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U.S. V. Melekh, 190 F.Supp. 67 (S.D.N.Y. 1960) (USSR espionagecase, diplomatic immuni

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  • U.S. V. Melekh, 190 F.Supp. 67 (S.D.N.Y. 1960) (USSR espionagecase, diplomatic immuni

    UNITED STATES of America v. Igor Y. MELEKH, also known as Peter Stephens and
    also known as 'Gipsy,' and Willie Hirsch, also known as John Gilmore,
    Defendants

    UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK

    190 F. Supp. 67

    November 28, 1960

    COUNSEL:  [**1] 

    S. Hazard Gillespie, Jr., U.S. Atty., for Southern Dist. of New York, New
    York City, for the United States. Silvio J. Mollo, Robert B. Fiske, Jr.,
    John A. Guzzetta, New York City, of counsel.
    William W. Kleinman, Brooklyn, N.Y., for defendant Melekh.
    David M. Freedman, New York City, for defendant Hirsch.

    OPINIONBY: HERLANDS
    OPINION:  [*70] 

    Nature of the Proceedings

    There proceedings seek the removal of the defendants Igor Y. Melekh and
    Willie Hirsch to the United States District Court for the Northern District
    of Illinois, Eastern Division, there to answer a three-count indictment (No.
    60 Cr. 529) filed against them on October 27, 1960.

    The Indictment Against the Defendants

    The first count of the indictment, hereinafter referred to as 'the Illinois
    indictment,' charges a conspiracy to violate Title 18 U.S.C.A. § 793. Part
    of the alleged conspiracy was to obtain information respecting the national
    defense of the United States of America by receiving and obtaining
    documents, sketches, photographs, maps and information concerning various
    places and military installations connected with the national defense, for
    delivery to the Union of Soviet Socialist [**2]  Republics, with the
    knowledge and intent that those materials would be used to the advantage of
    that foreign nation.

    It was a further part of the alleged conspiracy, according to the
    indictment, that the defendants would induce a United States citizen to
    obtain information relating to the national defense of this country, with
    the intent and reason to believe that the information would be used to the
    advantage of the Union of Soviet Socialist Republics; that the defendant
    Melekh would employ, supervise, and pay individuals for the purpose of so
    obtaining, delivering and transmitting such information; and that the
    defendant Melekh would devise a clandestine method of arranging meetings
    with individuals to whom he had given assignments to collect information
    relating to the national defense of this country. Thirteen overt acts in
    furtherance of the charged conspiracy are then alleged. Included in the
    alleged overt acts are cash money payments by the defendant Melekh to an
    individual on three occasions and also the acceptance by Melekh of a map and
    photographs.

    The second count of the indictment charges a conspiracy to violate Title 18
    U.S.C.A. § 951. Part [**3]  of this alleged conspiracy was to induce and
    procure a United States citizen to act within the United States as an agent
    of the Government of the Union of Soviet Socialist Republics without prior
    notification to the Secretary of State and without the said United States
    citizen being a diplomatic or consular official or attache. It was a further
    part of the conspiracy, as pleaded, that said United States citizen would be
    paid for so acting as an agent of the Union of Soviet Socialist Republics
    for the purpose of obtaining and transmitting information and material for
    the use of that foreign nation. The overt acts in furtherance of this
    alleged conspiracy are the same as those set forth under the first count.
    The third count charges a substantive violation of section 951, Title 18
    U.S.C.A., by the defendant Hirsch, aided and abetted by Melekh.
    Proceedings Before the Commissioner

    After the indictment was filed on October 27, 1960, and on the same day, the
    defendants were duly arrested in the Southern District of New York.
    On November 3, 1960, Hon. Earle N. Bishopp, United States Commissioner for
    the Southern District of New York, held a hearing, at which the defendants
    were represented [**4]  by counsel of their own choice. Upon the testimony
    and exhibits presented before him, the Commissioner found that proof of
    identity had been  [*71]  established and that the defendants Melekh and
    Hirsch are the persons named in the Illinois indictment.

    The evidence before the Commissioner consisted of a certified copy of the
    Illinois indictment; the testimony of Richard H. Nachtsheim, a special
    F.B.I. agent; and photographs of the defendants (which photographs had
    previously been marked as grand jury exhibits before the grand jury that
    returned the indictment).

    On November 3, 1960, the Commissioner recommended 'the issuance of a warrant
    of removal to the Northern District of Illinois, Eastern Division for each
    defendant.'

    The certified copy of the indictment, the said two photographs, a transcript
    of the Commissioner's findings, and the Commissioner's final commitment and
    recommendation have been submitted to this Court.

    Bail, duly fixed in the amount of $ 50,000 for each defendant, was furnished
    by the defendant Melekh as to himself on November 4, 1960. Hirsch has been
    committed, in default of bail.

    I.

    The defendants do not dispute the fact, independently established by [**5] 
    the evidence, that they are the persons named as defendants in the Illinois
    indictment.

    However, the defendant Melekh, interposing the claim of diplomatic immunity,
    resists the removal proceedings. According to the defense, this claim of
    diplomatic immunity has a double thrust: first, the Melekh's immunity
    renders the Illinois indictment void; second, that Melekh's immunity
    deprives this Court of jurisdiction, in the sense of power, to order his
    removal.

    The Government's position is that, regardless of the question of the merits
    of Melekh's immunity claim, this Court must order the removal to the
    Northern District of Illinois because Rule 40 of the Federal Rules of
    Criminal Procedure, 18 U.S.C.A., mandates a removal once it is
    established --  as it has been established in the case at bar --  that an
    indictment has been returned against the defendants, and that they have been
    identified as the indicted defendants. The Government relies on the
    proposition that Rule 40 (effective March 21, 1946) was promulgated in order
    to effect 'drastic and distinct innovations' designed to expedite and
    simplify removal proceedings; and that this Court, in the case at bar, has
    no alternative [**6]  but to order the removal. See Holtzoff, Reform of
    Federal Criminal Procedure, 1944, 3 F.R.D. 445, 451; Holtzoff, Removal of
    Defendants in Federal Criminal Procedure, 1945, 4 F.R.D. 455, 468; Singleton
    v. Botkin, D.C.D.C.1946, 5 F.R.D. 173; Hemans v. Matthews, D.C.D.C.1946, 6
    F.R.D. 3; United States v. Bessie, D.C.D.Cal.1947, 75 F.Supp. 95, 96-97;
    United States v. Binion, D.C.D.Nev.1952, 13 F.R.D. 238, 240, appeal
    dismissed 9 Cir., 1953, 201 F.2d 498, certiorari denied 1953, 345 U.S. 935,
    73 S.Ct. 796, 97 L.Ed. 1363; United States v. Provoo, D.C.S.D.N.Y.1954, 16
    F.R.D. 341.

