The opinion of the court was delivered by: RYAN
Defendant Gubitchev moves to dismiss the indictment against him on the grounds that the court is without jurisdiction over him by reason of his diplomatic immunity and that exclusive jurisdiction of this cause is vested in the Supreme Court of the United States, under 28 U.S.C.A. § 1251. The latter contention was considered sua sponte and rejected by Judge Rifkind in a well-reasoned opinion. D.C., 84 F.Supp. 472. At that time defendant Gubitchev was not represented by counsel, he having persistently refused the services of counsel repeatedly offered him by the judges of this court. Mr. Fowler Hamilton, acting as amicus curiae at the court's request, submitted to Judge Rifkind an exhaustive and scholarly memorandum on the subject of diplomatic immunity. Judge Rifkind concluded that the defendant was not a 'public minister' within the meaning of Section 1251, 28 U.S.C.A. which conclusion was justified by the evidence and which I accept as the law on that point.
Gubitchev has since retained counsel of his own choosing and now moves for reargument and reconsideration of the question of jurisdiction. As the trial judge, I have entertained this motion, granted reargument and taken proof in the form of documentary exhibits. At the outset of the hearings on this motion, Mr. Lev. S. Tolokonnikov, First Secretary of the Embassy of the Union of Soviet Socialist Republics to the United States of America, appeared before me and submitted a communication from His Excellency Alexander S. Panyshkin, Ambassador Extraordinary and Plenipotentiary of the Union of Soviet Socialist Republics to the United States, reading as follows:
'To the Honorable District Judges of the U.S. District Court for the Southern District of New York.
'I hereby have the honor to draw your attention to the fact that the Soviet citizen, Vanentin A. Gubitchev, is an officer of the diplomatic service in the Ministry of Foreign Affairs of the USSR since April 26, 1946, with the diplomatic rank of Third Secretary.
'In this capacity, Mr. Gubitchev V. A. was sent, with the permission of the Government of the Union of Soviet Socialist Republics, to the USA to work in the Secretariet of the United Nations Organization.
'Mr. Gubitchev V. A. arrived in the USA in July, 1946, having the Soviet Diplomatic Passport No. 12032 and the Diplomatic Visa No. 202 issued by the USA Embassy in Moscow on June 24, 1946.
'The Soviet Government has not revoked the diplomatic status of Mr. Gubitchev V. A. and up to the present time he remains an officer of the Ministry of Foreign Affairs of the USSR, with the diplomatic rank of Third Secretary.
'Respectfully (signed) Alexander S. Panyshkin Ambassador Extraordinary and Plenipotentiary of the USSR to the USA'
Although the presentation of such a communication from a foreign ambassador to a judge in a pending criminal trial appears to be without precedent, I received it as a courtesy and forwarded it to the Secretary of State. (Court's Ex. 1)
The charges against this defendant are serious; his allegedly unlawful activities, it is charged, were directed against the Government of the United States and were liable to endanger its security as well as its peace with other nations. The Department of State has in the past had occasion to remind foreign governments that even if they have the right to interpose the defense of diplomatic immunity, they should not, under international law, so interfere with the course of justice or permit such privileges, if they exist, to shield from just punishment a perpetrator of crimes such as the ones here charged. (Cf., Matter of Wolf van Igel, attached to the German Embassy, 1916 For.Rel.Supp. 808-815.)
Counsel for Gubitchev concedes that (1) he is not a diplomatic officer of the Union of Soviet Socialist Republics attached to the Soviet Embassy in this country, and (2) the defendant was neither ...