitted affidavits to establish their existence. The United States, however, has submitted the affidavit of United States Foreign Service Officer James Alexander Smith to establish that both defendants Enger and Chernyayev were, at the time of their arrest, holders of valid G-4 visas. In addition, the United States has submitted visa applications made by the defendants. Since the defendants rely on the fact that they have diplomatic rank, it is in the interest of justice that I consider their effect on the defendants’ status for purposes of their immunity claim. Therefore, I will treat it as established that the defendants indeed held such passports.
Defendants’ claim of immunity is based solely upon “principles of international law.” Defendants’ Memorandum of Law in Support of Defendants’ Motions, 2. They emphasize that they do “not claim immunity as diplomats accredited to the United States . . . .” Defendants’ Reply Memorandum of Law in Support of Defendants’ Motions, 2. Instead, they claim “that they are diplomats who are present and functioning in this country as diplomats.”
Id.
The argument, it appears, is that the defendants are diplomats
de facto,
if not
de jure,
and thus are entitled to the perquisites of diplomatic status, including immunity from arrest and prosecution.
Their procedural course was wisely chosen. Their conceded lack of accreditation to the United States
2
prohibits them from in-
*499
yoking our statutes and binding treaties pursuant to which our nation confers privileges and immunities upon specified classes of foreign representatives. To understand the claim that is made, it is first necessary to discuss these statutory and treaty provisions.
The general diplomatic immunity statute, 22 U.S.C. § 252 , reads in pertinent part:
Whenever any writ or process is sued out or prosecuted by any person in any court of the United States whereby the person of any ambassador or public minister of any foreign prince or State, authorized and received as such by President ... is arrested or imprisoned . . . such writ or process shall be deemed void.
The word “minister,” as used in the above statute, is given a functional definition by 22 U.S.C. § 178 , which states:
The word “minister,” when used in sections . . . 251-258 ... of this title . . . shall be understood to mean the person invested with, and exercising, the principal diplomatic functions. .
The United States has submitted authenticated certificates of State Department officials stating:
TO WHOM IT MAY CONCERN:
This is to certify that I, Edith J. Do-belle, Chief of Protocol, United States Department of State, am responsible for registering and maintaining the records of the Department of State concerning the official status of officers and employees of foreign governments in the United States who are entitled to diplomatic immunity pursuant to Sections 252-254 of title 22 of the United States Code of the Agreement between the United States and the United Nations concerning the Headquarters of the United Nations, June 26, 1947, 61 Stat. 3416 , TIAS 1676. I am also responsible for registering and maintaining the records of the Department of State concerning the official status of representatives in or to international organizations, and officers and employees of such organizations, entitled to the privileges, exemptions and immunities granted by Sections 288-288f-2 of title 22 of the United States Code or the Convention of Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900.
I further certify that such records are maintained under my custody in the District of Columbia.
I have caused diligent search to be made of such records and have found no record which would indicate that Valdik A. Enger, a Soviet national employed by the United Nations Secretariat, is notified to and recognized by the Department of State in any capacity which would entitle him to diplomatic immunity pursuant to the above-mentioned Sections 252-254 of title 22 of the United States Code.
I further certify that records in my custody do not reflect that Mr. Enger is, or ever has been, the principal resident representative of a Member of the United Nations under Section 15(1) of the Headquarters Agreement, or that his name was ever notified to or accepted by the Department of State as a member of the staff of such a representative under Section 15(2) of that agreement.
I further certify that the only records in the Department of State regarding the official status of the said Mr. Enger list him as an employee of the United Nations Secretariat, entitled to the privileges and immunities granted by Sections 288-288Í-2 of title 22 of the United States Code and Section 18(a) of the Convention on Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900.
Edith J. Dobelle (signature)
Edith J. Dobelle
Chief of Protocol
Department of State,
Washington, July 7, 1978
Certification (Government Exhibit A-l)
*500
TO WHOM IT MAÍ CONCERN:
This is to certify that I, Edith J. Do-belle, Chief of Protocol, United States Department of State, am responsible for registering and maintaining the records of the Department of State concerning the official status of officers and employees of foreign governments in the United States who are entitled to diplomatic immunity pursuant to Sections 252-254 of title 22 of the United States Code or the Agreement between the United States and the United Nations concerning the Headquarters of the United Nations, June 26, 1947, 61 Stat. 3416 , TIAS 1676. I am also responsible for registering and maintaining the records of the Department of State concerning the official status of representatives in or to international organizations, and officers and employees of such organizations, entitled to the privileges, exemptions and immunities granted by Sections 288-288Í-2 of title 22 of the United States Code or the Convention of Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900.
I further certify that such records are maintained under my custody in the District of Columbia.
I have caused diligent search to be made of such records and have found no record which would indicate that Rudolf Chernyayev, a Soviet national employed by the United Nations Secretariat, is notified to and recognized by the Department of State in any capacity which would entitle him to diplomatic immunity pursuant to the above-mentioned Sections 252-254 of title 22 of the United States Code.
I further certify that records in my custody do not reflect that Mr. Chernyayev is, or ever has been, the principal resident representative of a Member of the United Nations under Section 15(1) of the Headquarters Agreement, or that his name was ever notified to or accepted by the Department of State as a member of the staff of such a representative under Section 15(2) of that agreement.
I further certify that the only records in the Department of State regarding the official status of the said Mr. Chernyayev list him as an employee of the United Nations Secretariat, entitled to the privileges and immunities granted by Sections 288-288Í-2 of title 22 of the United States Code and Section 18(a) of the Convention on Privileges and Immunities of the United Nations, 21 U.S.T. 1418, TIAS 6900.
Edith J. Dobelle (signature)
Edith J. Dobelle
Chief of Protocol
Department of State
Washington, July 7, 1978
Certification (Government Exhibit A-2)
These certificates conclusively establish that the defendants are not ministers within the statutory definition and thus are not entitled to the protection of 22 U.S.C. § 252 .
For the same reason the defendants may not avail themselves of the Immunity provisions of the Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes [Vienna Convention], to which the United States is a signatory. Article 29 of the Vienna Convention provides:
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.
23 U.S.T. 3227.
Article 31 of the Vienna Convention provides: “A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State.” A “diplomatic agent” is defined by Article 1(e) as “the head of the mission or a member of the diplomatic staff of the mission,” while the “diplomatic staff” consists of the “members of the mission having diplomatic rank.” Article 1(d). No definition of “mission” is offered, but the functional description of its duties in Article 3 convinces me that the services performed by the defendants were not per
*501
formed for or as members of the U.S.S.R. mission to the United States or the United Nations.
3
Even if they were members of the mission, the foregoing certificates of the State Department demonstrate that the defendants did not have diplomatic status in the eyes of the United States.
Special statutory provision is made for immunity for employees of international organizations in the United States by the International Organization Immunities Act, 22 U.S.C. § 288
et seq.
The statute provides, in pertinent part:
For the purposes of this title, the term “international organization” means a public international organization in which the United States participates pursuant to any treaty or under the authority of any Act of Congress authorizing such participation or making an appropriation for such participation, and which shall have been designated by the President through appropriate Executive order as being entitled to enjoy the privileges, exemptions, and immunities provided in [said section.]
22 U.S.C. § 288 .
******
(a) Persons designated by foreign governments to serve as their representatives in or to international organizations and the officers and employees of such organizations, and members of the immediate families of such representatives, officers, and employees residing with them, other than nationals of the United States, shall, insofar as concerns laws regulating entry into and departure from the United States, alien registration and fingerprinting, and the registration of foreign agents, be entitled to the same privileges, exemptions, and immunities as are accorded under similar circumstances to officers and employees, respectively, of foreign governments and members of their families.
(b) Representatives of foreign governments in or to international organizations and officers and employees of such organizations
shall be immune from suit and legal process relating to acts performed by them in their official capacity and falling within their functions as such representatives, officers, or employees
except insofar as such immunity may be waived by the foreign government or international organization concerned. (Emphasis added)
22 U.S.C. § 288d.
(a) No person shall be entitled to the benefits of [sections 228-288Í] of this title unless he (1) shall have been duly notified to and accepted by the Secretary of State as a representative, officer, or employee; or (2) shall have been designated by the Secretary of State, prior to formal notification and acceptance, as a prospective representative, officer, or employee; or (3) is a member of the family or suite, or servant, or one of the foregoing accepted or designated representatives, officers, or employees.
******
(c) No person shall, by reason of the provisions of [said sections], be considered as receiving diplomatic status or as receiving any of the privileges incident thereto other than such as are specifically set forth herein.
22 U.S.C. § 288e.
The United Nations has been appropriately designated as such an international
*502
organization. Executive Order No. 9698 (February 19, 1946), 11 Fed.Reg. 1809, as amended by Executive Order No. 10083 (1949).
Neither the defendants’ Memorandum nor Reply Memorandum explicitly raises the foregoing statute as a basis for immunity. In the event, however, that the defendants’ heavy reliance on their job descriptions is intended to raise the protection of the statute implicitly, it is appropriate that I analyze the International Organization Immunities Act in that light.
While employees of international organizations are provided with a broad-based immunity from laws regulating entry into and departure from the United States, 22 U.S.C. § 288d(a), Congress adopted a functional criterion to govern the scope of immunity in other situations, namely, that such employees “shall be immune from suit and legal process relating to acts performed by them
in their official capacity and falling within their
[official]
functions . .
.” 22 U.S.C. § 288d(b) (emphasis added). Espionage, the crime with which the defendants are charged, is, of course, not one of the functions performed in the defendants’ official capacities with the United Nations.
4
United States v. Egorov,
222 F.Supp. 106 (E.D.N.Y.1963), is instructive. Egorov, charged with violating 18 U.S.C. § 794 (c), raised virtually the same claims of immunity as the defendants raise here, including employment with the United Nations Secretariat. As to Egorov’s contention that he was immunized from prosecution by 22 U.S.C. § 288d(b), the court noted:
Egorov, as hereinabove stated, was an employee of the United Nations, from which he received his compensation for services rendered. His duties and functions were entirely non-diplomatic in character.
Employees
of the United Nations are separate and distinct from persons designated by foreign governments to serve
as their foreign representatives
in or to the United Nations.
United States v. Melekh, supra.
His duties and functions in the Personnel Section of the United Nations did not, of course, contemplate or include such acts as those charged in the indictment herein. (Emphasis in original).
Id.
at 108.
5
Accord, United States v. Melekh,
190 F.Supp. 67, 79-80 (S.D.N.Y.1960);
United States v. Coplon,
84 F.Supp. 472, 474 (S.D.N.Y.1949)
[Coplon
I].
And see Mpiliris v. Hellenic Lines, Ltd.,
323 F.Supp. 865, 882-83 (S.D.Tex.1969),
aff’d,
440 F.2d 1163 (5th Cir. 1971).
See also
Ling,
A Comparative Study of the Privileges and Immunities of United Nations Member Representatives and Officials with the Traditional Privileges and Immunities of Diplomatic Agents,
33 Wash. & Lee L.Rev. 91 (1976):
The exemptions and immunities of United Nations officials in the United States, as stipulated by the terms of the United
*503
Nations Charter and the General Convention, are designed solely to protect the independence of officials in their United Nations functions. No exemption from local jurisdiction is provided officials for acts in their private capacity. (Footnote omitted).