    The Advisory Committee Notes To The Federal Rules of Criminal Procedure For
    the United States District Courts (for text, see 4 Barron, Federal Practice
    and Procedure (Rules ed. 1951) 843, 868) state, in part, with reference to
    Rule 40:

    '1. This rule modifies and revamps existing procedure. * * *

    'The scope of a removal hearing, the issues to be considered, and other
    similar matters are governed by judicial decisions (collecting cases).

    '2. The purpose of removal proceedings is to accord [**7]  safeguards to a
    defendant against an improvident removal to a distant point for trial. On
    the other hand, experience has shown that removal proceedings have at times
    been used by defendants for dilatory purposes and in attempting to frustrate
    prosecution by preventing of postponing transportation even as between
    places a few miles apart. The object of the rule is adequately to meet each
    of these two situations.'

     [*72]  Hon. Alexander Holtzoff (now United States District Judge for the
    District of Columbia), who served as secretary to the Advisory Committee
    (see F.R.C.P., 18 U.S.C.A. p. xv), makes the following comment (4 Barron,
    Federal Practice and Procedure (Rules ed. 1951), preface, p. xi):

    'Proceedings for the removal of a defendant from one district to another for
    trial had long been a weak spot in Federal criminal procedure. The
    technicalities with which they had become encrusted through the years, at
    times enabled astute and resourceful counsel to resist their clients'
    removal across district lines for several years. This is no longer
    possible.'

    Rule 40, entitled 'Commitment to Another District; Removal,' pertinently
    provides:

    '(3) Hearing; Warrant of Removal or Discharge.  [**8]  The defendant shall
    not be called upon to plead. If the defendant waives hearing, the judge
    shall issue a warrant of removal to the district where the prosecution is
    pending. If the defendant does not waive hearing, the commissioner or judge
    shall hear the evidence. If the commissioner hears the evidence he shall
    report his findings and recommendations to the judge. At the hearing the
    defendant may cross-examine witnesses against him and may introduce evidence
    in his own behalf. If it appears from the commissioner's report or from the
    evidence adduced before the judge that sufficient ground has been shown for
    ordering the removal of the defendant, the judge shall issue a warrant of
    removal to the district where the prosecution is pending. Otherwise he shall
    discharge the defendant. If the prosecution is by indictment, a warrant of
    removal shall issue upon production of a certified copy of the indictment
    and upon proof that the defendant is the person named in the indictment. * *
    * If a warrant of removal is issued, the defendant shall be admitted to bail
    for appearance in the district in which the prosecution is pending in
    accordance with Rule 46. After a defendant is held for [**9]  removal or is
    discharged, the papers in the proceeding and any bail taken shall be
    transmitted to the clerk of the district court in which the prosecution is
    pending.'

    Rule 40(3) of the Federal Rules of Criminal Procedure thus is explicit in
    delineating sharply the limited issues which may properly be considered in a
    removal proceeding, where the prosecution is by indictment. Read literally,
    the Rule requires the Court to issue the warrant of removal 'upon production
    of a certified copy of the indictment and upon proof that the defendant is
    the person named in the indictment.'

    In only two reported instances have the courts deviated from the literal
    provisions of Rule 40(3). United States v. Wright, D.C.D.Hawaii 1954, 15
    F.R.D. 184; United States v. Parker, D.C.D.C.1953, 14 F.R.D. 146. Cf. United
    States v. Chiarito, D.C.D.Or.1946, 69 F.Supp. 317.

    In United States v. Wright, supra, District Judge Wiig declined to issue a
    warrant of removal to the Territory of Alaska because the indictment charged
    a crime which, as a matter of law,  [**10]  could not be a violation of any
    law of the United States but only of the local laws of the then Territory of
    Alaska.

    In United States v. Parker, supra, Chief Judge Laws declined to issue a
    warrant of removal where the factual pattern involved the following
    elements: (1) the indictment was more than four years old; (2) the defendant
    was over seventy-five years of age; (3) the defendant had appeared for trial
    in the Northern District of Illinois, where the indictment was filed, on
    eleven separate previous occasions but on each of his eleven appearances the
    case was adjourned by the prosecution; (4) the purpose of the removal
    warrant was not to proceed to trial but to determine the  [*73]  defendant's
    mental ability to stand trial; and (5) no trial date was contemplated. Under
    the enumerated circumstances, the Court determined (14 F.R.D. at page 148)
    that the defendant would be 'unduly harassed' by the issuance of a warrant
    of removal.

    The rationale of the Wright and Parker decisions is inapplicable because the
    Illinois indictment herein as a pleading is predicated on alleged violations
    of clearly applicable Federal law, and there is no suggestion of [**11] 
    harassment through abuse of the prosecutor's powers.

    If the defendant Melekh's attack were confined to the Illinois indictment,
    this Court would be required to order removal without considering the merits
    of the defense claim of immunity.

    However, the decisive feature of this aspect of the case is that the attack
    is not only on the validity of the Illinois indictment but also on the legal
    propriety of this Court's entertaining the removal proceedings at all. The
    challenge to this Court's own jurisdiction, that is, its power to conduct
    the removal proceedings, is fundamental and primary. It is a question that
    must be answered in limine. It cannot be deferred or reserved for the
    District Court for the District of Illinois. The present case is, therefore,
    unlike any of the cases cited by either counsel with respect to the
    interpretation of Rule 40.

    We turn, as we must, to a consideration of the merits of defendant Melekh's
    claim of diplomatic immunity.

    II.

    A statement of the material facts will sharpen the focus on the controlling
    issues of law.

    For present purposes, the sources of fact herein may be considered to be the
    certificate (dated November 4, 1960) of the United States [**12]  Department
    of State (Exh. 1, hereinafter referred to as 'the State Department
    certificate'); the letter (dated November 8, 1960) of His Excellency, the
    Ambassador Extraordinary and Plenipotentiary of the U.S.S.R. to the United
    States of America, Mikhail A. Menshikov (Exh. A. for id., hereinafter
    referred to as 'the Soviet Ambassador's letter'); the defendant Melekh's
    passport (No. 06211) and the American visas therein (Exh. B. for id.); and
    the factual statements made by Melekh's attorney in his oral argument and in
    his main and reply briefs submitted to this Court.

