The opinion of the court was delivered by: RIFKIND
On March 4, 1949, defendant Gubitchev was arrested and on March 10, 1949 was indicted of conspiracy to violate and of violations of the espionage laws.
His arraignment was adjourned from time to time, first to give him an opportunity to retain counsel and then to afford him an opportunity to decide whether he would accept the services of counsel assigned by the court. He was finally arraigned on March 15, 1949, after he had refused to accept the aid of assigned counsel. Upon his refusal to plead, the court ordered the entry of a plea of not guilty in his behalf. Federal Rules of Criminal Procedure, Rule 11, 18 U.S.C.A.
Defendant claimed diplomatic immunity and, sua sponte, the court undertook to examine the question of its jurisdiction to try the defendant for the offense charged.
At the court's request, Mr. Fowler Hamilton, the attorney whom I had assigned to represent the defendant, filed an excellent brief, amicus curiae, together with a statement of the facts uncovered by him in the course of his inquiry. The Government likewise submitted a helpful brief, together with copies of two aides-memoire transmitted by the State Department to the Soviet Embassy.
I. The defendant is a citizen of the Union of Soviet Socialist Republics. He entered the United States on or about July 20, 1946. At the time of his arrest he was employed as a member of the staff of the Headquarters Planning Office of the Secretariat of the United Nations.
Such status does not per se confer diplomatic immunity under generally accepted principles of international law. Comment, 1948, 46 Michigan Law Review 381. See authorities cited in Note, 1946, 55 Yale Law Journal 778, 780, and particularly footnotes 9 and 10. Nor does the defendant, by reason of such employment, possess immunity from prosecution for the offense charged by virtue of any law or treaty of the United States, for the only possible sources of such a privilege are the statutes and treaties hereinafter discussed, and they do not confer the immunity asserted.
He is not protected by 22 U.S.C.A. § 252 and 254, because he is not a public minister of a foreign state, authorized and received as such by the President, nor a domestic or domestic servant of one.
Executive Order No. 9698, 22 U.S.C.A. § 288 note, 11 Fed.Reg. 1809 has made the International Organizations immunities Act, 22 U.S.C.A. § 288, applicable to the United Nations. But that Act does not avail the defendant. It does not confer general diplomatic status immunity, Secs. 288e(c). It does confer immunity on United Nations officers and employees for the category of acts performed by them in their official capacity and falling within their functions as such officers or employees. Sec. 288d(b). The offense charged against the defendant does not fall within such a category.
The United States is party to the United Nations charter, Article 105 of which provides:
'2. Representatives of the Members of the United Nations and officials of the Organization shall similarly enjoy such privileges and immunities as are necessary for the independent exercise of their function in connection with the Organization.
'3. The General Assembly may make recommendations with a view to determining the details of the application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the United Nations for this purpose.' 59 Stat. 1031, 1053.
The Charter provision in and of itself- assuming it to be self-executing- does not shield the defendant. It seems clear that unlawful espionage is not a function of the defendant as an employee of the United Nations. Freedom from arrest for such conduct, it would seem is not a privilege or immunity necessary for the independent exercise of defendant's function in connection with the United Nations.
The General Assembly in compliance with subdivision 3 quoted above has proposed a convention for the application of Article 105 of the Charter.
However, the United States has not yet adhered thereto.
The last possible source of privilege for the defendant, as an employee of the United Nations, is the Headquarters Agreement between the United States and the United Nations, 1947, 61 Stat. 756. That agreement will receive further treatment hereinafter. Suffice it to say at this point that employment relationship to the United Nations alone, confer any immunity upon the defendant.
It follows from the foregoing that defendant's status as an employee of the United Nations conferred upon him no privilege or immunity which should constitute an obstacle to his apprehension, trial or ...