Id.
at 138.
As Ling also points out: “[I]t is the work rather than the official which is protected,” with the result that such officials “must obey all ordinary laws governing their private actions.”
Id.
at 129.
There is, as well, a practical justification based on the legitimate self-interest of the United States. The fact that the United Nations has its headquarters in the United States requires a large number of foreign government representatives and foreign national employees to reside in the New York City area for substantial periods of time. From the standpoint of providing diplomatic immunity, it would be impractical for all concerned if each of those individuals had to be “approved” by the United States in advance. The accommodation reached is not to afford all such foreign nationals full immunity status. Rather, it is to permit the foreign government or international organization to undertake the selection of representatives and employees but, as a means of protecting this country’s interests, to limit the availability and scope of immunity. Accordingly, under the Headquarters Agreement
6
and 22 U.S.C. § 288d(b), only a limited number of persons may receive full immunity and then only after prior government approval; all others are cloaked with immunity only when acting within the scope of their employment. As stated in
United States ex rel. Casanova v. Fitzpatrick,
214 F.Supp. 425, 437 (S.D.N.Y.1963), a contrary approach would lead to the untenable result that: ,
a member state of the United Nations which may be hostile to our interests [would be] free to send to the United States individuals designated as resident members of their staffs, to engage in conduct destructive of our national interest and security and yet have them protected from criminal prosecution on the theory that their designated status cloaked them with diplomatic immunity. It would open the flood gates for the entry of saboteurs, agents provocateur and others under a built-in guarantee that no matter what the criminal conduct, the Government would not prosecute them.
7
*504
Thus, since the defendants do not fall under any of the statutory or treaty provisions for immunity, it remains only to inquire whether they are protected by an immunity derived from general principles of international law which are not codified elsewhere.
8
Diplomatic immunity in its contemporary aspect may be broadly defined as the freedom from local jurisdiction accorded under principles of international law by the receiving state to the duly accredited diplomatic representatives of other states.
See
Bishop,
International Law
at 447 (1953); Hall,
Treatise on International Law
at 223 (8th ed. 1924).
The modern law of diplomatic immunity is derived from centuries of practical dealings among nations. The United States has long recognized the responsibilities imposed upon individual nations by force of international custom and treats the Law of Nations as the law of the land.
Kansas v. Colorado,
206 U.S. 46, 97 , 27 S.Ct. 655 , 51 L.Ed. 956 (1907). That this is so is well illustrated by the frequently cited letter (of March 16, 1906) of then Secretary of State Elihu Root:
There are many and varied reasons why diplomatic agents, whether accredited or not to the United States, should be exempt from the operation of the municipal law at [sic] this country. The first and fundamental reason is the fact that diplomatic agents are universally exempt by well recognized usage incorporated into the Common law of nations, and this nation, bound as it is to observe International Law in its municipal as well as its foreign policy, cannot, if it would, vary a law common to all.
See
IV Hackworth,
Digest of International Law,
§ 400 at 513 (1942). The rule’s rationale is a practical one: “that Governments may not be hampered in their foreign relations by the arrest or forcible prevention of the exercise of a duty in the person of a governmental agent or representative.”
Id.
Diplomatic immunities are required on the ground of practical necessity. . It is in the interest of the State accrediting a diplomatic agent, and in the long run in the interest also of the State to which he is accredited, that he should have such liberty as will enable him, at all times and in all circumstances, to conduct the business with which he is charged; and liberty to this extent is incompatible with full subjection to the jurisdiction of the country with the government of which he negotiates.
Hall,
supra
at 218-19. The courts have recognized this policy.
Hellenic Lines, Ltd. v. Moore,
120 U.S.App.D.C. 288, 290 , 345 F.2d 978, 980 (1965);
United States ex rel. Casanova v. Fitzpatrick, supra
at 428; Restatement,
Second,
Foreign Relations Law of the United States § 73, comment
a.
The peculiar requirements of intercourse among nations have long been recognized. Part and parcel of the system developed for meeting these requirements is diplomatic immunity, the fundamental principles of which trace their roots to ancient China, India, and Egypt.
9
The ancient Greeks, as the first to regularize diplomatic relations, included in their practice the exchange of ambassadors and concomitant personal in
*505
violability.
10
Thus, it can be said that the fundamental principles of modern diplomatic immunity were in active use 2,000 years ago. Their use has been continuous since that time.
11
It was not until the end of the Middle Ages, however, that diplomacy truly began to be practiced as it is today.
12
By the end of the 17th century broad principles of diplomatic relations were recognized as matters of customary practice, though still subject to the exigencies of politics.
13
International treaties on the subject dealt with the accreditation of representatives in particular cases and had not yet advanced to the point of regulating the details of their treatment.
14
In more recent times the law of diplomatic immunity has been codified by the Vienna Convention, the principal effect of which is to codify the customary law of diplomatic relations, including the law of diplomatic immunity.
15
The Vienna Convention may be traced indirectly to an action of the League of Nations appointing a “Committee of Experts for the Progressive Codification of International Law.” The Committee named diplomatic immunity as an area appropriate for codification due to: (1) its essentially procedural character; (2) the stability of the practices and procedures of embassies; (3) the fact that it is sanctioned by a high degree of reciprocity among nations; and (4) its familiarity to the international community from long practice and extensive academic discussion.
16
In 1954 the International Law Commission, acting pursuant to a resolution of the United Nations General Assembly, instituted work on a codification of the law of diplomatic intercourse and immunities. Pursuant to invitation by the General Assembly, 81 nations convened a conference at Vienna on March 2, 1961. The convention which grew out of that conference was signed on April 18, 1961, and entered into force on April 24,1964, when it was ratified by 22 nations. As noted above, the Vienna Convention codified the customary law of diplomatic relations in existence since ancient times. In addition, it resolved many of the inconsistencies of State practice, including those relating to the scope of immunities and the persons to whom they apply. Most of the Vienna Convention is binding as customary law even upon nations that have not ratified it, and many of the treaty articles are declaratory of existing international law; the remaining articles are persuasive as evidence of existing international law.
17
*506
An examination of the pertinent articles of the Vienna Convention,
18
which I find to be declaratory of the customary international law, reveals no basis for cloaking the defendants with the protective blanket of diplomatic immunity. The problem, in its essence, is one of definition: are the defendants by any standard, either codified or customary, within the class of persons traditionally entitled to the benefits of immunity from prosecution? The only answer of which the question admits is that they are not. The full privileges and immunities of diplomatic status have traditionally been reserved to those of acknowledged diplomatic rank, performing diplomatic functions. It is apparent to me, on the basis of what the defendants have placed before me, that their jobs are not of such a nature as to constitute them diplomatic agents by any definition of the term. They are employees of an international organization performing functions internal to that organization. Neither is simple employment by the United Nations necessarily indicative of diplomatic status.
United States v. Coplon,
88 F.Supp. 915, 920 (S.D.N.Y.1950)
[Coplon II]; United States v. Coplon, supra
at 474
[Coplon I].
While the United Nations itself, and its top officials, undeniably perform certain- diplomatic functions, the defendants’ personal connections with those functions are too attenuated to be called diplomatic. A decision to the contrary would have the effect of cloaking virtually every United Nations employee above the clerical level with full immunity. That this has never been intended by the international community is manifest from the more limited immunities provided such employees by treaty and by statute.
It is not significant that the defendants possess “a diplomatic rank of Second Secretary conferred on [them] in accordance with the provisions based on the decree of the Presidium of the U.S.S.R. Supreme Soviet on May 28, 1943.” Such unilateral action by the U.S.S.R., whatever its import within the Soviet Union, is of no extraterritorial effect, at least in the context of these proceedings.
United States v. Egorov, supra
at 107;
United States v. Melekh, supra
at 76-77. The traditional policy of the United States is that diplomatic immunity will not be conferred upon an individual unless he has both diplomatic status and an “ ‘intimate association with the work of a permanent diplomatic mission.’ ”
Coplon II, supra
at 920. The defendants have not claimed that they have been received by the United States or by the United Nations as representatives of the Soviet government. Indeed, any such claim would be baseless, as the exhibits submitted here by the government make clear.
19
*507
More significant on the issue of diplomatic immunity than what the defendants have submitted to support their claim of immunity is what they have failed to submit. They do not claim they ever worked in a capacity other than one within the United Nations Organization; that they have ever been official representatives of the U.S.S.R., and received as such, by the United States; or that either has ever been attached to the Soviet Embassy to the United States or the Soviet mission to the United Nations.
The cases cited by the defendants for the proposition that immunity is often unrelated to accreditation to the United States are inapposite. Those cases deal with the separate problem of guaranteeing the inviolability of representatives travelling through nations to which the representative is not accredited while enroute to the receiving nation. The instant case presents an entirely different set of circumstances and policy considerations.
For the foregoing reasons the motion to dismiss the indictment on the basis of diplomatic immunity is denied.
II.
The defendants next contend that the indictment should be dismissed for the reason that it does not allege an essential element of the offenses charged. Thus they argue that, while not expressly included in the statutory definition, an essential element of the offense under 18 U.S.C. §§ 793 and 794 is that the information obtained by the person charged be of a secret, non-public nature, a proposition for which they cite as authority
Gorin v. U. S.,
312 U.S. 19 , 61 S.Ct. 429 , 85 L.Ed. 488 (1941) and
United States v. Heine,
151 F.2d 813 (2d Cir. 1945),
cert. denied,
328 U.S. 833 , 66 S.Ct. 975 , 90 L.Ed. 1608 (1946).
Contending that, since Counts 1 and 3 assert only that defendants conspired to obtain “national defense” documents, and Count 2 merely asserts that the defendants obtained documents marked “confidential”, and that the quoted words are nowhere defined as synonymous with “secret, nonpublic information,” defendants would have me dismiss the indictment for insufficiency.
Clearly, an indictment must allege all the elements of the offense charged, and, where all are included within the statutory language, it is appropriate procedure to track the statutory language in charging the offense.
I turn to the indictment itself.
Count 1 charges that the defendants conspired “to obtain information respecting the national defense of the United States, that is, photographs, photographic negatives, documents, and other writings connected with the national defense of the United States.” Count 2 charges that the defendants “for the purpose of obtaining information respecting the national defense of the United States, did knowingly and wilfully obtain photographic film of a document and writing connected with the national defense of the United States entitled ‘Naval Air Development Center, Johnsville, Warminster, Pennsylvania, Report No. NADC-SD-7167, 15 October 1971, Light Airborne Multipurpose System (LAMPS) D/V-98 Phase B (Antisubmarine Warfare) Final Report,’ marked ‘Confidential.’ ” Count 3 charges that the defendants conspired to communicate, deliver, and transmit “photographs, photographic negatives, documents, and other writings and information relating to the national defense of the United States.”
