The opinion of the court was delivered by: WEINFELD
WEINFELD, District Judge.
Petitioner, Morton Sobell, moves pursuant to 28 U.S.C. section 2255, to vacate and set aside a judgment of conviction entered upon a jury verdict returned in March 1951, under which he is now serving a thirty-year term of imprisonment.
Petitioner was tried and convicted together with Julius and Ethel Rosenberg upon an indictment which charged that they, together with David Greenglass, Anatoli A. Yakovlev and others to the grand jury unknown, had conspired from June 1944 to June 1950, in violation of the Espionage Age of 1917,
to communicate to the Soviet Union documents, writings, sketches, notes and information relating to the national defense of the United States with the intent that they be used to the advantage of the Soviet Union. Named as conspirators but not as defendants were Ruth Greenglass, the wife of David Greenglass, and Harry Gold. The indictment was severed as to Greenglass and also as to Yakovlev, an official attached to the Soviet Embassy, who had left the United States prior to the return of the indictment.
Greenglass pleaded guilty before the start of the trial. The principal testimony as to the conspiracy came from Greenglass, his wife and Harry Gold. After trial Greenglass was sentenced to a term of fifteen years. Gold, at the time of trial, was serving a thirty-year sentence imposed upon his plea of guilty in the District Court of Pennsylvania to an indictment charging him and Dr. Klaus Fuchs with conspiracy to violate the Espionage Act. Gold's testimony involved Fuchs, a British scientist, in the conspiracy charged in the instant indictment. The Rosenbergs took the witness stand. The petitioner did not testify.
The evidence of petitioner's participation in the conspiracy came principally from Max Elitcher, a college classmate of both petitioner and Julius Rosenberg. Elitcher, who within the indictment period worked in the Navy Department and later in national defense plants engaged in classified projects, testified in substance that petitioner and Rosenberg had attempted to secure from him classified antiaircraft and fire control information for the Soviet Union, and had urged him not to leave his Navy Department job because he could be valuable there in espionage. Elitcher also testified that Sobell had in his possession material contained in a 35 millimeter film can described by Sobell as valuable information, and that he accompanied Sobell on the occasion of its delivery to Rosenberg. In addition, to establish consciousness of guilt, the government introduced evidence that petitioner fled to Mexico with intent not to return, and that the flight followed an escape pattern urged by Rosenberg upon the Greenglasses. The jury was instructed that if they disbelieved Elitcher they were to acquit the petitioner.
The petitioner's present charges are directed not against Elitcher, but the testimony of Harry Gold, David Greenglass and John Derry, another government witness, and exhibits in evidence - in broadest terms that the "government * * * knowingly created, contrived and used false, perjurious testimony and evidence and intentionally and wilfully induced and allowed government witnesses to give false, misleading and deceptive testimony in order to obtain the conviction of petitioner and his co-defendants." The "government," according to petitioner, is all-encompassing and includes "the prosecutive, investigative and other agencies of the United States and their agents or employees, as well as all those acting with its knowledge and at its behest, involved in the investigation and prosecution of this case."
Petitioner previously attacked his conviction upon direct appeal
and in five separate collateral proceedings, either under the Federal Rules of Criminal Procedure or section 2255 of Title 28, all of which failed.
In the consideration of the charges here made the court has read the entire lengthy trial transcript, including the testimony of witnesses who are not impugned; also the various post-trial petitions by petitioner and those of his codefendants in which he joined, and the trial and appellate records of those proceedings.
The petitioner contends that in none of the prior proceedings were the issues here presented raised, and that some of the facts now relied on were not available until after 1963 and others not until July 1966. The government, to the contrary, asserts that the present proceeding is a repetition of charges previously heard and determined on the merits and petitioner's application should be denied under section 2255, which provides that the "court shall not be required to entertain a second or successive motion for similar relief."
Finally, the government urges that the records and files of this court not only show petitioner is not entitled to relief, but that his application is a flagrant abuse of section 2255 because it is totally groundless and because of failure to allege previously facts known or which with due diligence should have been known to him at the time of trial and on his various postconviction applications.
Whatever the merits of these respective contentions, petitioner's charges must be considered.
