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June 20, 1956


The opinion of the court was delivered by: KAUFMAN

On March 29, 1951, a jury of eleven men and one woman found Morton Sobell guilty of conspiring to commit espionage by transmitting to the Soviet Union, intended for its benefit, 'documents, writings, sketches, notes and information relating to the national defense of the United States.' Their verdict was returned at the end of an exhaustive trial, at which Sobell's two extremely able attorneys and the able lawyers of his codefendants, Julius and Ethel Rosenberg, skillfully but vainly tried to stem the avalanche of evidence against them. The trial was held in a manner which impelled the defense attorneys to compliment the Court for its fairness and courtesies on three separate occasions, and to state that the trial had been conducted 'with that dignity and that decorum that befits an American trial.' *fn1"

Now five years later, Morton Sobell has petitioned this Court pursuant to 28 U.S.C. 2255 to set aside this verdict and judgment, alleging that his constitutional rights have been violated and that the court was without jurisdiction to try him. The contentions now raised by Sobell relate to procedural and constitutional issues which do not go to the question of his guilt or innocence. Even if every one of the contentions now raised by petitioner was to be sustained, it would not follow that he is innocent. *fn2"

 Former Judicial Proceedings In This Case

 The convictions of Sobell and his codefendants were affirmed by the Court of Appeals for the Second Circuit in a detailed opinion which contained the following language:

 'Since two of the defendants must be put to death if the judgment stand, it goes without saying that we have scrutinized the record with extraordinary care to see whether it contains any of the errors asserted on this appeal.' United States v. Rosenberg, 2 Cir., 1952, 195 F.2d 583, 590.

 Thereafter, defendants filed a petition for a writ of certiorari to the United States Supreme Court, and this was denied. 344 U.S. 838, 73 S. Ct. 21, 97 L. Ed. 652. In the following two years, Sobell participated in two motions brought under Section 2255 of the Judicial Code, each seeking to vacate the judgment on constitutional grounds; both motions were found to be without merit and were denied in the District Court. United States v. Rosenberg, 108 F.Supp. 798. The denials were affirmed on appeal by the Court of Appeals, 2 Cir., 200 F.2d 666, and a petition for a writ of certiorari filed after the first motion, was denied by the Supreme Court. Sobell v. United States, 345 U.S. 965, 73 S. Ct. 951, 97 L. Ed. 1383. After almost every one of the above decisions, petitions for rehearing were also considered and denied. 345 U.S. 1003, 73 S. Ct. 1131, 97 L. Ed. 1408; 347 U.S. 1021, 74 S. Ct. 860, 98 L. Ed. 1142. In addition, numerous applications for relief were made by the Rosenbergs, and although Sobell did not join in them, it is worth noting that none of the attacks on the judgment was sustained.

 This then is the background against which petitioner makes his present allegations and accusations of infringement of his constitutional rights. The record shows that in one form or another the case was before the United States Court of Appeals six times, always concluding with an affirmance, and before the United States Supreme Court six times on applications of one sort or another, always ending with the conviction remaining undisturbed, and this tally does not include the numerous proceedings at the District Court level and the various applications to other judges of the District Court.

 Sobell's Present Contentions

 The basic factual allegations set forth in Sobell's moving papers are not new to this Court. Indeed, they were first raised five days after the verdict on a motion in arrest of judgment. The denial of that motion was specifically affirmed on Sobell's initial appeal to the Court of Appeals, and it was set forth as one of the grounds supporting his prayer for reversal in the defendant's first petition for certiorari to the Supreme Court, which was denied. He argues, however, that although certain of these allegations have been made before, the legal consequences now urged as stemming from them have not been previously considered.

 Despite the lack of novelty in petitioner's present assertions, and despite the numerous hearings he has been accorded, the Court has again painstakingly re-examined the record in the light of his instant allegations. Such is the way in which a democratic society administers justice -- carefully, meticulously, and even repetitiously -- lest an error go undetected. Under our judicial system we impose a strong check upon the manner in which a prosecution may be conducted.