    The Soviet Ambassador's Letter

    The following is the complete text of the Soviet Ambassador's letter:
    'Embassy Of The Union Of Soviet Socialist Republics
    'Washington 6, D.C.
    'November 8, 1960

    'The Honorable District Judges of the U.S. District Court for the Southern
    District of New York 'Honorable Sirs:

    'I hereby have the honor to draw your attention to the fact that the Soviet
    citizen, Igor Y. Melekh, has a diplomatic rank of the Second Secretary of
    the Ministry of Foreign Affairs of the USSR conferred on him in accordance
    with the provisions based on the Decree of the Presidium of the USSR Supreme
    Soviet of May 28, 1943.  [**13] 

    'The Secretary General of the United Nations requested the Government of the
    USSR to make available the services of Mr. Melekh for the post of the Chief
    of the Russian language section in the office of Conference Services of the
    Secretariat of the UN and Mr. Melekh accepted this post with the knowledge
    and consent of the Government of the USSR.

    'Mr. Melekh arrived in the United States on June 10, 1955, having the Soviet
    Diplomatic passport N 06211 and since that time has been attached to the
    Secretariat of the United Nations.

    'The Secretariat of the United Nations and the Department of State of the
    United States at all these times had knowledge of and accepted  [*74]  the
    fact that Mr. Melekh retained and retains at the present time his diplomatic
    rank of the Second Secretary of the Ministry of Foreign Affairs of the USSR.
    '(Signed) M. Menshikov 'Mikhail A. Menshikov 'Ambassador Extraordinary and
    Plenipotentiary of
    the USSR to the USA'
    '(Seal)

    Significantly, the Soviet Ambassador's letter does not state that Melekh was
    or is duly designated by the U.S.S.R. to serve as one of its representatives
    to the United Nations or that Melekh was or is on the staff of the U.S.S.R.
    delegation [**14]  to the United Nations or that Melekh ever performed or
    was ever assigned to perform any diplomatic duties in behalf of the U.S.S.R.
    vis-a-vis the Government of the United States or any other government while
    he was here.

    On the contrary, the letter makes it unmistakably plain that, ever since his
    arrival in the United States on June 10, 1955, Melekh 'has been attached to
    the Secretariat of the United Nations' in the capacity of 'Chief of the
    Russian language section in the office of Conference Services of the
    Secretariat of the UN.'

    Melekh's Passport and the American Visas Therein

    Melekh's non-representative status with respect to the U.S.S.R. in relation
    to the United Nations and his non-diplomatic status with respect to the
    U.S.S.R. in relation to the United States are also evidenced by the terms of
    the American visas in his passport. The first two pages of the passport are
    in Russian; the third and fourth pages thereof are an official, printed
    French translation of the Russian. The translation recites, in relevant
    part, that it is 'Passeport Diplomatique.'

    There are six separate American visas in the passport, bearing the following
    issuance dates: May 13, 1955 (p. 10 of the [**15]  passport); May 25, 1957
    (p. 20 of the passport); September 14, 1958 (p. 17 of the passport); May 25,
    1959 (p. 27 of the passport); August 21, 1959 (p. 30 of the passport); and
    March 7, 1960 (p. 32 of the passport).

    1. The first American visa (May 13, 1955) reads as follows:

    'Official Visa American Embassy Moscow; U.S.S.R. Nonimmigrant Visa
    Nonimmigrant classification G-4 pursuant 22 CFR 41.5; Imm. and Natlty. Act;
    Application No. V-105 2955 Issued on 14 May 1955 Valid through 13 August
    1955 for single application for admission at United States ports of entry.
    New York only. Warren Kelsey American Vice Consul
    Employee of U.N. Secretariat.'

    2. The second American visa (May 25, 1957) reads exactly the same as the
    first one, except that a different application number is set forth. The date
    of issuance is May 27, 1957 and the expiration date is August 25, 1957. It
    was issued by William N. Turpin, American Consul. Like the first visa, it
    classifies the visa as 'G-4' and notes 'Employee of the U.N. Secretariat.'
    3. The third American visa (September 14, 1958) was issued by John A.
    By-water at the American Resident Delegation and Consulate General, Geneva,
    Switzerland. It recites [**16]  that it is 'Nonimmigrant Visa (G-4).'
    4. The fourth American visa (May 25, 1959) was issued by the Foreign Affairs
    Officer, Visa Office, Department of State, Washington, D.C. It is designated
    as 'Nonimmigrant Visa G-4.'

    5. The fifth American visa (August 21, 1959) was issued by John A. McVickar,
    American Consul, at the American Embassy, Moscow. It is designated as
    'Nonimmigrant Visa G-4' and carries the notation: 'Empl. of U.N.
    Secretariat.'

    6. The sixth American visa (March 7, 1960) was issued by the Foreign Affairs
     [*75]  Officer, Visa Office, Department of State, Washington, D.C. It is
    designated as 'Nonimmigrant Visa G-4.'

    To recapitulate each of the six American visas were, on their face,
    designated as 'Nonimmigrant Visa G-4,' pursuant to 22 C.F.R. 41.5; and three
    of said visas carried the notation that Melekh was an 'employee of the U.N.
    Secretariat.'

    22 C.F.R. (Code of Federal Regulations) section 41.5 sets forth the
    'classification symbols' and the 'classification of nonimmigrants for
    purposes of documentation.' Symbol 'G-4' (listed under the columnar heading
    'Symbol to be inserted in visa') is used 'to show the classification of the
    alien as a nonimmigrant' [**17]  (under the provisions of the Immigration
    and Nationality Act of 1952, section 101(a)(15); 8 U.S.C.A. ch. 12, section
    1101(a)(15), popularly known as the McCarran-Walters Act), where he is in
    the class designated as 'International organization officer or employee, and
    members of immediate family.' Class 'G-4' is likewise defined statutorily in
    the Immigration and Nationality Act of 1952, 8 U.S.C.A. §
    1101(a)(15)(G)(iv).

    Both the Immigration and Nationality Act of 1952 and the cognate provisions
    in the Code of Federal Regulations sharply differentiate between
    'International organization officer or employee' and (for example) the
    following classes of nonimmigrant aliens:

    Class Symbol, to be
    .. inserted in visa Citation
    "Ambassador, public
    minister,career
    diplomatic or consular
    officer,and
    members of immediate family" A-1 8 U.S.C.A. § 1101(a)(15)(A)
    .. (i); 22 C.F.R. § 41.5

    "Other foreign-government
    official
    or employee, and members of
    immediate family" G-2 8 U.S.C.A. § 1101(a)(15)(A)
    .. (ii); 22 C.F.R.§ 41.5
    "Principal resident
    representative
    of recognized foreign member
    government to international
    organization, his staff, and
    members of immediate family" G-1 8 U.S.C.A. § 1101(a)(15)(G)
    .. (i); 22 C.F.R.§ 41.5

    "Other representative of
    recognized foreign member
    government to international
    organization, and members of
    immediate family" G-2 8 U.S.C.A. § 1101(a)(15)(G)
    .. (ii); 22 C.F.R. § 41.5
    "Representative of nonrecognized
    or nonmember foreign government
    to international organization,
    and members of immediate family" G-3 8 U.S.C.A.§ 1101(a)(15)(G)
    .. (iii); 22 C.F.R.§ 41.5 [**18] 

    The 'international organization' above referred to is (according to the
    Immigration and Nationality Act of 1952, title 8 U.S.C.A. section
    1101(a)(15) (G)(i)) one 'entitled to enjoy privileges, exemptions, and
    immunities as an international organization  [*76]  under the International
    Organizations Immunities Act (59 Stat. 669).'