I find that the requisite elements are embraced by the charges of the indictment.
*508
Defendants misread
Gorin
and
Heine .
In
Gorin
the only issue presented was in the defendants’ argument that the Espionage Act was limited to obtaining and delivering information concerning the places and things now described in 18 U.S.C. § 793 (a). Otherwise, they contended, a statutory prohibition against “furnishing of any other information connected with or relating to the national defense than that concerning these specifically described places and things would make the act unconstitutional as violative of due process because of indefiniteness.” 312 U.S. at 23 , 61 S.Ct. at 432 . The Court rejected this analysis.
The Court held the statute not to be limited to the places and things now described in 18 U.S.C. § 793 (a), and found the statutory language not to be so indefinite as to be unconstitutional, stating:
But we find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring “intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.” This requires those prosecuted to have acted in bad faith.
The sanctions apply only when scienter is established. 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.
Finally, we are of the view that the use of the words “national defense” has given them, as here employed, a well understood connotation. They were used in the Defense Secrets Act of 1911. The traditional concept of war as a struggle between nations is not changed by the intensity of support given to the armed forces by civilians or the extension of the combat area. National defense, the Government maintains, “is a generic concept of broad connotations, referring to the military and naval establishments and the related activities of national preparedness.” We agree that the words “national defense” in the Espionage Act carry that meaning. Whether a document or report is covered by §§ 1(b) or 2(a) depends upon its relation to the national defense, as so defined, not upon its connection with places specified in § 1(a). The language employed appears sufficiently definite to apprise the public of prohibited activities and is consonant with due process, (emphasis supplied) (footnotes omitted)
312 U.S. at 27-28 , 61 S.Ct. at 433-434 .
The meaning of
Gorin ,
for our purposes, is clear.. Scienter, that is, intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation, is an essential element under §§ 793 and 794. It is properly alleged. It must also be proved. In the course of the proofs, evidence bearing upon the issue of secrecy will be relevant, for, as the Court said in
Gorin ,
“[wjhere there is no occasion for secrecy, . . . there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.” 312 U.S. at 28 , 61 S.Ct. at 434 .
As to
Heine ,
it simply dealt with explaining an element of the offense already contained in the statute. It did not add an additional element.
The three counts of the indictment are therefore not defective for relying upon the statutory language to allege the elements of the offense.
See
Fed.R.Cr.P. 7(c). There was no need to allege that the information sought and obtained was of a secret, non-public nature. The defendants’ motion to dismiss the indictment for failure to allege an essential element is denied.
III.
Defendants next urge dismissal of the indictment on the grounds it is vague and ambiguous. At the heart of any determination on the contentions thus posed is
United
*509
States v. Cruikshank,
92 U.S. 542, 558 , 23 L.Ed. 588 (1876), where the United States Supreme Court said:
The object of the indictment is, first, to furnish the accused with such a description of the charge against him as will enable to make his defence, and avail himself of his conviction or acquittal for protection against a further prosecution for the same cause; and, second, to inform the court of the facts alleged, so that it may decide whether they are sufficient in law to support a conviction, if one should be had.
The vagueness and ambiguousness is said to lie in the fact that in 20 of the 59 overt acts alleged in Counts 1 and 3 the defendants claim to be unable “from any fair reading” to determine “whether the alleged conspirator made the calls at the telephone booth described in the overt acts or whether they were made from another telephone booth to the Navy officer stationed at the telephone booth described in the overt acts.”
20
This motion is without merit. The indictment need only allege one overt act done to effectuate the conspiracy. Here, as defendants concede, 39 alleged overt acts are free from vagueness and ambiguousness.
Moreover, even a cursory reading of all the overt acts makes it plain that the Navy officer referred to had been directed to go to a public telephone and that overt act 1 clearly means that the Navy officer was “at a public telephone” when telephoned by a conspirator on August 30, 1977.
IV.
Defendants’ motion to strike as surplusage paragraphs 5 and 6 of Count 1 is denied. These paragraphs read as follows:
5. At all times relevant herein the passenger vessel MS
Kazakhstan
was owned and operated by the Union of Soviet Socialist Republics through the Black Sea Shipping Company, Odessa, U.S.S.R.
6. On August 13,1977, said Navy officer boarded the MS
Kazakhstan
for a round-trip voyage from New York, New York, to Bermuda, returning to New York on August 20, 1977.
The defendants argue that these allegations have no connection to the offense charged in the indictment, are inflammatory and prejudicial, and should be stricken.
Rule 7(d) of the Federal Rules of Criminal Procedure provides: “The court on motion of the defendant may strike surplusage from the indictment or information.”
The United States, in its brief, states the following:
These allegations are that the MS
Kazakhstan
was owned and operated by the Soviet Union and that the Navy officer was aboard the vessel from August 13 to 20, 1977. The Government represents that the evidence at trial will show that the telephone call listed in Overt Act No. 1 was a direct result of events that occurred aboard the MS
Kazakhstan
between August 13 and 20, 1977. The allegations are therefore relevant to show the background of the first telephone call and the relationship that thereafter developed through the use of telephones and short-term caches.
Furthermore, one of the material facts the Government will seek to establish at trial is that the defendants and other co-conspirators acted on behalf of the Soviet Union. One of the many factors establishing this relationship will be events that transpired on the Soviet vessel. In this regard, the fact that the defendants Enger and Chernyayev and the co-conspirator were not on board the vessel at the time is probative of the common connection between the vessel, the Soviet government, and these conspirators. It should be noted that the indictment dates the conspiracy from “at least August 20, 1977,” the date the MS
Kazakhstan
arrived back in New York.
*510
From the above, it is apparent that testimony concerning the MS
Kazakhstan
will be given at trial and is probative of issues that will be considered by the jury.
Brief in Support of Government’s Answers to Defendants’ Pretrial Motions, 31-32.
Given the representations made by the United States, it is clear that there will be at trial reference to the MS
Kazakhstan
and the Navy officer’s voyage on it in August 1977. Moreover, I fail to perceive the alleged inflammatory prejudice inherent in the allegation that the vessel was owned by the U.S.S.R. This is particularly true since the United States represents it will show a connection between the defendants and the U.S.S.R.
V.
Defendants’ Request For Particulars
In
United States v. Addonizio,
451 F.2d 49, 63-64 (3d Cir. 1971),
cert. denied,
405 U.S. 936 , 92 S.Ct. 949 , 30 L.Ed.2d 812 (1972), the Court of Appeals for the Third Circuit described the purpose of a bill of particulars:
“The purpose of the bill of particulars is to inform the defendant of the nature of the charges brought against him to adequately prepare his defense, to avoid surprise during the trial and to protect him against a second prosecution for an inadequately described offense.” ... A bill of particulars should fulfill this function “when the indictment itself is too vague and indefinite for such purposes.”
(citations omitted)
The court in
Addonizio
also stated that a bill of particulars is not to be used as a source of wholesale discovery of the evidence in possession of the United States or to require the prosecution to assemble the information in its files into a fully integrated trial theory.
Id.
at 64 .
Review of the indictment reveals that it informs the defendants of the nature of the charges, provides adequate notice to prepare their defense and describes their criminal venture sufficiently so as to protect them against subsequent prosecution. Additionally, the affidavits underlying the arrest and search warrants convey a substantial amount of information.
Finally, government compliance with my discovery order, copying of trial exhibits and voluntary disclosure thereof and other materials, assure that these defendants will not be surprised at trial. Given the disclosures described, the defendants will be enabled to prepare thoroughly for trial.
The defendants’ demands for particulars must be construed in the light of the foregoing.
I shall now deal with the defendants’ demands item by item:
1-6. The United States will disclose the name, rank and nature of the commission and the type of security clearance of the Navy officer referred to in the indictment. All other requests in items 1-6 are denied.
7. Denied.
8. Answer to the extent of the knowledge of the United States at this time.
9. Denied.
10. The United States shall furnish the names of any co-conspirators not named in the indictment not later than 10 days before trial. Otherwise, 10 is denied.
11. Denied.
12. Denied.
13. Denied.
14. Denied.
15. Denied.
16. Denied.
17. Denied.
18. Denied.
19. Denied.
20. Denied.
21. Denied.
22. Denied.
23. Denied.
24. Denied.
25. Denied.
26. Denied.
27. Denied.
*511
28. Denied.
29. Denied.
30. Denied.
31. Denied.
32. Denied.
33. Denied.
34. Denied, except the United States shall furnish the names of presently unidentified co-conspirators not later than August 31, 1978.
35. Answer.
36. Answer.
37. Denied.
38. Answer.
39. Answer.
40. Denied.
To the extent the United States wishes to apply for a protective order with respect to any of the foregoing, prompt application therefor should be made. Moreover, the United States, notwithstanding the foregoing, is to respond to the direction given by me at argument relative to its theory of who retrieved the Tropicana container on May 20, 1978.
VI.
Defendants also move for discovery and inspection.
Except as to the document which is the subject of Count 2 of the indictment, which is to be disclosed, their request as put is denied for the reason set forth in the United States’ Brief: that I have ordered and the defendants have or will receive extensive access to evidential materials in the possession of the United States.
VII.
The defendants have also filed a Request for Disclosure.
1. Answer.
2. Answer.
3. Answer.
4. Answer.
5. Answer.
6-8. Answer in terms of the approximate vicinity where cameras were located, when and where photographs, videotapes and recordings were taken or made; the balance is denied.
9. All
Brady
material is to be disclosed. Any material about which the United States is doubtful should be turned over to this court for
in camera
review.
10. Denied.
11. Denied, except that, to the extent
Brady
material is involved, proceed as in 9,
supra.
12. Answer.
13. Answer.
VIII.
Defendants next urge that all evidence taken from their persons incident to their arrests pursuant to warrants issued on May 12, 1978 should be suppressed, because the warrants were defective and the underlying complaints did not establish probable cause.
See Wong Sun v. United States,
371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963).
21
The United States contends that the search was valid as incident to a lawful arrest.
United States v. Robinson,
414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973).
*512
The Law
Rule 4 of the Federal Rules of Criminal Procedure provides in pertinent part as follows:
Rule 4. Arrest Warrant or Summons upon Complaint
(a) Issuance. If it appears from the complaint, or from an affidavit or affidavits filed with the complaint, that there is probable cause to believe that an offense has been committed and that the defendant has committed it, a warrant for the arrest of the defendant shall issue to any officer authorized by law to execute it. Upon the request of the attorney for the government a summons instead of a warrant shall issue. More than one warrant or summons may issue on the same complaint. If a defendant fails to appear in response to the summons, a warrant shall issue.
(b) Probable Cause. The finding of probable cause may be based upon hearsay evidence in whole or in part.
(c) Form.
(1) Warrant. The warrant shall be signed by the magistrate and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged in the complaint. It shall command that the defendant be arrested and brought before the nearest available magistrate.
