Submitted to the In banc Court May 26, 1965.
Lumbard, Chief Judge, and Waterman, Moore, Friendly, Smith, Kaufman, Hays and Anderson, Circuit Judges. Friendly, Circuit Judge (concurring). Waterman, Circuit Judge (dissenting). Smith, Circuit Judge (dissenting). Anderson, Circuit Judge (dissenting).
On this appeal, which raises multiple challenges to the conviction of Nelson Cornelious Drummond for conspiracy to violate the Federal Espionage Act, we are called upon to decide whether the trial court wrongly admitted into evidence inculpatory statements made by the defendant during periods prior to and following his arraignment in which he was allegedly denied the assistance of counsel and thus deprived of rights secured to him under the Sixth Amendment to the Constitution. Because this appeal raises vital questions of judicial administration of the criminal law requiring interpretation of Escobedo v. State of Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), and Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), we directed consideration in banc.
Count 1 of the indictment charged Drummond with conspiracy to deliver national defense documents to four named agents of the Soviet Union in violation of the Federal Espionage Act, 18 U.S.C. § 794(c). Count 2 charged an attempt to deliver such documents to the agents in violation of 18 U.S.C. § 794(a). Drummond's first trial ended in a mistrial when the jury was unable to reach a verdict on either count. In his second trial, the jury found Drummond guilty of the conspiracy charge of Count 1 but was unable to reach a verdict on Count 2. District Judge Murphy sentenced Drummond to life imprisonment.
Subsequent to his conviction, Drummond moved for a new trial under Fed.R.Crim.P. 33 on grounds that newly discovered evidence showed his arrest to have been in violation of the Fourth Amendment to the Constitution, and that items seized on arrest and inculpatory statements made after arrest were therefore "tainted" and inadmissible at trial. Judge Murphy denied the motion.
In addition to the asserted denial of counsel, Drummond's appeal from his conviction raises two other grounds for reversal: (1) the jury was erroneously charged with respect to the question of whether the conspiracy pertained to documents "relating to national defense"; and (2) the trial court failed to charge the jury that the requirements for a finding of treason, as set forth in Article III, Section 3 of the United States Constitution, must be met in a case of this kind, and the evidence failed to meet such requirements.
Drummond's appeal from the judgment of conviction and the District Court's denial of the motion for a new trial are consolidated here. We have examined the record in this espionage case resulting in a life sentence with extraordinary care. We affirm Drummond's conviction and the District Court's denial of the motion for a new trial. We conclude that the inculpatory statements in this case were properly received in evidence. We find no merit in Drummond's other challenges to the trial court's evidentiary ruling and charge.
The record describes a tawdry scheme of espionage for hire. Over a period of five years, from 1957 to 1962, while on duty with the U.S. Navy in Europe and the continental United States, Drummond passed classified military materials to Soviet agents in return for payments totaling $24,000. The scenario is replete with the cliches of international intrigue: furtive meetings, night chases, secret surveillance, spy props.*fn1
The evidence crucial to Drummond's conviction was largely derived from his own admissions following arrest and preceding trial. In late 1957, Drummond was approached by a Soviet agent while on duty with the United States Navy in London. At the time Drummond was heavily in debt, and the agent exploited his knowledge of Drummond's financial difficulties to enlist him as a spy for the Soviet Union. Drummond first procured a Navy identification card for the Soviet agent and was paid 250 pounds. Once committed, Drummond regularly supplied various Soviet contacts with classified documents from the files of the Eastern Atlantic and Mediterranean Headquarters of the United States Navy in London. On one occasion, plagued by debt, he actively sought out his contacts at the U.S.S.R. Embassy and was severely reprimanded by a Soviet agent.