    The International Organizations Immunities Act, enacted in 1945 (title 22
    U.S.C.A. 288-288f; Public Law 291, chapter 652, 79th Cong., 1st Session
    1945) contains provisions of controlling importance, discussed below in the
    course of this opinion.

    The above-noted distinction (made in the Immigration and Nationality Act of
    1952 and the implementing regulations) between 'International organization
    officer or employee' and, on the other hand, 'principal resident
    representative of recognized foreign member government to international
    organization' and 'other representative of recognized foreign member
    government to international organization' is one that had been formulated
    previously in substantially the same language in the Headquarters Agreement
    of 1947 between the United States and the United Nations. Joint [**19] 
    Resolution of August 4, 1947, c. 482, 61 Stat. 756, Public Law No. 357, 80th
    Congress, First Session; Full Text in Title 22 U.S.C.A. § 287, note at pp.
    132-140.

    It is the interplay between the International Organizations Immunities Act
    of 1945 and the Headquarters Agreement of 1947 that furnishes the key to the
    problem at bar, as will be shown in the ensuing discussion.
    We return to a consideration of the evidence concerning the defendant's
    visas.

    The Immigration and Nationality Act of 1952, section 101(a)(11), 8 U.S.C.A.
    section 1101(a)(11) defines the terry 'diplomatic visa' as 'a nonimmigrant
    visa bearing that title and issued to a nonimmigrant in accordance with such
    regulations as the Secretary of State may prescribe.' (Emphasis supplied.)
    The regulations referred to are contained in 22 C.F.R. Parts 40 and 41.
    The 'types and validity of diplomatic visas,' both 'regular' and 'limited'
    are governed by the provisions of 22 C.F.R. section 40.3(a) and (b). The
    'classes of aliens eligible to apply for diplomatic visas' of the 'regular'
    type are defined and enumerated in 22 C.F.R. section 40.4(a), while those
    who are eligible to apply [**20]  for 'limited diplomatic visas' are defined
    and enumerated in 22 C.F.R. section 40.4(b).

    The latter provision expressly excludes from its coverage 'subordinate
    members, including employees' of any 'international organizations so
    designated by Executive order.' 22 C.F.R. section 40.4(b)(1). The United
    Nations Organization has been so designated by Executive Order No. 9698
    (Feb. 19, 1946, 11 F.R. 1809, as amended by Executive Order No. 10083,
    October 11, 1949). Title 22 U.S.C.A. § 288, note at p. 157.

    Moreover, the regulations prescribe in detail the procedure governing the
    application for and issuance of diplomatic visas, including the explicit
    requirement that a diplomatic visa must bear the title 'Diplomatic Visa' or
    the word 'Diplomatic' must 'be stamped diagonally across the lower left hand
    margin of the visa stamp, in such manner as to be partially covered by the
    impression seal of the office.' 22 C.F.R. sections 40.7, 40.8, 40.9, 40.10.
    It is crystal clear that, at all material times, Melekh was an employee of
    the United Nations; that he was not eligible to receive an American
    diplomatic visa; that he did not receive an American diplomatic [**21] 
    visa; and that on each of the six occasions on which he did receive an
    American visa, each of the said visas was a nondiplomatic visa.

    Even if Melekh had received a diplomatic visa, that circumstance per se
    would not be of decisive importance, as is shown by the decisions in United
    States v. Coplon, D.C.S.D.N.Y.1949, 84 F.Supp. 472, 475 and United States v.
    Coplon, D.C.S.D.N.Y.1950, 88 F.Supp. 915, 917-918. The present situation -- 
    where Melekh did not have a diplomatic visa --  therefore presents an a
    fortiori case.

    Melekh's Exclusive Employment with the United Nations
    The U.S.S.R. has, of course, the unrestricted sovereign right, for its own
     [*77]  internal purposes, to confer any diplomatic rank on Melekh or to
    give him a diplomatic passport. But, in the context of the pending
    proceedings, there is no legal significance to the purely incidental
    circumstance that Melekh was a Second Secretary of the Ministry of Foreign
    Affairs of the U.S.S.R. or that he arrived in the United States with a
    Soviet Diplomatic passport.

    The salient and uncontradicted facts are that, at all material times, Melekh
    came here in a nondiplomatic capacity and [**22]  worked exclusively in a
    nondiplomatic capacity; that his official activities here were exclusively
    as a United Nations employee; that he is not a public minister of a foreign
    state, authorized and received as such by the President, nor a domestic or
    domestic servant of one (cf. 22 U.S.C.A. § 252, 254); that he did not enter
    the United States as an emissary from the U.S.S.R. to the United States and
    he was never received as such; that he was never notified to the United
    States as attached to the Soviet Embassy; that he was never accredited as a
    foreign diplomatic officer to any other government or to any international
    conference; and that he was never a member of the Soviet Delegation to the
    United Nations.

    The contours of the defendant's argument are somewhat vague. However, an
    analysis of the respects in which the defendant Melekh explicitly states
    that he does not invoke the specific immunities statutes spotlights the
    defense rationale.

    Melekh Is not Entitled to Diplomatic Immunity Pursuant to Title 22 U.S.C.A.
    Sections 252-254

    The general diplomatic immunity statute,  [**23]  Title 22 U.S.C.A. § 252,
    reads in pertinent part as follows:

    'Whenever any writ or process is sued out or prosecuted by any person in any
    court of the United States, * * * whereby the person of any ambassador or
    public minister of any foreign prince or State, authorized and received as
    such by the President, * * * is arrested or imprisoned, * * * such writ or
    process shall be deemed void.'

    The word 'minister,' as used in the above provision, is given a functional
    definition by Title 22 U.S.C.A. § 178, which expressly declares:
    'The word 'minister', when used in sections * * * 251-258, * * * of this
    title, * * * shall be understood to mean the person invested with, and
    exercising, the principal diplomatic functions. * * *'

    The State Department's duly authenticated certificate (Exh. 1) reads as
    follows:

    'This is to certify that I, H. Charles Spruks, Acting Chief of Protocol,
    Department of State, am responsible for registering and maintaining, and
    have custody of, the records of the Department of State pertaining to the
    official status of all [**24]  officers and employees of foreign governments
    in the United States who are entitled to diplomatic immunity pursuant to
    Sections 252-254 of Title 22 of the United States Code.