 It is difficult to find a case in the history of American jurisprudence, or indeed in the judicial annals of any other country, where the defendants' convictions and contentions have received the attention of so many judges at so many levels of a judicial system, as well as that of the President of the United States on applications for executive clemency. Not a single legal recourse has been or will be denied to Sobell.

 In his present petition, Sobell avers that he was kidnapped from Mexico by agents of the Mexican Secret Police two were acting under the orders of the FBI, and that he was thus forcibly and illegally returned to the United States against his will. He does not assert, however, that this alleged abduction deprived this court of any jurisdiction over his person. On the contrary, he not only concedes that he waived any such claim (assuming he would have had one) but he also asserts that he would have returned willingly to stand trial.

 The first argument he now makes concerning this so-called abduction is that it denied him the opportunity to return to the United States willingly, and that it was staged for the sole purpose of permitting the prosecution to represent to the jury that Sobell was a fugitive from justice. He asserts that when the government introduced evidence to show that he had been 'deported' from Mexico, this was subornation of perjury on the part of the prosecutors, as they then well knew that Sobell had not been deported in accordance with established Mexican procedures. He alleges further that the government deliberately suppressed evidence relating to this abduction and made misrepresentations to the Court about it -- and that any one of these alleged improprieties, if established, would show a deprivation of petitioner's constitutional rights.

 His second attack, set forth in a separate motion under Section 2255, is that this alleged kidnapping violated a treaty between the United States and Mexico. He argues that since this extradition treaty is the law of the land, its violation deprived the courts of this country of jurisdiction over the subject matter of this offense. Since, unlike jurisdiction over the person, lack of jurisdiction over the subject matter cannot be waived by a defendant, Sobell claims that this defect vitiated the entire trial, and that his conviction is a nullity.

 The Law Governing Motions Pursuant To Section 2255

 Section 2255 of the Judicial Code permits a convicted prisoner to move to set aside the sentence if it was imposed in violation of the Constitution or laws of the United States, or if the sentencing court was without jurisdiction to impose that sentence. The court then has a duty to order a prompt hearing upon the petitioner's allegations 'unless the motion and the files and the records of the case conclusively show that the prisoner is entitled to no relief.'

 In opposing the instant motions, the government has taken the position that Sobell's factual allegations regarding the prosecution's misconduct during the proceedings are completely contrary to the record, and that his legal arguments stemming from the allegations of his kidnapping are totally devoid of merit. In short, the government urges that Sobell's present allegations furnish no basis for vacating his conviction either because of violation of his constitutional rights or because this court was without jurisdiction to try him, and thus no hearing on their veracity is necessary. In passing on these motions, therefore, the Court is required to accept all of petitioner's averments as true insofar as they are not inconsistent with the record. Pelley v. United States, 7 Cir., 214 F.2d 597, certiorari denied 1954, 348 U.S. 915, 75 S. Ct. 296, 99 L. Ed. 718; United States v. Sturm, 7 Cir., 180 F.2d 413, certiorari denied 1950, 339 U.S. 986, 70 S. Ct. 1008, 94 L. Ed. 1388.

 Basically, the petitioner's allegations are that he and his family went to Mexico City in the spring of 1950, where they resided openly and under their own name. On the night of August 16, 1950, he says agents of the Mexican Secret Police entered the Sobell apartment there and arrested him without a warrant. When he tried to resist, he adds, they beat him into unconsciousness and took him to an unidentified building where he was detained overnight -- held completely incommunicado. The next day, he continues, he was forced to enter an auto with several of these agents, and they drove towards the border, stopping occasionally for the agents to make telephone calls -- presumably with regard to Sobell. When he reached the border bridge, a United States agent entered the car -- though still on Mexican territory -- and he rode with them to the U.S. Customs Office. There Sobell found that his wife and children had also been brought back. He was 'directed to sign a card', he says, and after his baggage was searched he was placed under arrest and taken to jail. He avers that this whole abduction was in violation of Mexican law and that the Mexican Secret Police had no legal authority to treat him in this fashion; -- he charges that they were merely acting as agents of the Federal Bureau of Investigation. He further avers that at the time of his seizure he had been planning to return to the United States -- his trip being but a vacation jaunt -- and this abduction prevented him from returning voluntarily.