* afc * * * *
The fourth amendment to the United States Constitution guarantees that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing . . . the person or things to be seized. . . .” Probable cause exists where the facts and circumstances within the officer’s knowledge, and of which he had reasonably trustworthy information, are sufficient to warrant a man of reasonable caution in believing that an offense has been or is being committed.
Carroll v. United States,
267 U.S. 132, 162 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925);
and see Gerstein v. Pugh,
420 U.S. 103, 111 , 95 S.Ct. 854 , 43 L.Ed.2d 54 (1975), quoting
Beck v. Ohio,
379 U.S. 89, 91 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964).
In
Giordenello v. United States,
357 U.S. 480 , 78 S.Ct. 1245 , 2 L.Ed.2d 1503 (1958), the United States Supreme Court noted that the language of the fourth amendment which applies to arrest as well as to search warrants,
22
construed with Rule 4 of the Federal Rules of Criminal Procedure, affords the protection:
“. . that the inferences from the facts which lead to the complaint ‘. . . be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime’.
Johnson v. United States,
333 U.S. 10, 14 [, 68 S.Ct. 367 , 92 L.Ed. 436 ] [1948]. The purpose of the complaint, then is to enable the appropriate magistrate ... to determine whether the ‘probable cause’ required to support a warrant exists. The [magistrate] must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant’s mere conclusion that the person whose arrest is sought has committed a crime.”
*513
357 U.S. at 486 , 78 S.Ct. at 1250 .
Cf. Mincey v. Arizona,
437 U.S. 385 , 98 S.Ct. 2408 , 57 L.Ed.2d 290 (1978).
Moreover, while a complaint may be based upon hearsay, Fed.R.Cr.P. 4(b), in such case the court must be informed of the underlying circumstances from which the officer concluded that the informant was credible and his information reliable.
Aguilar v. Texas,
378 U.S. 108 , 84 S.Ct. 1509 , 12 L.Ed.2d 723 (1964).
In reviewing the question of whether there was probable cause for the issuance of the search or arrest warrant, the court must determine whether there was “substantial basis” for the decision of the magistrate that probable cause existed.
Jones v. United States,
362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1966).
23
In this regard, it is also noted that, given the preference expressed by the Supreme Court for arrest warrants as well as search warrants,
see Beck v. Ohio,
379 U.S. 89 , 85 S.Ct. 223 , 13 L.Ed.2d 142 (1964) and
United States v. Ventresca,
380 U.S. 102 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965), the Court has noted that “in a doubtful or marginal case a search under a warrant may be sustainable where without one it would fail.”
Id.
at 106 , 85 S.Ct. at 744.
24
Additionally, the Supreme Court has directed that “the magistrate is obligated to render a judgment based upon a commonsense reading of the entire affidavit,”
Spinelli v. United States,
393 U.S. 410 , 89 S.Ct. 584 , 21 L.Ed.2d 637 (1969), and has admonished that “. . . [a] grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting.”
United States v. Ventresca, supra
380 U.S. at 108 , 85 S.Ct. at 746 .
The remaining legal principle urged upon the court by the United States is expressed in
United States v. Miles,
468 F.2d 482, 486-87 (3d Cir. 1972):
Unlike a search warrant, an arrest warrant is not a constitutional prerequisite to an arrest. Moreover, even if an arrest warrant has been issued and it is invalid, the arrest may be lawful if the arresting officer had probable cause to believe that the suspect was committing or had committed a felony.
Cf. Aguilar v. Texas, supra,
378 U.S. at 116 , 84 S.Ct. 1509 (dissenting opinion by Clark, J.);
but see Whiteley v. Warden,
401 U.S. 560 , 91 S.Ct. 1031 , 28 L.Ed.2d 306 (1971).
All of the foregoing principles are explicated as the law of this circuit in
United States v. McNally,
473 F.2d 934, 937 (3d Cir. 1973).
The Facts Before the Magistrate
I now turn to an examination of the complaint to discover if the facts set forth therein, and the reasonable inferences fairly to be drawn from those facts, support the magistrate’s determination that probable cause existed for issuance on May 12, 1978 of the warrants of arrest under Fed.R. Cr.P. 4 and the fourth amendment.
25
Defendants’ sifting of the complaint’s averments suffers from their rejection of the “common sense” interpretation mandated by the Supreme Court, and their pursuit of an evaluative technique which frees
*514
them to dissect and examine in isolation each factual averment not only divorced from what preceded and followed it in time, but torn from a logically consistent array of circumstances forming a coherent whole. Their arguments are also defective in failing to consider inferences which the magistrate could have reasonably drawn from the bald averments of the affiant, and to which I shall shortly refer. Thus, the raw facts of the numerous contacts, the delivery of documents and cash, the use of an alias, the arcane and ingenious means of communicating with the confidential source adopted by the defendants, as alleged in the complaint, are only a part of the total canvas unveiled to the magistrate by the affiant.
I shall now review the complaint to determine whether, in the light of logical analysis, the magistrate might reasonably have concluded that there was probable cause to believe that the crimes there designated were committed by the defendants. My determination need not and does not go beyond this.
a.
The confidential source
The agents were early in touch with, and acquired much of their information from, a “confidential source,” whose reliability on seven previous occasions had been “proven to be true and accurate.” This source had “a secret security clearance . . . [and] access to classified information.” The magistrate could have reasonably found he had a connection with, or knowledge of, United States naval affairs, as evidenced by the fact of verification rendered previous information he had given by the “U.S. Naval Investigative Service,” and by the nature of the national defense information he had been allegedly paid several thousand dollars by the defendants to procure, including “secret information concerning anti-submarine warfare; including materials involving underwater acoustics, submarine detection systems and their platforms, such as the ‘LAMPS’ helicopter systems, and other classified United States Navy programs.”
Not only the reliability of the confidential source, but the means by which he acquired the information embodied in the complaint, were validated, as required by
Spinelli
and
Aguilar ,
by the contents of the confidential source’s statements to the affiant agent.
See United States v. Harris,
403 U.S. 573, 579 , 91 S.Ct. 2075 , 29 L.Ed.2d 723 (1971). Moreover, the magistrate could reasonably have found that the investigating agents, including the affiant, having been alerted by the confidential source as early as August 30, 1977 to possible espionage, were able to confirm or verify virtually every revelation made by the confidential source thereafter, particularly with respect to the events of February 18, 1978 and March 11, 1978. Thus, the magistrate could reasonably have concluded the confidential source was reliable and truthful and that he was experiencing first-hand the events he described to the affiant.
United States v. Harris, supra.
b.
The alleged conspirators
Given the ingredients of the complaint, considered in their totality, the magistrate could have reasonably concluded that a foreign power was, or a person or persons who sought to advance the interests of a foreign power were, engaged in an unlawful enterprise as described to the affiant by the confidential source.
26
The interest in the
*515
relative strengths of the navies of the United States and the U.S.S.R., and, more particularly, their respective submarine components, as well as this nation’s endeavors in detection of potentially hostile submarines, widely disseminated and discussed in the various media, would have justified the magistrate’s conclusion, for purposes of probable cause analysis, that the foreign power the alleged wrongdoers were serving, or seeking to serve, was the U.S.S.R.
Moreover, the complaint identified by name and position the three suspects: Chernyayev, “a Soviet national employed as a Personnel Officer by the United Nations Secretariat, New York, New York,” who resided “at 5800 Arlington Avenue, Bronx, New York”; Enger, “a Soviet national employed as a Political Affairs Officer, United Nations Secretariat,” who resided “at 136 Mill River Road, Brookville, New York”; and Zinyakin, “Third Secretary, Soviet Mission to the United Nations.” Repeatedly, according to the complaint, in sightings made by FBI surveillance, these three were seen at sites critical to a particular contact then being made with the confidential source.
27
Thus, “the confidential source . observed” Chernyayev’s automobile “in the vicinity of the areas where . . . [the confidential source] had been directed” to go “by the unknown caller.” Surveilling agents actually saw Chernyayev himself [on October 22, 1977, December 3, 1977 and January 7,1978], “recognized by them from the performance of their normal duties,” in the “immediate vicinity of various pertinent locations on or near the Garden State Parkway and the New Jersey Turnpike during the times the confidential source was at those locations in accordance with instructions received from the unknown caller.”
The complaint also states that while Chernyayev was seen in his automobile at the “various pertinent locations” on December 3, 1977, FBI agents also saw there on the same date, Enger and Zinyakin, in Enger’s car. The magistrate could reasonably have concluded that the use of two automobiles served to suggest the three were working together in the unlawful enterprise described in the complaint.
Moreover, on January 7, 1978, the day Chernyayev had been observed at the “pertinent locations,” the confidential source had passed certain materials, according to the complaint; and at the next contact, on February 18, 1978, Chernyayev, Enger and Zinyakin were in the same automobile, Enger’s, at two critical locations, the Essex Toll Plaza on the Garden State Parkway, and in the vicinity of Freeway Drive and North Oraton Parkway, East Orange.
28
It was on this date the confidential source received $3,000 for the information he had passed on January 7, 1978.
The complaint next details the events of March 11, 1978. Enger’s car was observed with Enger and Zinyakin in it, Enger driving, at a critical site in Perth Amboy (where Zinyakin picked up a container in a telephone booth, which the complaint alleges was deposited by the confidential source).
Shortly thereafter, according to the complaint, Zinyakin transferred to an automobile driven by Chernyayev and he and Chernyayev then drove into the Cheesequake Service Area on the Parkway where Enger, driving his car, joined them. After there engaging in conversation, the three parted. Chernyayev drove off with Zinyakin and Enger followed.
Summarizing the foregoing, the following emerges from the complaint:
*516
Sightings at “drops” or contact points
October 22,1977 Chernyayev
December 3,1977 Chernyayev Enger with Zinyakin
January 7,1978 Chernyayev
February 18, 1978 Chernyayev and Zinyakin with Enger in latter’s car.
March 11,1978 Chernyayev (joined by Zinyakin after he picked up package left by confidential source).
Enger (originally with Zinyakin who left and went with Chernyayev).
The magistrate thus could have reasonably concluded, in terms of probable cause analysis, that Chernyayev, Enger and Zinyakin were engaged in a joint enterprise, with Chernyayev on occasion furnishing a “back-up” for Enger and Zinyakin; on other occasions, with Enger and Zinyakin furnishing a “back-up” for Chernyayev; and, on one occasion, the three together in one automobile.
Given the appearance of furtiveness, as described in the complaint, with which contacts were made with the confidential source, the magistrate could have properly concluded that the three alleged conspirators had different functions to perform on a particular day. Thus, on January 7, 1977, when only Chernyayev had been observed at a pertinent site, the magistrate might have properly concluded that Chernyayev had picked up the documents left by the confidential source. That they were picked up and evaluated could have been inferred from the payment of $3,000 on the next contact, February 18, 1978, when, it is alleged, Enger this time played an active role, twice leaving his automobile at pertinent sites while Chernyayev and Zinyakin remained in it.