In the spring of 1958, Drummond was investigated by the office of U.S. Naval Intelligence, but, forewarned by his Russian contacts, he halted his espionage activities temporarily and escaped detection. Shortly thereafter he was reassigned to the United States. Establishing contact with the United States branch of the Soviet espionage network, Drummond continued passing classified documents for the next four years. His intermediary was one Esther Katz, whom he telephoned when he wished to contact the Soviet agents. He met regularly at prearranged rendezvous points in the metropolitan New York area with three Soviet agents attached to the Soviet Mission to the United Nations, Mikhail Stepanovich Savelev, Vadim Vladimirovich Sorokin, and Evgeni Mikhailovich Prokhorov (each known to Drummond only as "Mike"), who supplied him with special tools of the espionage trade: hollowed-out magnets, miniature cameras, flash paper, invisible writing materials.
During this period Drummond regullary removed and sold to the Soviets documents from the classified files of the U.S.S. Caperton, under repair in the Boston Navy Yard, and, after May 1960, from Mobile Electronics Technical Unit Number 8, located at Newport, Rhode Island, to which he was assigned as a Yeoman First Class, processing and filing classified documents including those designated "COSMIC Top Secret."*fn2
Living beyond his legitimate earnings, Drummond received payments averaging $500 for each delivery of classified documents, which he used to repay heavy personal debts. In November 1961, on demand, he received a special payment of $6,000 from his Soviet contact with which he purchased a bar and grill in Newport, Rhode Island. He received a second special payment of $4,000 in August 1962. On several occasions, Drummond openly sought out his Russian contacts at their United Nations offices. As in London, he was reproached for his recklessness.
The F.B.I. began surveillance of Drummond on August 13, 1962. That day, an F.B.I. agent observed him driving toward New York City on the New York Thruway and later entering an apartment building on Central Park West. On September 7 and 8, Drummond was observed travelling between the Newport Naval Base and New York City. On September 8, an F.B.I. agent photographed one of the Soviet agents in the same apartment building. Between September 6 and 9, F.B.I. agents searched Drummond's office at Newport and found four classified documents missing. On September 9, the agents searched Drummond's car and discovered eleven classified documents, including the missing four. Based on these observations, the F.B.I. obtained an arrest warrant charging Drummond with conspiracy to commit espionage.
On September 28, 1962, after close of the workday, two F.B.I. agents monitoring Drummond's office through a closedcircuit television device and one agent hiding behind a bookcase in the office observed Drummond removing papers from a classified file and placing them in his carrying case. He then entered his car and drove on the Connecticut Turnpike and Boston Post Road to a diner in Larchmont, New York, where he was met by Soviet agent Prokhorov and another member of the Soviet Mission to the United Nations. After observing the three men converse for a few minutes, F.B.I. agents on the scene placed Drummond under arrest. A search of his car incident to the arrest disclosed a loaded pistol and a number of classified national defense documents, including manuals for installation and maintenance of antisubmarine guided missiles, electric bomb fuses, and aircraft bombs. A list identifying the various documents was found on Prokhorov. Experts at trial testified that these documents could be used by hostile governments to develop counter measures which might neutralize American weapons systems or even redirect their courses to destroy United States installations. Information contained in the documents could also be utilized to modify an enemy's electronic equipment so it could operate beyond the range of American detection instruments.
Drummond took the witness stand in his own defense and admitted many of the meetings with the Soviet agents. He acknowledged the delivery of various defense documents to Soviet agents in return for more than $20,000, but insisted that none of the documents contained information known to him to be classified, claiming instead that he believed they had actually been declassified without the change being noted on the papers. He denied that he had removed from Navy files the documents found in his car by the F.B.I. the night of his arrest. He admitted removing other documents from Navy files earlier that evening but contended that he planned to use them to lure Soviet agents into his car in order to murder them.
The guilty verdict on the conspiracy count demonstrates that the jury rejected the incredible concoction that the documents delivered over a period of more than four years were of no value to the Soviets, and that the Russians were duped by Drummond's machinations. Rather, as Judge Murphy stated in denying appellant's motion for a new trial, "more competent proof of a conspiracy would be difficult to imagine."
