Before LUMBARD, Chief Judge, and SWAN and WATERMAN, Circuit Judges.
The indictment alleges that the conspiracies began in January 1940 and continued to the return of the indictment on November 29, 1960. Eighteen co-conspirators were listed but were not made defendants. The trial began June 19, 1961, was concluded July 13, and sentence was imposed on August 7 - ten years on count 1 and life imprisonment on count 2. Defendant duly appealed and is free on $100,000 bail.
On October 9, 1961 defendant moved under Rule 33, F.R.Crim.P., 18 U.S.C.A., for a new trial on newly discovered evidence. After hearing witnesses Judge Herlands wrote a lengthy opinion denying the motion on November 3. Defendant has also appealed from this order.
The appellant presents four points: (1) insufficiency of the evidence to sustain the jury's verdict; (2) count 1 was barred by the statute of limitations; (3) errors in admitting prejudicial testimony; and (4) error in denying the motion for a new trial.
(1) Alleged insufficiency of the evidence.
Defendant did not testify nor did he call any witness. He was represented by two experienced trial lawyers. Their strategy was to endeavor by cross-examination of witnesses for the prosecution to prove that the conspiracy, if any, in which defendant took part did not involve getting information about the national defense of the United States, but about the Trotskyite wing of the Party Mensheviks, and Germans, living in the United States. Counsel seem to have conceded that defendant was party to a conspiracy to obtain information for Russia respecting matters other than national defense. At least there was no contradiction of testimony that he was paid $100 or $150 per month by co-conspirators for reporting to them during years prior to the time the conspiracy is claimed to have ended in 1945.
The first witness for the prosecution was defendant's brother Jack Soble. He was examined and cross-examined at great length. He testified to meeting Beria of the GPU (Russian Secret Service) in 1940 and to being told by Beria that he wanted him and his brother, Robert, the defendant, "to go abroad to work for us to gather any information of any value to the Soviet Union." [Italics added.] The quoted purpose certainly cannot reasonably be construed to have excluded the gathering of national defense information. Beria did not say how they would go or where but offered to let their parents and relatives go with them because the parents are "anti-communists" and will be a "good cover." Of course Jack's conversation with Beria did not commit Robert to the conspiracy, but shortly thereafter Jack visited his brother in Lithuania and learned from him that agents of the GPU had made him a similar proposition. Jack also testified to their leaving Russia via Vladivostok, getting to the United States via Japan and meeting in New York City various "contacts" to whom they made reports. According to Jack's testimony Robert's contact "was Zubilin's wife Helen. He told me this many times on several occasions."*fn1 He further testified that he had many conversations with Robert "about my work in the Trotskyite field, and his work in the O.S.S."
Mrs. Beker, also listed as a co-conspirator, testified that the defendant caused her to meet Dr. Hirschfeld, head of an O.S.S. section compiling information on European politicians, and told her Hirschfeld worked for the O.S.S.; that she received written reports from him in 1943, 1944 and the early months of 1945 which she passed on to the defendant; that Hirschfeld reported on what some of his co-workers in O.S.S. were doing and the last two or three reports referred to an important military weapon being developed in the far west. Thus there was testimony that the conspirators infiltrated the O.S.S. and secured information from persons working there. That information obtained from O.S.S. employees was classified as secret was demonstrated by the testimony of Mr. Doering, general counsel of O.S.S.
The fact that the source of the information was classified as secret distinguishes this case from United States v. Heine, 2 Cir., 151 F.2d 813, cert. den. 328 U.S. 833, 66 S. Ct. 975, 90 L. Ed. 1608, upon which appellant places reliance. Moreover, the information as to how the O.S.S. carried on its work and who did what was in itself a matter of national defense, as was also the information with respect to the development of an important military weapon in the far west, as to which Mrs. Beker testified. Her testimony, if credited, was alone enough to justify the verdict. Gorin v. United States, 312 U.S. 19, 61 S. Ct. 429, 85 L. Ed. 488, affirming 9 Cir., 111 F.2d 712 is a leading case on the Espionage Act. There, affirming a conviction for transmitting Naval Intelligence reports on Japanese agents in the United States, the Court said, 312 U.S. at page 32, 61 S. Ct. at page 436:
"It is not the function of the court, where reasonable men may differ, to determine whether the acts do or do not come within the ambit of the statute. The question of the connection of the information with national defense is a question of fact to be determined by the jury as negligence upon undisputed facts is determined."*fn2
We are satisfied that appellant's point (1) must be overruled.
(2) The statute of limitations.
The appellant contends that prosecution of the conspiracy charged in count 1 is barred by the statute of limitations and that submission to the jury of the barred count requires reversal of the conviction under count 2. Whether or not prosecution under count 1 was barred presents a serious question, but we see no necessity for determining it. Concededly there was no statute of limitations applicable to count 2, and on this count defendant was sentenced to life imprisonment. The sentence imposed on count 1 did not increase defendant's term of imprisonment. Hence, if the count 2 conviction is sustainable, we need not consider the error alleged as vitiating count 1. Barenblatt v. United States, 360 U.S. 109, 115, 79 S. Ct. 1081, 3 L. Ed. 2d 1115; United States v. Bronson, 2 Cir., 145 F.2d 939, 944. And the same rule has been applied in prosecutions for espionage. Abrams v. United ...