A conclusion by the magistrate that the three were engaged in a joint enterprise could have drawn vitality from their common nationality; the fact that Chernyayev and Enger were both attached to the United Nations in New York City, while Zinyakin was attached to the U.S.S.R. Mission to the United Nations, thus establishing an apparent relationship between them; their repeated trips to New Jersey, usually in separate automobiles, which saw them always in the vicinity of one another, and at a critical location; the close presence of one or two while a third acted so as to suggest he was passing information to the confidential source; and the improbability of espionage, as alleged in the complaint, being engaged in on so many occasions, by two U.S.S.R. nationals without the third, who was invariably present, being involved as well, a proposition the magistrate could have properly found strengthened by the fact that apparently none of the three had any reason for being in New Jersey on so many occasions unless it was to contact the confidential source.
Actually, the defendants’ Memoranda contest vigorously the probable cause issue only as to Chernyayev.
See, e. g.,
Defendants’ Reply Memorandum of Law in Support of Defendants’ Motions, 58-63.
Arguendo,
even if proof of the facts in the complaint, and the reasonable inferences to be drawn therefrom, would not demonstrate Chernyayev’s guilt beyond a reasonable doubt to a jury, that is not here the test.
Cf. United States v. Londono,
553 F.2d 805, 810 (2d Cir. 1977). It is, as has been stated, whether the totality of the complaint adds up to probable cause.
I now turn to the details of the transactions to determine whether the magistrate properly found probable cause to believe that defendants were committing . the
*517
crimes charged while engaged in joint enterprise.
c.
The transactions
The magistrate could have reasonably concluded from the complaint that from August 20, 1977, and during the repeated contacts thereafter, including those on September 7 and 24, October 22, December 3, 1977, January 7, February 18, and through March 11, 1978, the confidential source was involved in a continuing enterprise which saw him, albeit while cooperating with the FBI, delivering, always in accordance with the same instructions, national defense documents to “Jim” and others, and receiving thousands of dollars therefor.
Given the unchallenged averments in the complaint, it is plain that there is substantial support for the magistrate’s finding of probable cause that the defendants had committed the crimes alleged in the complaint.
I have heretofore dealt with observations made of the defendants prior to February 11, 1978. As to events of the latter date, their details are important in evaluating the magistrate’s ultimate determination.
At 2 p. m. on February 18 the confidential source received a telephone call at the Brookdale Service Area on the Garden State Parkway. He was directed to a specified telephone booth immediately south of the Essex Toll Plaza on the Parkway, where a package for him was located under the shelf. Following this direction, he retrieved a container within which were written instructions from “Jim” and a map. These instructions in turn led him to an area in East Orange, New Jersey, where he deposited cans containing films of documents and picked up a can containing a letter and $3,000 in currency for the materials he had passed on January 7, 1978. This letter, among other things, arranged the next meeting on March 11, 1978. The confidential source then drove to still another location on the Parkway where he received another telephone call from “Jim,” acknowledging receipt of the materials just deposited in East Orange and confirming the March 11 meeting.
While at 2 p. m. on February 18,1978 the confidential source was getting a call directing him to the Essex Toll Plaza location, Enger was seen to get out of his car (occupied also by Chernyayev and Zinyakin) at that location and make a telephone call, of two minutes’ duration, during which he was observed placing his hand under the shelf in the booth. The magistrate could have concluded, in view of the surveilling agents having inspected the underside of the shelf after Enger left the area, and having discovered a magnetic container in which was secreted a letter to the confidential source from “Jim,” that it had been placed there by Enger.
Thereafter, while the confidential source was placing his film and getting the $3,000 at the East Orange location, agents saw Enger’s ear, with Enger and Chernyayev in it, in the same area. The magistrate could have properly concluded that Enger and Chernyayev, having picked up the film, were then able to stop at a telephone and call the confidential source at a prearranged place and acknowledge receipt of the materials and confirm the date of the next meeting.
The March 11, 1978 transaction is best told by quoting at length from the complaint (8-10):
On March 11, 1978, the confidential source advised the complainant that on that date at about 2:01 p. m. he was called at a public telephone at the Cheesequake Service Area, Garden State Parkway, by an unknown male caller identifying himself as “Jim,” who instructed him to retrieve a container secreted under the shelf of a specified public telephone booth in that area, and to read and follow the instructions contained therein. “Jim” told the confidential source he would call him again at the phone identified in the written instructions.
Pursuant to instructions the confidential source retrieved this container which contained a typewritten letter from “Jim” which instructed the confidential
*518
source that “To-day we’ll have the same kind of the operation we had last time” and directed him to proceed to the drop site at “the third lighting pole.” The confidential source followed these instructions and retrieved a red “Martin-son” coffee can from the base of the third pole on Fulner Street in South Amboy, New Jersey and deposited his camouflaged milk carton containing exposed film of documents at that same location at about 2:25 p. m.
The confidential source advised that in this coffee can were secreted $3,000 in U.S. currency and a typewritten letter from “Jim,” which stated in part as follows:
“We have roughly evaluated the latest materials received from you. Enclosed, please, find $3000 for them. By the way, have you paid attention to my request to pass over to us the films of latest documents dated 1976-1978, if possible?”
“Our next operation will take place on May 13.”
“For that operation, please try to prepare materials on submarine acoustic detection systems.”
The complainant personally observed and was advised by other Special Agents of the Federal Bureau of Investigation who participated in this investigation that on March 11, 1978 a gray Dodge bearing New York license 155-QXR was observed driving around in the vicinity of the third pole on Fulner Street in South Amboy, New Jersey, immediately prior to the time when the confidential source deposited his container of documents at the base of this third pole. Also defendant ENGER was the driver and co-conspirator ZINYAKIN was a front seat passenger in this Dodge. Shortly after the confidential source had deposited his container of documents, Special Agents of the Federal Bureau of Investigation who participated in this investigation advised the complainant that they observed the following at about 2:26 p. m.:
The above gray Dodge with defendant ENGER driving and co-conspirator ZINYÁKIN a front seat passenger approached and stopped near the above third pole where co-conspirator ZINYAKIN walked quickly to the above third pole where he picked up the milk carton of filmed documents and immediately entered the rear seat behind defendant EN-GER who then drove north on Fulner Street.
The confidential source advised the complainant he received a subsequent telephone call that day at another public telephone booth from “Jim,” who acknowledged that he had received the documents and May 13 was confirmed as the date for the next operation.
The complainant was further advised by other Special Agents of the Federal Bureau of Investigation who participated in this investigation that on March 11, 1978 they observed the following:
At about 2:31 p. m., defendant EN-GER, alone in the gray Dodge, was observed driving around a traffic circle near exit 125 of the Garden State Parkway; at about 2:37 p. m., defendant ENGER alone was observed in this gray Dodge at the Cheesequake Service Area; at about the same time, a light blue Dodge bearing New York license 480-GPF, drove into the Cheesequake Service Area driven by defendant CHERNYAYEV and occupied in the front passenger seat by co-conspirator ZINYAKIN. Shortly thereafter, defendants ENGER and CHERNYAYEV and co-conspirator ZINYAKIN were observed at that same location carrying on a very animated conversation. Defendant CHERNYAYEV and co-conspirator ZINYAKIN then left together in the above blue Dodge and defendant ENGER followed immediately in his gray Dodge with both vehicles travelling northbound on the Garden State Parkway.
By virtue of the foregoing, I conclude that the warrants authorizing the arrests of the defendants were properly issued on a sufficient showing of probable cause.
In view of this holding, there is no reason to consider the government’s
Miles
argument.
See
513,
supra.
*519
The arrest warrants were, I find, validly executed.
The defendants claim that the arrest warrants were tardily executed and that “all evidence taken pursuant thereto must be suppressed.” Defendants’ Memorandum at 45. While it is true that the arrest warrants in this case were executed eight days after they were issued, that fact has no legal significance. In
United States v. Joines,
246 F.2d 278 (3d Cir. 1957), the court affirmed the defendant’s conviction on the basis that a search conducted pursuant to a bona fide attempt to arrest him was legitimately conducted. The Supreme Court vacated the conviction and remanded for reconsideration in light of
Jones v. United States,
357 U.S. 493 , 78 S.Ct. 1253 , 2 L.Ed.2d 1514 (1958).
Joines v. United States,
357 U.S. 573 , 78 S.Ct. 1380 , 2 L.Ed.2d 1546 (1958). On remand the court of appeals again affirmed, noting:
[0]rdinarily there is no legal requirement that a warrant of arrest must be executed immediately or at the first opportunity. . . . While its execution should not be unreasonably delayed there may be perfectly valid reasons why further investigation should be made before the drastic step is taken of arresting a citizen on a criminal charge. Certainly there is no constitutional right to be arrested promptly or otherwise.
United States v. Joines,
258 F.2d 471, 472-73 (3d Cir.),
cert. denied,
358 U.S. 880 , 79 S.Ct. 118 , 3 L.Ed.2d 109 (1958).
I find no element here which suggests the United States acted improperly in not executing the warrants for eight days.
As to disclosure of the name of the confidential source, if he is the Naval officer referred to in the indictment, his name should be disclosed.
IX.
Defendants next move to suppress the evidence seized from their automobiles, alleging that the seizure was pursuant to invalid search warrants.
Probable Cause
The magistrate properly concluded that there was probable cause to search the defendants’ automobiles for the items listed in the search warrants.
See
Fed.R.Cr.P. 41(b).
See also Carroll v. United States,
267 U.S. 132, 162 , 45 S.Ct. 280 , 69 L.Ed. 543 (1925);
Brinegar v. United States,
338 U.S. 160, 175-76 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949); and
see United States v. Ventresca,
380 U.S. 102, 109 , 85 S.Ct. 741 , 13 L.Ed.2d 684 (1965).
29
Given the magistrate’s determination, which must be paid great deference,
United States
v.
McNally,
473 F.2d 934, 937 (3d Cir. 1973), and applying the doctrine of
Ventresca, supra,
that a “grudging or negative attitude by reviewing courts toward warrants” is to be eschewed, 380 U.S. at 108 , 85 S.Ct. at 746, it is clear that there was ample probable cause demonstrated to the magistrate for the warrants to issue. Thus, the search warrant affidavits reiterated all of the essential facts of the complaint, including those demonstrating that the defendants had used their automobiles extensively in their alleged espionage activities.
See, e.g.,
Affidavits at 11.
As the United States points out, many of the items listed in the warrants were contained there or formed part of one or more of the packages allegedly hidden by the defendants, to be picked up by the confidential source referred to in the affidavits. There was also probable cause to search for and to seize other items on the list based upon the nature of the alleged illegal activities described in the affidavits, such as “electronic signalling devices,” and “binoculars” as well as electronic devices to intercept or monitor F.B.I. communications. There was also probable cause to search for and seize “lists of names and/or telephone numbers,” in view of the revelation of the alleged espionage activities disclosed in the affidavits and because the confidential source was repeatedly called at public telephone booths.