II. DRUMMOND'S ADMISSIONS
Drummond's main contention on this appeal is that his inculpatory statements made following arrest and preceding trial should not have been admitted into evidence because they were made at a time when he was deprived of the aid of counsel. He argues, therefore, that these admissions were obtained in violation of his Sixth Amendment constitutional right to counsel as interpreted by the Supreme Court in Escobedo v. State of Illinois and Massiah v. United States.
We note first that the testimony concerning these admissions was received in evidence without objection at the time of its introduction. Not until both prosecution and defense had rested their cases did Drummond's counsel move to strike the evidence on the ground the admissions were involuntary, citing the absence of counsel as a factor on the issue of voluntariness. No claim was made that Drummond had been denied a constitutional right of access to counsel at the time of the questioning.
Had Drummond's trial occurred subsequent to the Supreme Court decisions in Massiah and Escobedo, supra, under principles enunciated by this Court in United States v. Indiviglio, 352 F.2d 276 (2d Cir. 1965), appellant would be precluded from raising the issue on appeal.
We are persuaded, however, to consider this issue here (despite the omissions below) because we would be compelled to overturn Drummond's conviction if his critical admissions should have been excluded.
Analysis of the legal problems presented on this appeal is aided by subdivision of these admissions into four categories, related to the time and circumstances in which they were made: (1) the spontaneous admissions made immediately after his arrest during the trip to F.B.I. headquarters; (2) the pre-arraignment statements made at the F.B.I. headquarters during the early morning hours of September 29, 1962; (3) the post-arraignment interviews at the Federal House of Detention on September 29, and in early October; and (4) the post-indictment interviews held with counsel's consent at the Federal Courthouse in December and January.
Spontaneous Admissions Immediately Following Arrest
Immediately after arresting Drummond in the Larchmont Diner parking lot at 11:23 p.m. on September 28, 1962, F.B.I. agents Johnson and Mannion placed him in their car and drove directly to F.B.I. headquarters located at 69th Street and Third Avenue in Manhattan. After they were in the car for approximately ten minutes, Drummond spontaneously volunteered that "the best thing" for him to do would be to "spill the beans." He suggested that the agents proceed quickly to Apartment 12-R at 400 Central Park West, in order to apprehend his Soviet contacts, and handed them a card bearing the phone number of his emergency contact, Esther Katz. No further conversation occurred in the car. He was photographed and fingerprinted at Headquarters at about 12:25 a.m. and turned over to Special Agents Palguta and Gamber, who conducted subsequent interviews.
Agents Palguta and Gamber identified themselves to Drummond, and Palguta advised him, in accordance with established F.B.I. procedure,*fn3 that he did not have to make any statements if he did not wish to do so, that anything he said could be used against him, and that he had a right to counsel. After informing Drummond of the grounds for his arrest, they questioned him about the naval defense documents found in his car, the nature of the documents passed to the Russians, and the identity of his contacts, both Soviet and American. Without hesitation, Drummond recounted the history of his association with the Soviets. Except for minor variances in dates and places of meetings, Drummond's account of his espionage activity for almost five years closely paralled that given in later interviews and at trial. During this interview, however, in contrast to his testimony at trial, Drummond frankly admitted that he furnished the Russians with classified documents.
At no time during his first trial did Drummond claim that he requested and was denied the assistance of counsel during this interrogation. At his second trial, however, Drummond claimed that during this initial interview with the F.B.I. agents he asked for permission "to phone counsel and my wife or my wife and they told me I couldn't do it." "They told me", he continued, "that when I got to the courthouse at Foley Square, I would be granted the opportunity to use the phone and not to worry." Agent Palguta's detailed log of the interview, which was marked for identification and given to defense counsel at the trial, but not introduced in evidence, revealed that it was not until 3:30 a.m., five minutes before the interview at headquarters terminated, that Drummond inquired if he could call his wife. "He was told," according to Palguta's notes, "he could not call his wife at this time since it was necessary to proceed to U.S. Commissioner's office for arraignment."*fn4
Drummond was arraigned before a United States Commissioner in the United States Courthouse, Foley Square, at 4:20 a.m., September 29. Pursuant to Fed.R.Crim.P. 5(b), he was (a) formally advised of the complaint against him, (b) told that he was not required to make any statement, (c) advised that any statement made by him might be used against him, and (d) advised that he had a right to counsel and a preliminary examination. Bail was fixed at $100,000, further proceedings were postponed, and, in default of bail, Drummond was taken to the Federal House of Detention.