 With reference to his motion challenging the court's jurisdiction to try him, Sobell makes the further allegation that his expulsion was in violation of the Treaty of Extradition between the United States of America and the United States of Mexico. 31 Stat. 1818. It is upon this last allegation that he bases his argument that this court was without jurisdiction to try him. I shall deal with that contention first.

 Motion I

 Sobell's Contention That This Court Lacked Jurisdiction To Try Him

 It is Sobell's position that the United States breached the extradition treaty with Mexico in two ways; first, because the offense with which he was charged was not among those enumerated in the treaty as extraditable, *fn3" and, second, because the manner of this removal from Mexico 'flouted the treaty requirements for specified official removal arrangements with duly constituted authorities of the Government of Mexico and for proceedings under Mexican law to determine probable guilt and justification for removal.' Petitioner's Second Memorandum, p. 22. These two facts, he charges, operate to invalidate the subsequent proceedings against him, because 'an existing extradition treaty fully controls the national power to conduct criminal proceedings involving alleged fugitives found in another treaty country. Absent treaty compliance, the power of the nation -- and thus of its judiciary -- fails ab initio.' Petitioner's Second Memorandum, pp. 11-12. Further, Sobell contends, this lack of judicial power is not merely lack of jurisdiction over the person to the accused who has thus been wrongfully seized, it is total lack of judicial power over the subject matter of the offense.

 This final argument defining the type of jurisdictional defect is vitally necessary to petitioner here, as concededly, any question as to the trial court's jurisdiction over his person was voluntarily waived by him, and the court's jurisdiction over his person has been specifically upheld by the Court of Appeals. Indeed, defense counsel stated on oral argument of this motion: 'I am not here urging the matter of personal jurisdiction of the defendant. * * * That was litigated * * * and Judge Frank said they raised that too late and * * * it had been waived. Your Honor, if we were dealing with the matter of personal jurisdiction, we are out of court.' (Transcript of Oral Argument, p. 34 -- hereafter T. 34.)

 Accepting defense counsel's assertion, I find that this motion is raising the precise issue of personal jurisdiction, and that on that score alone, to paraphrase, Sobell is 'out of court'. Further, even assuming the jurisdictional question could be reached, I find that there was no violation of any treaty, that Sobell has no standing to raise this question and that the court properly had jurisdiction of his person.

 A. This Is A Question Of Personal Jurisdiction

 The entire question of the effect of this alleged kidnapping upon the legality of Sobell's trial was first raised by the defense by a motion in arrest of judgment made five days after the trial, at which time they submitted an affidavit setting forth the circumstances of Sobell's seizure. The motion was denied on the ground that if these facts existed, they were admittedly within the knowledge of defendant and his attorneys before and during the trial, and that the defense had made a deliberate decision not to call them to the court's attention. (R.1590-1595.)

 On appeal to the Court of Appeals, the question of the trial court's jurisdiction over Sobell was specifically argued in defendant's brief which cited United States v. Rauscher, 1886, 119 U.S. 407, 7 S. Ct. 234, 30 L. Ed. 425, and Cook v. United States, 1933, 288 U.S. 102, 53 S. Ct. 305, 77 L. Ed. 641, the two cases chiefly relied on in the present motion. Their contentions were rejected. Speaking through Judge Frank, the Court stated:

 'Sobell waived his right to challenge personal jurisdiction in this trial. * * * He made no move to bring to light the facts of his alleged illegal abduction. He preferred to take his chances on the verdict, withholding his trump card until the trial was over. The Federal Rules of Criminal Procedure (18 U.S.C.A.) allow no such tactic.' United States v. Rosenberg, 2 Cir., 195 F.2d 583, 603, certiorari denied 344 ...

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