*520
I find without merit the defendants’ claims that the warrants were based upon stale information and that the affidavits underlying the warrants contained a misstatement which requires that the evidence seized be suppressed.
What cannot be overlooked here is the fact that, given the averments of the affidavits underlying the warrants, the magistrate was presented with a chain of connected events, with each link, a particular contact, tied to the contact before and after it. Thus, the magistrate was advised that the confidential source would be given instructions on one occasion on how contact would be established with him on the next occasion; and that, at one contact, the confidential source would be told what information was sought and was to be delivered on the next occasion. Additionally, the confidential source, according to the affidavits, after delivery of information sought by the alleged conspirators, was told at a subsequent contact that they had evaluated this information and received cash in payment for the previously delivered information. Since, over the period of many months, the technique for arranging contacts, depositing instructions, retrieving material, and paying for the information, never varied, and saw the named conspirators involved throughout, it cannot be said that the information which was placed before the magistrate was “stale” on May 20, 1978 simply because it related to an observation made several weeks before.
With respect to the claim that the warrants contained a misstatement, as I indicated at oral argument, I find the argument to be without merit. Nonetheless, given the apparent good faith with which it was raised, I have directed the United States to set forth its theory as to what person or persons “retrieved” the Tropicana container on May 20, 1978.
The Generality of the Warrant
The defendants argue that the search warrants are invalid because the items to be seized are not described with sufficient particularity, making the warrants, which are identical in their descriptions of the items to be seized, overbroad and general in nature. The defendants point specifically to the warrants’ authorizations to seize “espionage paraphernalia, which are evidence, instrumentalities, and fruits of the crimes of conspiracy in violation of Title 18, United States Code, Sections 793 (g) and 794(c).” This language, defendants contend, vested in the FBI agents who executed the warrants an unbounded discretion to decide what constituted evidence of the alleged conspiracy.
The fourth amendment provides that no warrant shall issue unless it “particularly deserib[es] the place to be searched, and the persons or things to be seized.” As the Supreme Court noted in
Marron v. United States,
275 U.S. 192, 196 , 48 S.Ct. 74, 76 , 72 L.Ed. 231 (1927):
The requirement that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken, nothing is left to the discretion of the officer executing the warrant.
The description need not be technically precise, but must be sufficiently particular so that the warrant is not “a mere roving commission.”
United States v. Quantity of Extracts, Bottles, Etc.,
54 F.2d 643, 644 (S.D.Fla.1931).
Accord, Andresen v. Maryland,
427 U.S. 463, 478-82 , 96 S.Ct. 2737 , 49 L.Ed.2d 627 (1976);
United States v. Klein,
565 F.2d 183 (1st Cir. 1977);
United States v. Drebin,
557 F.2d 1316, 1322 (9th Cir. 1977).
I find that the warrants issued for the automobiles and their contents constituted general warrants proscribed by the fourth amendment; accordingly, the fruits of the searches must be suppressed.
Nowhere in either the warrants or in affidavit form is there a definition of “espionage paraphernalia.” The fact that the term may be read in the context of the listing of specific items to be searched for which precedes it,
Andresen v. Maryland,
*521
supra,
sheds no light on the subject. Indeed, the nature of the items seized by the FBI agents, including blank paper, pencils, and a Carter-Mondale campaign button, provides a strong indication that the agents either did not understand the term “espionage paraphernalia” or perceived no limit in the warrants on the scope of the searches.
30
See In re Search Warrant Dated July 4, 1977,
436 F.Supp. 689 (D.D.C.1977). Thus, the facts undercut the government’s argument that the “justifications for the remaining items listed in the warrants — e.g., ‘espionage operating instructions’, [sic] ‘espionage paraphernalia’ — are self-explanatory.” [Government’s Brief at 74]
The need for particularity is especially significant where, as here, the warrant authorized seizure of evidence of the crime of conspiracy.
It seems self-evident, then, in considering both the warrant and the affidavit supporting it, that the agents in this case had no clear standard to guide their exercise of discretion. . . . For unless the contents of any particular document rendered it manifestly criminal, the decision whether to seize it was complicated by the subjective considerations attending the law of conspiracy. In effect, each agent had been delegated authority to consider the relevance of the documents according to his own subjective standards as to what evidences the conspiracies suggested by the affidavit, (citations omitted).
436 F.Supp. at 697-98 .
See also Krulewitch v. United States,
336 U.S. 440 , 69 S.Ct. 716 , 93 L.Ed. 790 (1949).
It is of no consequence that certain of the materials seized were described with particularity in the warrants. The inclusion in the warrant of certain specifics provided the defendants no protection from violation of their right to be free from general searches. The searches which in fact occurred were no more narrow because of the particulars than they would have been had the particulars not been present at all.
United States v. Burch,
432 F.Supp. 961 (D.Del.1977).
I note that
United States v. Forsythe,
560 F.2d 1127 (3d Cir. 1977), cited by the United States for the proposition that a warrant cannot be invalidated where one item is improperly included, deals not with the question of facial overbreadth of a warrant, but with the unrelated question of whether items seized in excess of the specifications of a facially valid warrant need be suppressed.
Finally, the seizures cannot be justified on the basis of the “plain view” doctrine enunciated in
Coolidge v. New Hampshire,
403 U.S. 443 , 91 S.Ct. 2022 , 29 L.Ed.2d 564 (1971).
Coolidge
permits seizure of evidence not specified in the warrants when,
inter alia,
the agents have “no intention of rummaging around [the defendant’s] effects . . .”
Id.
at 488 , 91 S.Ct. at 2049.
[T]he extension of the original justification [to search] is legitimate only where it is immediately apparent to the police that they have evidence before them; the “plain view” doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges.
Id.
at 466, 91 S.Ct. at 2038.
New of the items listed on the exhibit list can, by any stretch of the imagination, be termed evidence of criminal conduct. The procedure followed by the agents was, more than anything else, in the nature of an inventory. The United States has not attempted to justify the searches as inventory searches. Thus, I find that the behavior of the agents constituted “rummaging around” the personal effects of the defendants and not a legitimate “plain view” search.
Accordingly, the motion to suppress the materials seized from the defendants’ automobiles is granted.
*522
X.
The defendants have moved, pursuant to Fed.R.Cr.P. 41, to suppress the films referred to in Count II of the indictment and in overt act 59 to Counts I and III
31
and any other material which may have been taken from the alleged co-conspirator Zinyakin on May 20,1978 at the time and place the defendants were arrested. In addition to the films specified in overt act 59, the defendants argue that all similar films are involved, since the United States’ exhibit list does not indicate that they were taken from the persons of the defendants or their automobile. From this the defendants draw the inference that the films were taken from Zinyakin.
The facts material to this motion are uncomplicated. The material sought to be suppressed, a Tropicana orange juice container containing several rolls of 35mm film, was taken from Zinyakin after he had retrieved them from the roadside but before he had completed his return to the car in which Enger and Chernyayev awaited him.
No warrant to arrest or search Zinyakin was issued. The defendants argue that the materials taken from him were illegally seized for lack of a warrant and his entitlement to diplomatic immunity and thus must be suppressed as to them.
32
The government, in opposition, contends that the defendants lack standing to assert the allegedly illegal search and seizure, and that, even if the defendants have standing, the seizure was reasonable under prevailing fourth amendment standards.
The threshold issue is whether the defendants have standing on this motion to suppress to assert Zinyakin’s rights to diplomatic immunity.
The defendants have advanced three separate grounds which, they contend, give them standing: (1) that the defendants’ own fourth amendment rights were violated since the allegedly illegal “arrest” of and seizure from Zinyakin took place in their presence,
Brown v. United States,
411 U.S. 223 , 93 S.Ct. 1565 , 36 L.Ed.2d 208 (1973); (2) that the seizure was directed at the defendants, thus bringing them within the protection of
United States v. Jeffers,
342 U.S. 48 , 72 S.Ct. 93 , 96 L.Ed. 59 (1951); and (3) that they have “automatic standing” under the rule of
Jones v. United States,
362 U.S. 257 , 80 S.Ct. 725 , 4 L.Ed.2d 697 (1960).
I first consider the question of automatic standing.
In
Jones v. United States, supra,
the Supreme Court adopted the rule that where possession of illegal material is an ingredient of the offense, the indictment charging possession provides the defendant with a sufficient interest in the material to establish standing. While the automatic standing rule has come under substantial criticism in light of the Supreme Court’s subsequent decision in
Simmons v. United States,
390 U.S. 377 , 88 S.Ct. 967 , 19 L.Ed.2d 1247 (1968),
see, e.g., United States v. Delguyd,
542 F.2d 346 (6th Cir. 1976),
Jones
remains the law of this circuit.
United States v. West,
453 F.2d 1351 (3d Cir. 1972). The concept of automatic standing is an exception to the general rule that fourth amendment rights may not be vicariously asserted.
United States v. Riquelmy,
572 F.2d 947, 950 (2d Cir. 1978),
quoting Alderman v. United States,
394 U.S. 165, 171-72 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1968).
The standing issue cannot be decided without reference to the allegations of the
*523
indictment. Counts I and III, which allege conspiracy to violate the espionage laws, obviously do not charge possessory offenses. Count II, on the other hand, alleges that the defendants “did knowingly and wilfully obtain photographic film of a document and writing connected with the national defense of the United States” contrary to 18 U.S.C. §§ 793 (b) and 2. Thus, the offense charged is possessory in nature, and the United States cannot be heard to say that the defendants have an insufficient possessory interest to challenge the legality of the search and seizure while simultaneously contending that they have a sufficient possessory interest to uphold a conviction. This “prosecutorial self-contradiction,”
see United States v. Riquelmy, supra; Brown v. United States, supra,
has long been condemned.
Jones v. United States, supra.
Thus, the defendants have standing to challenge the legality of the search and seizure as to Count II.
Next to be considered is whether the defendants have standing to move to suppress as to Counts I and III, which do not charge possessory offenses, on the other grounds urged by defendants.
33
The defendants do not have standing under
United States v. Jeffers, supra. Jeffers
held unconstitutional the warrantless search for narcotics owned by the defendant in a hotel room rented by his two aunts. Neither the defendant nor his aunts were present when the search was made. In holding that the search violated the defendant’s reasonable expectation of privacy, the Supreme Court noted that his standing to move to suppress the fruits of the search was “unquestionable.”
Id.
342 U.S. at 52 , 72 S.Ct. 93 . It has been suggested that
Jeffers
is no longer good law in light of the Court’s subsequent holding in
Alderman v. United States,
394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969), although it has not been explicitly overruled.
34
I need not consider that question since
Jeffers
is distinguishable from the instant case. In
Jeffers
the Court based its decision on the fact that the seized material, although contraband, was his property for purposes of the exclusionary rule. It cannot be contended here that the materials taken from Zinyakin constituted the defendants’ property. Enger and Chernyayev had never even seen, except perhaps from the car while Zinyakin was retrieving them, the items seized, and thus had no property rights in them. Thus, assuming
Jeffers
to be good law, the rationale of its holding does not confer standing upon the defendants here.