First Post-Arraignment Interview
During the afternoon of September 29, special agents Palguta and Gamber received a handwritten note from Drummond stating, "I remember her name. Please see me. Drummond. Also bring map of northern New York State. I think I can locate the camp." The note related to Esther Katz and to an incident previously disclosed to F.B.I. agents in which Drummond had sought to contact her. When the agents arrived at West Street Detention Headquarters at 7:00 p.m., Palguta promptly asked, "Drummond, do you have an attorney?" Drummond said no, adding that a lieutenant at the House of Detention had refused to let him use the telephone that morning and had told him "he would have to go through the proper authorities to put in a chit before he could use [it]." When questioned about this incident by Drummond's counsel at trial, Palguta stated that he did not interpret Drummond's remarks to mean that he had been refused permission to contact an attorney.*fn5 Palguta then advised Drummond of his right to remain silent and to consult counsel.*fn6 At this time the agents handed appellant a statement purporting to incorporate in writing the information given by him the night before. Drummond was asked to examine the statement, make any corrections he desired, and to adopt it if it was correct. He read and edited the statement from 7:15 to 7:38, then signed this statement and another statement reciting that he had initiated the request to be interviewed by the Bureau's special agents at the Federal House of Detention.
The discussion at this second interview centered on Drummond's Russian and American contacts, places they met, and methods used for establishing contact among them. There was no evidence that at any time during this interview, or in any earlier or later interview, Drummond objected or showed any resentment at being questioned without the assistance of a lawyer. Indeed, the record indicates he was told by Palguta at the outset of the interview, "Drummond, any time you don't want to be interviewed you just say so and I will not come back here."
Subsequent Post-Arraignment Interviews
Similar interviews, originated at Drummond's request and lasting from one to four hours, were conducted at the Federal House of Detention on October 2, 3, and 4. The agents commenced each session by advising Drummond of his right to be silent and to consult a lawyer, and prior to each interview he was given an opportunity to communicate by telephone with his wife. Indeed, on October 2, it was Drummond's wife who called Palguta stating that Drummond wanted to see him. At no time did he resist answering questions or signing statements without the aid of a lawyer. He willingly drew sketches of the espionage devices he had used, identified photographs of his Soviet contacts (correcting an error he had made when he was first shown the pictures at F.B.I. headquarters), and generally assisted the agents to the fullest extent. Drummond's testimony at trial unequivocally established that he "started cooperating with the F.B.I. agents from the time [he] was arrested." He utilized the intervals between interviews to recall additional details which he then volunteered to the agents, relating not only to his own espionage activities over many years, but also to activity of other Soviet agents currently operating in this country.
The indictment against Drummond was returned on October 5. Three days later, represented by retained counsel, he was arraigned in the United States District Court, Thereafter he was represented by retained or court-appointed counsel.
Approximately two months after the indictment, at the request of the Government, Drummond and his counsel, William Esbitt, a former Assistant U.S. Attorney, consented to further interviews. These were held at the Federal Court-house on December 3, 4, and 11, 1962 and January 21, 1963. During this series of interviews Drummond was able to give the investigating agents more precise information concerning his relationship with Esther Katz and the dates and places of his exchanges with the Russian agents. At trial, Drummond stated that he was never threatened in any way during the interviews; his participation was motivated by a desire to make amends to the Government he had betrayed. "Anything you think I can do," he said at the outset of the December 3 interview, "tell me and I will do it."
The challenge made to the admissibility of information obtained in these interviews is essentially not one of absence of counsel but rather that the evidence was the tainted consequence of the allegedly inadmissible admissions ...