    'I further certify that such records are kept in the District of Columbia.
    'I have caused diligent search to be made of such records and have found no
    record to exist that Mr. Igor Y. Melekh, a Soviet national employed by the
    United Nations Secretariat, is, or ever has been, notified to and recognized
    by the Department of State in any capacity which would entitle him to
    diplomatic immunity pursuant to the abovementioned Sections 252-254.

    'I further certify that the only records ever received in the Office of
    Protocol regarding the said Mr. Melekh showed him to be an employee of the
    United Nations Secretariat, in which capacity he was entitled to immunity
    from suit and legal process only with respect to acts performed by him in
    his official capacity falling within his functions  [*78]  as an employee of
    the United Nations, as provided in Section 288d(b) of Title 22 of the United
    States Code.

    'Signed this fourth day of November, 1960, at Washington, D.C. '(Signed) H.
    Charles Spruks

    'H. Charles Spruks 'Acting [**25]  Chief of Protocol'

    Melekh's attorney expressly disavows any claim of immunity under Title 22
    U.S.C.A. 252-254. In his reply memorandum (pp. 2, 10) he states:
    'The defendant does not claim that he is entitled to diplomatic immunity
    under this Statute. Nor is it necessary that he should do so. He is entitled
    to diplomatic immunity by virtue of the Law of Nations (International Law)
    which is also the Law of the United States. * * *
    'Furthermore, as we have argued above, the assertion of immunity by the
    defendant is not based upon Sections 252 and 254 of Title 22 of the U.S.
    Code.'

    This disclaimer of possible immunity under Title 22 U.S.C.A. § 252 is
    defendant's unavoidable concession to the manifest fact that he was not a
    Soviet diplomat accredited to any received by the Government of the United
    States. If he were, he would have received complete immunity.

    Melekh Is not Entitled to Immunity Pursuant to the International
    Organizations Immunities Act of 1945

    In 1945, Congress enacted the International Organizations Immunities Act
    (Title 22 U.S.C.A. 288-288f, Public Law 291, chapter 652, 79th Cong., 1st
    Session [**26]  1945). See U.S.Code Congressional Service, 79th Cong. 1st
    Session 1945, pp. 646-650 and pp. 946-952 (H.R. No. 1203), Nov. 12, 1945, to
    accompany H.R. No. 4489). The report of the House Committee on Ways and
    Means (p. 950) pointed out:

    'It should be noted that under this provision and section 8(c) there would
    not be extended full diplomatic immunity from judicial process as in the
    case of diplomatic officers.'

    The House Report (p. 951) concluded with the following statement:
    'The committee is satisfied that this legislation has been prepared with
    great care, that it will safeguard the interests of the United States while
    enabling this country to fulfill its commitments in connection with its
    membership in international organizations, and that it should therefore
    pass.'

    The pertinent provisions of the statute (Title 22 U.S.C.A. § 288 et seq.)
    are as follows:

    ' § 288. Definition of 'international organization'; authority of President
    'For the purposes of sections 288-288f of this title, * * *, the term
    'international organization' means a public international [**27] 
    organization in which the United States participates pursuant to any treaty
    or under the authority of any Act of Congress authorizing such participation
    or making an appropriation for such participation, and which shall have been
    designated by the President through appropriate Executive order as being
    entitled to enjoy the privileges, exemptions, and immunities provided in
    said sections. * * *'

    ' § 288d. Privileges, exemptions, and immunities of officers, employees, and
    their families; waiver

    '(a) Persons designated by foreign governments to serve as their
    representatives in or to international organizations and the officers and
    employees of such organizations, and members of the immediate families of
    such representatives, officers, and employees residing with them, other than
    nationals of the United States, shall, insofar as concerns laws regulating
    entry into and departure from the United States, alien registration and
    fingerprinting, and the registration of foreign agents, be entitled  [*79] 
    to the same privileges, exemptions, and immunities as are accorded under
    similar circumstances to officers and employees, respectively, of foreign
    governments, and members of their families.  [**28] 

    '(b) Representatives of foreign governments in or to international
    organizations and officers and employees of such organizations shall be
    immune from suit and legal process relating to acts performed by them in
    their official capacity and falling within their functions as such
    representatives, officers, or employees except insofar as such immunity may
    be waived by the foreign government or international organization
    concerned.'

    ' § 288e. Notification to and acceptance by Secretary of State of personnel;
    deportation of undesirables; extent of diplomatic status

    '(a) No person shall be entitled to the benefits of section 288-288f of this
    title, * * *, unless he (1) shall have been duly notified to and accepted by
    the Secretary of State as a representative, officer, or employee; or (2)
    shall have been designated by the Secretary of State, prior to formal
    notification and acceptance, as a prospective representative, officer, or
    employee; or (3) is a member of the family or suite, or servant, of one the
    foregoing accepted or designated representatives, officers, or employees.

    '(c) No person shall, by reason of the provisions of said sections, be
    considered as receiving diplomatic [**29]  status or as receiving any of the
    privileges incident thereto other than such as are specifically set forth
    herein.'

    Title 22 U.S.C.A. § 288 et seq. was applied to the United Nations by
    Executive Order No. 9698 (February 19, 1946), 11 F.R. 1809, as amended by
    Executive Order No. 10083 (1949); 22 U.S.C.A. 288 note at page 157.
    Section 288d(a), relating to laws regulating entry and departure from the
    United States, alien registration, and fingerprinting, provides that
    employees, officers, and representatives in international organizations are
    entitled to the same immunities as officers and employees of foreign
    governments.

    However, section 288d(b), relating to immunity from suit and legal process,
    provides that representatives, employees, and officers of international
    organizations have immunity only with respect to 'acts performed by them in
    their official capacity and falling within their functions as such
    representatives, officers, or employees.' This provision does not confer
    general diplomatic status or immunity. United States v. Coplon, 1949, 84
    F.Supp. 472. [**30] 

    The foregoing provision adopted a functional criterion for determining the
    scope of immunity; and, in so doing, it did not differentiate between
    representatives of the Member States of the United Nations and, on the other
    hand, officials and employees of the Organization.

    Defendant's attorney does not assert immunity under the International
    Organizations Immunities Act of 1945, which has been rendered applicable to
    United Nations officers and employees. In his reply brief (p. 10), referring
    to that statute, defendant's attorney states: '* * * we respectfully submit
    (1) That the defendant has not made an assertion of immunity on the ground
    of this Statute; * * *.'

    This disclaimer of possible immunity under the International Organizations
    Immunities Act can mean only that the defendant does not argue that the
    alleged criminal acts, as charged in the indictment, grew out of or were
    incidental to his official activities as a United Nations officer or
    employee. If the charged acts had been ancillary to his United Nations
    functions, the defendant would have received complete  [*80]  immunity under
    the International Organizations Immunities Act.