In
Brown v. United States, supra,
the defendants were convicted of transporting and conspiring to transport stolen goods. Police searched the store of Knuckles, a co-conspirator, and seized stolen goods which were admitted into evidence. The defendants, who had “sold” the goods to Knuckles, were not present at the store when the search was made. The acts charged in the indictment were limitéd to the period preceding the search. The Supreme Court held that the defendants lacked standing to challenge the search: “[T]here is no standing to contest a search and seizure where, as here, the defendants: (a) were not on the premises at the time of
*524
the contested search and seizure . . .”
Id.
411 U.S. at 229 , 93 S.Ct. at 1569 . Here, given defendants’ alleged involvement in the specific act charged, it is clear that the search of Zinyakin took place in their immediate presence.
Accordingly, logically extending
Brown ,
the defendants have actual standing to move to suppress.
United States v. Galante,
547 F.2d 733, 739-40 (2d Cir. 1976),
cert. denied,
431 U.S. 969 , 97 S.Ct. 2930 , 53 L.Ed.2d 1066 (1977);
United States v. Westerbann-Martinez,
435 F.Supp. 690, 695 (E.D.N.Y.1977).
I now proceed to consider the merits. Since I find that the motion to suppress must be granted as the materials were seized in violation of settled principles of diplomatic immunity, there is no need to reach the question of the seizure’s reasonableness.
The law governing diplomatic immunity has been discussed previously in the context of its lack of applicability to the defendants Enger and Chernyayev.
See
Point I,
supra.
The instant motion presents the related question of whether Enger and Chernyayev may successfully move to suppress evidence taken from Zinyakin, who is concededly entitled to the protection of diplomatic immunity. Based upon the United States’ recognition of Zinyakin’s right to immunity and its knowledge that he was involved in the activities reflected in the indictment, I conclude that no valid search could be made of him. Since the materials taken from him were illegally seized, they must be suppressed. Support for this conclusion is found in 22 U.S.C. § 252 ,
see supra
at 7, which “deem[s] void” the arrest of a foreign minister and seizure of his personal goods or chattels. Indeed, from 1790 it has been the law of the United States that violation of 22 U.S.C. § 252 is a criminal offense. 22 U.S.C. § 253 . As has been previously noted, Point I,
supra,
the policy underlying 22 U.S.C. § 252 , the facilitation of relations among nations, requires that the statute be generously construed as declarative of the international law of diplomatic immunity. In light of the full immunity due Zinyakin under the statute, I must construe “goods or chattels” in a manner coextensive with the scope of immunity provided by the statute.
Had this matter involved the limited immunity provided, for example, under the International Organizations Immunities Act, 22 U.S.C. § 288d(b), existing precedent would support the view that personal “goods or chattels” would not protect from seizure goods used for unlawful purposes.
See United States v. Melekh,
190 F.Supp. 67 (S.D.N.Y.1960). This, however, is not the case.
The government argues that suppression on the basis of diplomatic immunity will expand the protection of diplomatic immunity to persons to whom its protection is not contemplated by statute, treaty, or international custom. The argument has considerable persuasive force. However, to deny suppression here would contravene provision of the full immunity provided by the statute.
Further support is found in Article 29 of the Vienna Convention, which states: “The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention.” It is undisputed that Zinyakin was in some way detained by the FBI agents who seized the Tropicana carton and its contents, although counsel differ on how that detention should be characterized. The United States contends that some limited detention was necessary to confirm Zinyakin’s identity and entitlement to immunity. In so doing, the United States argues that the agents acted according to established procedures for treatment of foreign officials. Assuming that the United States did act properly, confirmation of identity was the outer limit of the permissible scope of his detention under the Vienna Convention. Thus, I find that no seizure of anything in his possession could legally be made during his detention.
35
Since the sei
*525
zure was illegal, its fruits must be suppressed.
None of the theories offered by the United States in opposition to the motion is persuasive. The United States argues that a search incident to the functional equivalent of an arrest satisfied fourth amendment requirements.
Cupp v. Murphy,
412 U.S. 291 , 93 S.Ct. 2000 , 36 L.Ed.2d 900 (1973).
See Chimel v. California,
395 U.S. 752 , 89 S.Ct. 2034 , 23 L.Ed.2d 685 (1969).
Cupp ,
upon which the United States relies heavily, held that the taking of fingernail scrapings from a murder suspect who had not been formally arrested was justified because the police had probable cause to arrest even though they did not do so.
Cupp
does not aid the United States’ position for the simple reason that the protective cloak of diplomatic immunity operates without reference to the existence or nonexistence of probable cause. The existence of probable cause to arrest a diplomatic agent may be indisputable, but the law is clear that he may not be arrested. 22 U.S.C. § 252 . I find no reason to distinguish the situation in which there is probable cause to conduct a search.
The same objection, that the protection of diplomatic immunity overrides otherwise legal searches and seizures, is validly interposed to the United States’ argument that the seized material was in plain view. The prohibition of the immunity is absolute. Moreover, the United States has submitted no affidavit in support of its contention, made only in its brief, that the Tropicana carton was in fact in plain view. Thus, there is no factual basis upon which I could uphold the United States’ theory were I inclined to do so.
For the foregoing reasons the motion to suppress all materials seized from Zinyakin is granted as to all three counts.
XI.
The defendants next argue that the videotapes and recordings of the defendants were made in violation of their constitutional rights.
I find this contention without merit based upon the unrefuted claim of the United States that the videotapes were made of the defendants while they were in public places where they could have no legitimate expectation of privacy.
As to the tape recordings, the United States represents that they were made with the consent of the confidential source who was a party to the conversation recorded.
See Lopez v. United States,
373 U.S. 427, 437-39 , 83 S.Ct. 1381 , 10 L.Ed.2d 462 (1963).
Accordingly, the defendants’ motion to suppress videotapes and recordings of their activities and recordings is denied.
OPINION ON MOTION FOR RECONSIDERATION
There follows my opinion on the motion by the United States for reconsideration of so much of my decision of August 8, 1978 as relates to Points IX and X.
IX.
The United States having moved for reconsideration on defendants’ motion for suppression, the motion is granted and, upon reconsideration, the defendants’ motion to suppress is denied.
I was, upon initial consideration, concerned over the seeming generality of the warrant, since (as I noted in my opinion of August 8, 1978) as I perceived it from the submissions before me at that time, it seemed that the searching agents themselves had been unable to define what items were covered by the warrant and had seized everything in the defendants’ automobiles. The subsequent information produced by the United States, and the evidentiary hearing held before me on the motion for reconsideration, convince me that my initial determination must be revised.
The initial search, it now appears, left untouched numerous items in the de
*526
fendants’ automobiles. Thus my earlier determination that the agents “perceived no limit in the warrants on the scope of the searches,” must now be revised. They did in fact recognize the limits inherent in the warrants. Accordingly, I reconsider my earlier ruling and deny the motion to suppress that material obtained from the automobiles on May 20, 1978.
As to the later searches, conducted in June 1978, resulting in the returns of June 28, 1978, my examination of the returns of said materials leads me to conclude, as I have already noted, that the items seized did not fall within the scope of the warrants. Indeed, as I have noted, the F.B.I. agents conducting the searches recognized this when they conducted the initial searches. This is why the materials were left in the automobiles.
The United States seeks to justify the second searches by claiming that they were made, at least in part, because the defendants’ counsel made a request of the United States that it list all of the materials taken from the automobiles. In connection with the motion for reconsideration, I conducted an evidentiary hearing to resolve a dispute over whether in fact such a request was made. After hearing the testimony of respective counsel for the United States and the defendants, I conclude that the United States believed that such a request was being made of it and that this belief played a substantial part in the United States Attorney ordering the second searches. While I have substantial doubts about the relevancy of the materials then seized to the issues in this case, I will at this time, upon reconsideration of my earlier decision, deny the motion to suppress these items.
Nothing stated herein is intended to reflect upon the credibility of the witness called by the defendants at the evidentiary hearing. Additionally, by expressing doubt as to the relevancy of the materials seized in June 1978, and not addressing the relevancy of the items seized on May 20,1978,1 do not intend to reflect a belief that the earlier seized items are relevant or irrelevant, in whole or in part.
X.
The United States has moved for reconsideration of my determination granting the defendants’ motion to suppress materials taken from the alleged co-conspirator Zinyakin on May 20, 1978. On this motion the United States has presented facts not previously revealed to the court, chiefly through the affidavits (with attachments) of F.B.I. Special Agents Pass and KearyTaylor, and the supplemental affidavit of Mr. Pass. These cast an entirely different light on the matter. Moreover, counsel, by prodigious research, have unearthed judicial precedent and writings in international law which I find most persuasive. Accordingly, the motion for reconsideration of my decision of August 8,1978, granting the defendants’ motion to suppress all items seized from Zinyakin is granted, my previous decision is vacated, and the motion to suppress is denied.
No warrant to arrest or search Zinyakin was issued. The defendants argue that the materials taken from him were illegally seized for lack of a warrant and his entitlement to diplomatic immunity and thus must be suppressed as to them. The United States concedes that Zinyakin was entitled to diplomatic immunity; however, it also contends that the defendants lack standing to assert the alleged illegal seizure and that the seizure was in any event reasonable.
I have now had an opportunity to review the various writings and other materials which allegedly were part of the charged unlawful acts of the defendants, and which, the United States contends, were received from them by the “Navy officer” [hereinafter the “source”] from September 1977 up to and including May 20, 1978. I have also now seen certain film and videotape which the United States alleges depict the defendants’ charged activities, and I have heard recordings of certain telephone conversations which the United States alleges were
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between the source and “Jim,” acting on behalf of the defendants.
1
Thus, I have now reviewed and considered, in addition to the materials submitted previously and referred to in my opinion of August 8, 1978, the following exhibits: G-200, 303, 403, 408, 409, 502, 506, 508, 610, 611, 711, 713, 707A and B, 801A and B, 905A and B, 708A and B, 810, 811A and B.
2
There is no need to quote extensively from the writings or the telephone conversations. It is sufficient to state that the submitted materials show that the originat- or or originators of the writings to “Ed,” the source, had an extensive knowledge of the weaponry of the United States, were expert in establishing a secure chain of communications with the source, had vast sums to pay the source for secret information he might pass to them, were concerned about the 25-mile restriction upon their travel (without notice to the State Department) and wanted to establish one or more meetings with the source outside the United States. Their skill in what would be necessary to purloin classified national defense information was also manifested.
I shall accordingly now deal in detail with just a small sample of the materials recently submitted by the United States on its motion for reconsideration, assuming them, and the inferences reasonably to be drawn from them, to be true for purposes of this motion.