Cutting through the highly repetitious, voluminous, argumentative and conclusory allegations in this present application, the nub of petitioner's claim that he was denied a fundamentally fair trial is twofold: (1) that the prosecution by various means created in the minds of the court, jury and defense the false impression that Exhibit 8, a sketch, and testimony with respect thereto contained the secret and principle of the atomic bomb dropped at Nagasaki; (2) that the government knowingly permitted Harry Gold and David Greenglass to give perjurious testimony as to meetings between them on June 3, 1945 at Albuquerque, New Mexico, and corroborated this perjury through a forged hotel registration card, Exhibit 16. We consider each claim separately.
A preliminary observation is in order. The constant repetition through the petition's 100 paragraphs of allegations of fraud, perjury, concealment of evidence and like epithets, and the "upon information and belief" charges make it desirable to state what ordinarily would be assumed - that reiteration of unsupported charges and conclusory allegations is no substitute for factual allegations.
Exhibits 2, 6, 7 and 8, which represent the atomic information Greenglass testified he turned over for transmission to the Soviet Union, were the subject of petitioner's first section 2255 motion brought on in November 1952. In order properly to evaluate the current charges centering about Exhibit 8, the trial testimony with respect to and the former attack upon all the exhibits must be considered.
Greenglass was a high school graduate and had for limited periods attended Brooklyn Polytechnic and Pratt Institutes. After his induction into the Army, he was stationed, commencing in August 1944, at the Los Alamos project, New Mexico, where atomic bomb experimentation was being carried on and the most stringent security regulations were in effect. His particular experience was as a machinist and he was assigned to a machine shop in a group concerned with high explosives, headed by Dr. George B. Kistiakowski, and subsequently became foreman of the shop. His work consisted of machining various apparatus required in connection with experimentation on atomic energy, including a flat type lens mold and other molds then the subject of experimentation by Dr. Walter S. Koski.
Greenglass testified that while stationed at Los Alamos he became a member of the conspiracy in November 1944 at the instigation of the Rosenbergs, and that his activities extended to obtaining and transmitting classified information to them concerning experiments, locations, personnel, security measures and the nature of the camouflage at the project. Exhibit 2 was a replica of a sketch of an explosive lens mold used in atomic bomb experiments at Los Alamos which he had prepared and delivered to the Rosenbergs, together with descriptive material and a full report of the experiments, as well as the names of scientists working there, in January 1945 while in New York City on a furlough.
Greenglass also testified that Exhibits 6 and 7 were schematic replicas of sketches of lens molds, one shown in an experimental setup which, together with a report on atomic experimentation, he delivered to Harry Gold on June 3, 1945 at Albuquerque, New Mexico. These exhibits he said were prepared from memory, Exhibits 2 and 7 during the trial, and Exhibit 6 at the time of his apprehension in June 1950.
After Greenglass had testified as to these exhibits he was excused and Dr. Koski was called. Dr. Koski testified that he was a professor of physical chemistry, a consultant in nuclear physics, and an engineer at the Los Alamos laboratory from 1944 to 1947, associated with implosion research connected with the atomic bomb; that all work at Los Alamos was of a highly classified and secret nature; that Exhibits 2 and 6 were substantially accurate replicas of sketches he had made and submitted to the shop where Greenglass worked; that Greenglass had access to the information shown on those exhibits; that Exhibit 7 was a rough sketch of an experimental setup for studying cylindrical implosion; that the sketches and information which Greenglass testified he had given in connection therewith were reasonably accurate descriptions of the experiments and their details as he, Dr. Koski, knew them at the time.
Dr. Koski also testified that knowledge of his experiments would have been to the advantage of a foreign nation; that his experiments were in a new and original field. He further testified that one familiar with the field could ascertain from Exhibits 2, 6 and 7 the principle and idea of the lenses and the nature and the object of the activities then under way at Los Alamos in relation to the production of the atomic bomb. Dr. Koski was not cross-examined by petitioner's counsel, although the Rosenbergs' counsel did inquire.