    Melekh Is not Entitled to Immunity [**31]  Pursuant to the Headquarters
    Agreement of 1947

    On June 26, 1947, the United States and the United Nations entered into an
    agreement commonly called 'the Headquarters Agreement.' This agreement,
    signed on June 26, 1947 and covered by a joint resolution of August 4, 1947,
    authorized the President to effectuate the agreement. The agreement was
    approved on August 4, 1947. Title 22 U.S.C.A. § 287 note at page 132; 61
    Stat. 756, Chap. 482, 80th Cong. 1st Sess. 1947. The agreement became
    operative on November 21, 1947 by an exchange of notes between the United
    States representative to the United Nations and the Secretary-General of the
    United Nations.

    Article V of the Headquarters Agreement, entitled 'Resident Representatives
    to the United Nations,' consists of Section 15, reading as follows:
    'Section 15

    '(1) Every person designated by a Member as the principal resident
    representative to the United Nations of such Member or as a resident
    representative with the rank of ambassador or minister plenipotentiary,

    '(2) such resident members of their staffs as may be agreed upon between the
    Secretary-General, the Government of the United States and the
    Government [**32]  of the Member concerned,

    '(3) every person designated by a Member of a specialized agency, as defined
    in Article 57, paragraph 2, of the Charter, as its prinipal resident
    representative, with the rank of ambassador or minister plenipotentiary, at
    the headquarters of such agency in the United States, and

    '(4) such other principal resident representatives of members to a
    specialized agency and such resident members of the staffs of
    representatives to a specialized agency as may be agreed upon between the
    principal executive officer of the specialized agency, the Government of the
    United States and the Government of the Member concerned, shall, whether
    residing inside or outside the headquarters district, be entitled in the
    territory of the United States to the same privileges and immunities,
    subject to corresponding conditions and obligations, as it accords to
    diplomatic envoys accredited to it. In the case of Members whose governments
    are not recognized by the United States, such privileges and immunities need
    be extended to such representatives, or persons on the staffs of such
    representatives only within the headquarters district, at their residences
    and offices outside the district,  [**33]  in transit between the district
    and such residences and offices, and in transit on official business to or
    from foreign countries.'

    Under the above provisions of the Headquarters Agreement, diplomatic
    immunity is granted to four categories of representatives of member nations
    of the United Nations. However, the defendant cannot avail himself of the
    Headquarters Agreement. He is not the principal resident representative of a
    member; nor is he a resident representative with the rank of ambassador or
    minister plenipotentiary; nor is he a resident member of the staff of one of
    the aforementioned emissaries; nor does defendant come within any of the
    other categories of individuals granted immunity under the Headquarters
    Agreement.

    The defendant's non-reliance on the Headquarters Agreement of 1947
    silhouettes the fact that he does not construe his position --  either as
    the Second Secretary of the Soviet Foreign Ministry or as a United Nations
    employee --  to be equivalent to or inclusive of the position of
    representative of the U.S.S.R. to the United States. If he had been a member
    of any of the Four categories of representatives  [*81]  specified in the
    Headquarters Agreement,  [**34]  he would have received diplomatic immunity
    for his alleged acts.

    The Headquarters Agreement did not confer the immunities of accredited
    diplomatic envoys upon officers and employees of the United Nations, as they
    are not mentioned in the Headquarters Agreement. Consequently, the immunity
    enjoyed by officers and employees of the United Nations --  as distinguished
    from the four categories of resident representatives to the United
    Nations --  are those that are defined in the International Organizations
    Immunities Act. And, as noted, the immunity provisions of the International
    Organizations Immunities Act sets up a functional test of immunity.

    The United Nations is a legal entity, separate and distinct from the member
    nations. While it is not a State nor a super-State, it is an international
    person, clothed by its members with the competence necessary to discharge
    its functions. Advisory Opinion, Reparation for Injuries Suffered in the
    Service of the United Nations, I.C.J.Reports 1949, 174; 43 American Journal
    of International Law 589 (1949). See Balfour, Guthrie & Co. v. United
    States, D.C.D.Cal.1950, 90 F.Supp. 831, 832. [**35] 

    An employee of the United Nations, as such, is separate and distinct from
    persons designated by foreign governments to serve as their governmental
    representatives in or to the United Nations. The distinction between
    governmental representatives and United Nations officers appears in the
    United Nations Charter, Article 105, and in the International Organizations
    Immunities Act of 1945, 22 U.S.C.A. § 288b and 288d.

    This distinction is of decisive importance in the present case because the
    Headquarters Agreement of 1947 carved out of the International Organizations
    Immunities Act of 1945 four categories of governmental representatives and
    conferred diplomatic immunity on them --  leaving, however, United Nations
    officials and employees within the narrower ambit of limited immunity as
    granted by the International Organizations Immunities Act of 1945. The
    defendant neither qualifies for nor claims such immunity.

    The foregoing analysis reveals that the defendant's position embraces these
    negative features: (1) the defendant does not claim that he was or is a
    diplomatic officer accredited to the United States or to any other
    government; (2) the defendant [**36]  does not claim that the acts charged
    against him in the indictment were, directly or remotely, related to the
    functions of his United Nations employment; and (3) the defendant does not
    claim that he was a representative of the U.S.S.R. to the United Nations or
    a member of the staff of a U.S.S.R. representative to the United Nations.
    What, then, does the defendant affirmatively offer as the sources of his
    claimed diplomatic immunity?

    The two bases offered are: Article 105 of the United Nations Charter and the
    uncodified, general principles of international law.

    Melekh Is Not Entitled to Diplomatic Immunity Pursuant to Article 105 of the
    United Nations Charter

    Article 105 of the Charter of the United Nations (59 Stat. (79th Cong. 1st
    Sess. 1945) 1033, 1053), provides:
    'Article 105

    '1. The Organization shall enjoy in the territory of each of its Members
    such privileges and immunities as are necessary for the fulfillment of its
    purposes.

    '2. Representatives of the Members of the United Nations and officials of
    the Organization shall similarly enjoy such privileges and immunities as are
    necessary for the independent exercise of their functions in connection with
    the Organization.  [**37] 

    '3. The General Assembly may make recommendations with a view to determining
    the details of the application of paragraphs 1 and 2 of this Article or may
    propose conventions  [*82]  to the Members of the United Nations for this
    purpose.'

    As a treaty signed and ratified by the United States, the Charter of the
    United Nations is part of 'the supreme Law of the Land.' U.S.Const. Art. VI,
    par. 2.

    Under Article 105(2) of the United Nations Charter, the United States has an
    obligation to provide the representatives of member nations and the
    officials of the United Nations with such privileges and immunities as are
    'necessary' for the independent exercise of their 'functions in connection
    with the (United Nations) Organization.'