Thus, on March 11, 1978 the source, by virtue of instructions received on February 18, 1978 [G-713, para. 10], had a telephone contact, allegedly with the defendants, at the Cheesequake Service Area on the Garden State Parkway. The conversation as recorded is reflected in a transcript, which I find accurately reflects the conversation, as follows [G-801B]:
CALLING PARTY: Very good. Now, Ed, . uh . right now you are on the west side of that alley, right?
NAVY OFFICER: On the west side, yes.
CALLING PARTY: Now, you proceed to the east . uh . side and you’ll see the . . . uh . exactly the same telephone booth there.
NAVY OFFICER: Yes.
CALLING PARTY: In the middle one.
NAVY OFFICER: Yes.
CALLING PARTY: In the middle one, the last number is 36, . under the shelf, you’ll find a small package wrapped in a black paper, and . uh . sticked to that shelf . uh . with a scotch. Just pick it up and proceed according to the-e-e instructions. OK? [sic]
NAVY OFFICER: OK.
CALLING PARTY: As always, and then you’ll find exact time when we’ll . I will be calling you again, at the very end. OK?
NAVY OFFICER: At the very end, huh?
CALLING PARTY: Yeah_____
NAVY OFFICER: All the instructions will be over on the other side.
CALLING PARTY: Right . . . right, over there. And . uh . do exactly as it is said over there. And, in any case, try to wait for my call. OK?
NAVY OFFICER: OK. Now that’s the middle phone, number thir . ., last digits num_____ [sic]
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CALLING PARTY: The last two numbers is 36. It’s just middle. You know there are three booths?
NAVY OFFICER: Yes.
CALLING PARTY: And that one is just in the-e mid ... in between. NAVY OFFICER: OK.
CALLING PARTY: OK?
NAVY OFFICER: Real fine.
CALLING PARTY: Urn urn. OK, Ed____
NAVY OFFICER: I’ll call____
CALLING PARTY: (inaudible)
NAVY OFFICER: I’ll call you later on then.
CALLING PARTY: No need to call____
NAVY OFFICER: Oh, you’ll____
CALLING PARTY: I’ll call you myself.
NAVY OFFICER: You’ll be calling me?
CALLING PARTY: Right.
NAVY OFFICER: OK.
CALLING PARTY: OK. Bye-bye.
NAVY OFFICER: Bye.
Thereafter, following the foregoing instructions, the source was led to a cache on Fulner Street, South Amboy, New Jersey, where he picked up 'materials allegedly left for him by the defendants.
Included in these materials was the following communication, allegedly from the defendants, to the source [G-804]:
Dear Ed,
In this letter I would like to point out the following.
1. You understand properly the conditions for our permanent contact. Just always remember them.
2. The conditions for an emergency call from us are acceptable as well. And of course we’ll never use them unless it is a real case of emergency.
3. The conditions of your emergency call for a meeting are being considered now and we will let you know them later.
4. We have roughly evaluated the latest materials received from you. Enclosed, please, find $3000 for them. By the way, have you paid attention to my request to pass over to us the films of latest documents dated 1976-1978 [sic], if possible?
5. Our next operation will take place on May 13 [sic]. Alternate date — May 20. For the provisional contact we will use the telephones on the east outside of “A & P” store, located on road # I [sic], near exit # 130 [sic] from GARDEN STATE PKWY. (See the map below.) Wait for my call there at the usual time. Phone numbers: 225-9860, 2259855 [sic],
6. For that operation, please, try to prepare materials on submarine acoustic detection system's.
7. Use a package from “TROPICANA” as a container for your materials.
8. The new schedule for operations will be handed over to you in MAY. It will be planned on the basis of one operation every other month. (I. e. 6 operations a year.)
Please, make the necessary notes & destroy this letter.
In no case keep my letters.
Best wishes,
Jim.
Also bearing on the March 11, 1978 contact is the information conveyed by the source and others to the F.B.I. agent who filed the complaint. This information is best set forth by quoting from the complaint, as follows (pp. 8-10):
On March 11, 1978, the confidential source advised the complainant that on that date at about 2:01 p. m. he was called at a public telephone at the Cheese-quake Service Area, Garden State Parkway, by an unknown male caller identifying himself as “Jim,” who instructed him to retrieve a container secreted under the shelf of a specified public telephone booth in that area, and to read and follow the instructions contained therein. “Jim” told the confidential source he would call him again at the phone identified in the written instructions.
Pursuant to instructions the confidential source retrieved this container which contained a typewritten letter from “Jim” which instructed the confidential
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source that “To-day we’ll have the same kind of the operation we had last time” and directed him to proceed to the drop site at “the third lighting pole.” The confidential source followed these instructions and retrieved a red “Martin-son” coffee can from the base of the third pole on Fulner Street in South Amboy, New Jersey and deposited his camouflaged milk carton containing exposed film of documents at that same location at about 2:25 p. m.
The confidential source advised that in this coffee can were secreted $3,000 in U.S. currency and a typewritten letter from “Jim,” which stated in part as follows:
“We have roughly evaluated the latest materials received from you. Enclosed, please, find $3000 for them. By the way, have you paid attention to my request to pass over to us the films of latest documents dated 1976-1978, if possible?”
“Our next operation will take place on May 13.”
“For that operation, please try to prepare materials on submarine acoustic detection systems.”
The complainant personally observed and was advised by other Special Agents of the Federal Bureau of Investigation who participated in this investigation that on March 11, 1978 a gray Dodge bearing New York license 155-QXR was observed driving around in the vicinity of the third pole on Fulner Street in South Amboy, New Jersey, immediately prior to the time when the confidential source deposited his container of documents at the base of this third pole. Also defendant ENGER was the driver and co-conspirator ZINYAKIN was a front seat passenger in this Dodge. Shortly after the confidential source had deposited his container of documents, Special Agents of the Federal Bureau of Investigation who participated in this investigation advised the complainant that they observed the following at about 2:26 p. m.:
The above gray Dodge with defendant ENGER driving and co-conspirator ZINYAKIN a front seat passenger approached and stopped near the above third pole where co-conspirator ZINYAKIN walked quickly to the above third pole where he picked up the milk carton of filmed documents and immediately entered the rear seat behind defendant EN-GER who then drove north on Fulner Street.
The confidential source advised the complainant he received a subsequent telephone call that day at another public telephone booth from “Jim,” who acknowledged that he had received the documents and May 13 was confirmed as the date for the next operation.
The complainant was further advised by other Special Agents of the Federal Bureau of Investigation who participated in this investigation that on March 11, 1978 they observed the following:
At about 2:31 p. m., defendant EN-GER, alone in the gray Dodge, was observed driving around a traffic circle near exit 125 of the Garden State Parkway; at about 2:37 p. m., defendant ENGER alone was observed in this gray Dodge at the Cheesequake Service Area; at about the same time, a light blue Dodge bearing New York license 480-GPF, drove into the Cheesequake Service Area driven by defendant CHERNYAYEV and occupied in the front passenger seat by co-conspirator ZINYAKIN. Shortly thereafter, defendants ENGER and CHERNYAYEV and co-conspirator ZINYAKIN were observed at that same location carrying on a very animated conversation. Defendant CHERNYAYEV and co-conspirator ZINYAKIN then left together in the above blue Dodge and defendant ENGER followed immediately in his gray Dodge with both vehicles travelling northbound on the Garden State Parkway.
Prior to May 20, 1978, the source photographed the classified document referred to in Count 2 of the indictment, was seen by the F.B.I. placing the negatives into five film canisters, and, in accordance with the instructions received from “Jim” on March
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11 in the Fulner Street cache, placed the canisters into a “Tropicana” container, which was then sealed.
See
G-804, para. 7. On May 20, further in accordance with the aforesaid instructions, the source then drove off in his automobile to the A & P in Fords, New Jersey [G-804, para. 5], there to be telephoned by “Jim.”
Contemporaneously, the F.B.I. agents drove to vantage points near the aforesaid A & P store. Thus at 12:42-12:43 p. m. they saw Enger drive his automobile into the A & P parking lot with Zinyakin in the front right seat, with Chernyayev following immediately behind in his automobile. The two cars parked side-by-side in the A & P parking lot.
At 1:50 p. m. the source entered the A & P parking lot, parked his car, and eventually placed himself near the east wall telephones.
At 1:54 p..m. Zinyakin handed an object to Chernyayev who, in his car, drove to another location in the parking lot, got out of his car, and deposited an object at the base of the southeast corner of the A & P building. He then returned to his car and drove out of the parking lot at 1:56 p. m., proceeding to the “dropsite” in Woodbridge (see G-907, infra).
The call, allegedly by Enger, at “the usual time” (2 p. m.) [G-804, para. 5,
supra],
was observed by agents to be made at about 1:59 p. m. from a telephone on the north outside wall of the A & P store, after Enger left his car and walked to that location. Simultaneously, the source, presumably hearing a ring on an east wall telephone, picked up the receiver and a telephone conversation ensued which, with the source’s consent, was recorded and transcribed (G-905B).
3
As the transcript shows, “Ed” [the same name used by the writer of the written communications, G-803 and 804, to address the source], after being greeted by that name, was directed to go to “the other side of the building” and pick up an “A & P whipped cream [container].” He was also told “before going any place please do read carefully the questionnaire we gave you. OK?” (G — 905b). The caller, allegedly Enger, as I have noted, added “[e]verything is like ... ah ... in previous times. OK? . . . and you’ll find everything in, and I’ll call you next time you know what, when and where. OK?”
Id.
At 2 p. m. the brief conversation ended and the source, pursuant to the instructions just received, walked directly to the southeast corner of the A & P building and, at the same location where Chernyayev had just been observed depositing an object, picked up a whipped cream container containing more instructions from “Jim.” G— 907, G-915.
G-907, again addressed to “Ed,” reads:
DEAR ED,
1. Thoroughly examine the map & sketches.
2. Right now you are at point “A” [on the map]. After reading the instruction proceed to point “B” — place of DLB. Your route there: route # I (north),
4
right turn at the first traffic signal to Woodbridge Center Drive, right turn to Highview Dr. (See the map.)
3. Place of DLB [Dead Letter
Box
— see G-508, para. 1] beyond the group of three trees which will be on your left. (See the picture “B”)
4. Pick up our container & at the same place leave your container. Our container — crashed [sic] can from pears— “BARTLETT PEARS” ANN PAGE. Colour — yellow & green.
5. While loading & unloading DLB see to it that there are no people near you. Better wait till the area is clear.
6. Immediately leave this place & proceed to point “C” — public telephones (## 636-9868, 636-9866) located be
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tween the doors of the entrance of “STERN BROTHERS” STORE. (See the sketch.)
I’ll call you there at 2.25 p. m., and then at 2.30., 2.40., 2.50 p. m., 3.00 p. m., 3.30 p. m.
BEST OF LUCK TO YOU JIM
G-915 reads:
Hello,
At present we are making the necessary arrangements to prepare our personal meeting with you in Europe, in Austria. Therefore before you go on with our to-days [sic] operation, please, answer the following questions & enclose this list in your container.
Only after this
s

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2124454. Public record. Not legal advice.