Following Dr. Koski's testimony Greenglass resumed the witness stand. Preliminarily he testified that in January 1945 Rosenberg had described a bomb (which he subsequently learned was the type dropped on Hiroshima) so that he, Greenglass, would know what to be on the lookout for; that thereafter he met persons at Los Alamos who worked in different units of the project, others who talked of the bombs, how they operate, and that he himself worked directly on certain apparatus that went into an atomic bomb. Greenglass further testified that in September 1945, while on furlough in New York City, he told Rosenberg he thought he had "a pretty good description of the atom bomb,"
whereupon, at Rosenberg's request, he drew and delivered to the Rosenbergs a sketch of a cross-section of an atomic bomb and about twelve pages of descriptive material. Exhibit 8, he testified, was a replica of that sketch. When the government offered it in evidence, counsel for petitioner's codefendants, the Rosenbergs, immediately moved to impound the exhibit; petitioner's counsel acquiesced in this request, and subsequently, after the exhibit was shown to the jury, it was impounded. The prosecution then asked Greenglass to state what was contained in the written material which accompanied the sketch. Before Greenglass could answer, the Rosenbergs' counsel stated he was prepared to stipulate that the sketch and twelve-page description were secret, confidential and concerned the national defense; however, Sobell's counsel refused. Thereupon, with the consent of all counsel, Greenglass' testimony with respect to Exhibit 8 and the descriptive material, which relates to the component parts, mechanism and operation of an atomic bomb, was received in camera, although the press was permitted to remain,
as were representatives of the Atomic Energy Commission.
John A. Derry, an electrical engineer, also testified as to Exhibit 8. Derry was assigned to the Manhattan District Project from December 1942 to August 1946 and was liason officer between General Groves, Commanding General of the entire Manhattan Project, and the Los Alamos laboratory. His duties required him to keep General Groves informed of the technical progress of the research, development and production phases of the atomic bomb project at Los Alamos. He testified that all activity and work at the project were highly classified and top secret; that he was informed of many of the experiments incidental to the development of the atomic bomb; that he knew what went into parts of it and understood the entire subject matter; that in 1945, on many occasions, he saw the actual bomb that was being developed. Derry testified that Exhibit 8 and the Greenglass descriptive material related to the atomic bomb which was in the course of development in 1945; that they demonstrated with substantial accuracy the principle involved in its operation; that a scientist could perceive therefrom to a substantial degree what its actual construction was; that the information contained therein was top secret and related to the national defense of the United States; and that the information and sketch concerned a type of bomb similar to that dropped at Nagasaki.
The First Section 2255 Motion
The petitioner's first section 2255 attack was directed, among other matters, to Exhibits 2, 6, 7 and 8 and the testimony of Greenglass, Dr. Koski and Derry with respect thereto.
Three separate claims were made:
(1) Concealment of Coached Evidence
Petitioner alleged that Greenglass had perjured himself to the knowledge of the prosecution when he swore he had prepared these exhibits from memory and had not been aided in their preparation by a scientifically trained person. No factual evidence was offered to support this charge. What was relied upon was the opinion of scientists, set forth in affidavits, that it was "improbable," "impossible" or "inconceivable" that Greenglass with his limited technical education could have prepared the sketches represented by Exhibit 8,
as well as 2, 6 and 7,
and the descriptive material showing the workings, mechanism and component parts of the Nagasaki type bomb without outside coaching or the use of reference books.
(2) Claim of Lack of Secrecy
Another claim then advanced was that the atomic information transmitted to the Soviet Union was not secret.
Koski's testimony that the information contained in Exhibits 2, 6 and 7 was secret was challenged by a scientist who contended that this information was widely known and published throughout the entire world.
The petitioner branded Dr. Koski's testimony as false and argued that the classification by the government of the material was capricious and arbitrary. Although petitioner's scientist did not refer expressly to Exhibit 8 as he did to 2, 6 and 7, it is abundantly clear from his opinion,
and his counsel's oral argument
that the attack on the secrecy extended to all the atomic information. With respect to this claim of nonsecrecy, petitioner alleged that "the detail of the atom bomb is trivial technically and most inconsequential as a secret,"
and in conclusion urged:
"5) The 'secret' which David Greenglass allegedly transmitted to the U.S.S.R. was no secret at all to any explosive expert.
"6) The ability of any country to produce an atomic bomb rests upon its ability to mobilize the hundreds of thousands of scientists, technicians and laborers and its ability to make available the vast industrial plant required. It does not rest on stealing the 'secrets' of the United States."
(3) Claim of Lack of Value to the Soviet Union