    Measures implementing Article 105 of the United Nations Charter need only
    pass the constitutional test of being 'necessary and proper' (U.S.Const.,
    Art. I, section 8, clause 18), which [**38]  in turn depends on 'the
    functional standard set up in the Charter.' Note, The United Nations Under
    American Municipal Law: A Preliminary Assessment, 55 Yale L.J. 778, 782
    (1946); Comment, The Privileges and Immunities of United Nations Delegates
    and Officials --  The International Organization Immunities Act, 46 Mich.
    L.Rev. 381 (1948).

    The privileges and immunities to be enjoyed by representatives of the
    members of the United Nations and by officials of the United Nations itself
    are by the very terms of Article 105 qualified and conditioned. Their
    privileges and immunities are those that 'are necessary for the independent
    exercise of their functions in connection with the Organization.' As
    expressly formulated by the United Nations Charter, the immunity is limited
    and specifically functional in scope and character. It is not the unlimited
    and unqualified immunity traditionally given to diplomats.

    The deliberateness with which the use of the term 'diplomatic' was avoided
    in the drafting of Article 105 is brought into sharp focus by a number of
    salient factors. The precise intent of the United Nations in drafting
    Article 105 is demonstrated by events [**39]  both prior to and after the
    adoption of the particular language in Article 105.

    Article 105 as it presently reads (except for renumbering) was drafted by
    the Legal Problems Committee of the San Francisco United Nations Conference
    and adopted by the Conference itself. Hill, Immunities and Privileges of
    International Officials (Carnegie Endowment for International Peace, 1947)
    pp. 102, 103.

    The Legal Problems Committee, commenting on the text of Article 105, stated:
    'In order to determine the nature of the privileges and immunities, the
    Committee has seen fit to avoid the term 'diplomatic' and has preferred to
    substitute a more appropriate standard, based, for the purposes of the
    Organization, on the necessity of realizing its purposes and, in the case of
    the representatives of its members and officials of the Organization, on
    providing for the independent exercise of their functions. * * * (Emphasis
    supplied.)

    'The draft article proposed by the Committee does not specify the privileges
    and immunities respect for which it imposes on the member states. This has
    been thought superfluous. The terms 'privileges' and 'immunities' indicate
    in a general way all that could be considered [**40]  necessary to the
    realization of the purposes of the Organization, to the free functioning of
    its organs and to the independent exercise of the functions and duties of
    their officials: exemption from tax, immunity from jurisdiction, facilities
    for communication, inviolability of buildings, properties, and archives,
    etc. * * * But if there is one certain principle it is that no member state
    may hinder in any way the working of the Organization or take any measures
    the effect of which might be to increase its burdens, financial or other.
    (Report of the Rapporteur of Committee IV/2, as approved by the Committee,
    Document 933 IV/2/42(2), June 12, 1945, Documents of the United Nations
    Conference on International Organization, San Francisco, 1945,  [*83]  Vol.
    XIII, Commission IV, Judicial Organization, pp. 703-705).' Quoted in Hill,
    op. cit. supra, 103-104

    It would appear to be indisputable that the Legal Problems Committee
    rejected the term 'diplomatic immunities' and, instead, adopted the narrower
    criterion geared to the functions of the United Nations. 'The functional
    principle as the basis' for conferring immunities on the officials of
    international organizations 'seems now almost [**41]  universally
    recognized.' Kunz, Privileges and Immunities of International Organizations,
    41 A.J.I.L. 828, 842, 847, 854 (1947).

    The contemporaneous preparation of a significantly different provision by
    another United Nations committee is illuminating if additional light is
    needed. This other committee prepared the Statute of the International Court
    of Justice. The committee recommended (and the United Nations Conference
    adopted) Article 19 of the Statute of the International Court of Justice,
    which grants 'diplomatic' privileges and immunities to members of that
    court. 'A distinction was thus introduced between the prerogatives of the
    judges and those of international officials.' Hill, op. cit. supra, 105.
    The language of Article 105 of the United Nations Charter --  'immunities as
    are necessary for the independent exercise of their functions in connection
    with the Organization' --  is to be sharply contrasted with the congnate
    provision in the covenant of the League of Nations, Art. VII, par. 4, which
    provided:

    'Representatives of the Members of the League and officials of the League,
    when engaged on business of the League, shall enjoy diplomatic
    privileges [**42]  and immunities.' (Emphasis supplied.)

    Even the League of Nations provision contained the qualifying proviso: 'when
    engaged on business of the League.' But that provision, nevertheless, did
    use the phrase 'shall enjoy diplomatic privileges and immunities' -- 
    well-known language studiously avoided in the United Nations Charter,
    Article 105. 'The legal status of United Nations delegates and officials is
    not tied (by Article 105) to the prerogatives of diplomatic agents by
    international law, as was done in the Covenant of the League of Nations.'
    Comment, Privileges and Immunities of United Nations Delegates and
    Officials, 46 Michigan L.Rev. 381, 382 (1948); Kunz, Privileges and
    Immunities of International Organizations, 41 A.J.I.L. 828, 839, 844 (1947).
    The Preparatory Commission of the United Nations submitted a study on
    privileges and immunities to the first session of the General Assembly.
    Report of the Preparatory Commission of the United Nations (Preparatory
    Commission of the United Nations, 1945), Chap. VII, pp. 61-71. (Quoted in
    Hill, op. cit. supra, 205-223.) In its study, the Preparatory Commission
    stated:

    'In this report the expression 'diplomatic privileges [**43]  and
    immunities' is used for convenience to describe the whole complex of
    privileges and immunities which are in fact accorded to diplomatic envoys.
    While it will clearly be necessary that all officials, whatever their rank,
    should be granted immunity from legal process in respect of acts done in the
    course of their official duties, whether in the country of which they are
    nationals or elsewhere, it is by no means necessary that all officials
    should have diplomatic immunity. On the contrary, there is every reason for
    confining full diplomatic immunity to the cases where it is really
    justified. Any excess or abuse of immunity and privilege is as detrimental
    to the interests of the international organization itself as it is to the
    countries who are asked to grant such immunities.' (Emphasis supplied.)
    (Quoted in Hill, op. cit. supra, 207-208.)

    Under paragraph 3 of Article 105 of the United Nations Charter, the General
    Assembly may make recommendations 'with a view to determining the details of
    the application' of the first two immunities paragraphs. On February 13,
    1946, the General Assembly approved the General  [*84]  Convention on
    Privileges and Immunities of the United Nations.  [**44]  Hill, op. cit.
    supra, 224-231. Article V, section 18 of the General Convention applied to
    United Nations officials --  as distinguished from the representatives of
    the United Nations members --  and would render them immune from legal
    process 'in respect of words spoken or written and all acts performed by
    them in their official capacity; * * *.' The privileges and immunities
    accorded to diplomatic envoys in international law were proposed to be made
    applicable (by Article V, section 19) only to the Secretary-General and
    Assistant-Secretaries General and their families. Hill, op. cit. supra, 228.
    Although the Convention proposed by the General Assembly has not been
    acceded to by the United States, the restrictive language of the Convention
    is further demonstration 'that the United Nations itself does not conceive
    the charter phrase 'Such privileges and immunities as are necessary,' to
    encompass subordinate officials' freedom from arrest for crimes unconnected
    to the exercise of their United Nations functions.' United States v. Coplon,
    84 F.Supp. 472, 474, No. 3.

    The language of Article 105 of the United Nations Charter, its legislative
    history and the intention [**45]  of its draftsmen refute completely the
    defendant Melekh's contention that the immunity granted by Article 105 is
    'similar to the immunities granted to ambassadors and public ministers
    throughout the civilized world, including specifically immunity from
    jurisdiction.' Defendant's reply memorandum, p. 11.

    Assuming arguendo that Article 105 is a decretal provision, the Court is of
    the view that the defendant Melekh does not come even remotely within its
    protective reach. The alleged acts forming the subject of the indictment
    were patently not 'necessary for the fulfillment of' the United Nation's
    'purposes,' nor were they 'necessary for the independent exercise' of the
    functions of Member States' representatives and United Nations officials 'in
    connection with the (United Nations) Organization.' See United States v.
    Coplon, D.C.S.D.N.Y. 1951, 84 F.Supp. 472, 474.

    The defendant has claimed diplomatic status and immunity because of his
    original appointment by the U.S.S.R.; and he explains his non-accreditation
    to the United States by the fact that he was sent to the United Nations, not
    to the Government of the United States. Diplomatic immunity of
    non-accredited persons [**46]  is the result of functional necessity. The
    defendant has claimed neither diplomatic nor international functions which
    would warrant his being granted immunity, in the absence of applicable
    treaty provisions.

    In essence, the defendant claims that his government can create diplomatic
    immunities in the United States simply by characterizing him a 'diplomat'
    and sending him to work in the United Nations, regardless of his actual
    duties. Neither the United Nations nor the United States recognizes 'such a
    broad and potentially dangerous power in member nations, all of whom agreed
    to the charter limitation to 'such privileges and immunities as are
    necessary for the independent exercise of their function." Comment,
    Jurisdictional Immunity of United Nations Employees, 49 Michigan L.Rev. 101,
    104 (1950).

    To discharge its obligation under the United Nations Charter, the United
    States has enacted the two statutes already considered: the International
    Organizations Immunities Act of 1945 and the Headquarters Agreement of 1947.
    These statutes do not limit the privileges and immunities referred to in
    Article 105 of the Charter. On the contrary, they implement this country's
    obligation to [**47]  provide the necessary privileges and immunities for
    representatives to the United Nations and United Nations officials. Like
    Gu*****ev's activities in the Coplon case, D.C.S.D.N.Y.1949, 84 F.Supp. 472;
    Comment, 49 Mich.L.Rev. 101 (1950)), the defendant Melekh's alleged criminal
    acts fall outside the limits of any immunity that he is entitled to claim.

     [*85]  Defendant Is not Entitled to Diplomatic Immunity Under the Law of
    nations

    Putting aside the federal statutes (i.e., the general diplomatic immunities
    statute, the International Organizations Immunities Act of 1945, and the
    Headquarters Agreement of 1947) and the United Nations Charter, Article
    105 --  the defendant seeks to establish his right to immunity by virtue of
    the Law of Nations.

    There can be no dispute about the proposition that American courts are bound
    to recognize and apply the Law of Nations as part of the law of the land.
    See State of Kansas v. State of Colorado, 1907, 206 U.S. 46, 97, 27 S.Ct.
    655, 51 L.Ed. 956.

    It is likewise indisputable that the diplomatic immunities statute (Title 22
    U.S.C.A. § 252) is 'generally declaratory of [**48]  international law' and
    is 'designed to give it a specific local application.' Barnes, Diplomatic
    Immunity From Local Jurisdiction: Its Historical Development Under
    International Law and Application In United States Practice, The Department
    of State Bulletin, XLIII, No. 1101 (Aug. 1, 1960) 173, 176; 4 Hackworth,
    Digest of International Law (1942) 460, 461; Trost v. Tompkins,
    D.C.Mun.App.1945, 44 A.2d 226, 228; Bergman v. DeSieyes, D.C.S.D.N.Y.1946,
    71 F.Supp. 334; In re Baiz, 1890, 135 U.S. 403, 420, 10 S.Ct. 854, 34 L.Ed.
    222.

    The defendant Melekh argues that his diplomatic status 'arises out of the
    relationship between his government and the United Nations.' Defendant's
    reply memorandum of law, p. 10. This statement creates a spurious issue.
    The certificate of the Department of State (Exh. 1) states 'that the only
    records ever received in the Office of Protocol regarding the said Mr.
    Melekh showed him to be an employee of the United Nations Secretariat.' But
    aside from that certificate, all the other evidence in the record (including
    the Soviet Ambassador's letter, the American visas in the defendant's
    passport, and factual oral and written [**49]  statements made in behalf of
    the defendant) shows that the relationship between the defendant himself and
    the United Nations was only that of employee and employer, not that of a
    Member State's representative to the United Nations and not that of a
    functioning diplomatic officer.

    The defendant's main memorandum of law (p. 3) states:

    'The passport and visa under which Mr. Melekh entered the United States
    reflected his claim and the claim of his government that he enjoys
    diplomatic status * * *.' (Emphasis supplied.)

    This statement is factually erroneous, as the visas themselves show.
    It is neither the defendant's position with his own government, as such, nor
    the relationship of the defendant's government, as such, with the United
    Nations that is decisive. What counts is the actual position occupied by the
    defendant in the United Nations and his actual duties and functions in the
    United Nations. Regardless of the significance of the defendant's lack of
    accreditation to the United States or to any other nation, and judged by the
    criteria established by the Law of Nations, the defendant was not a
    diplomatic agent when he entered the United States.

    The authorities relied on by the [**50]  defendant indicate the fundamental
    fallacy of his legal position. Most of these authorities deal with the
    inapposite situation of admittedly diplomatic officers who were in transitu.
    For example, the cited discussion in 4 Hackworth, Digest of International
    Law (1942), 460, 461, related to a Russian diplomatic agent in Mexico, who
    was en route to Mexico via the United States and who was exempt from a head
    tax applicable to persons entering this country.

    Similarly, in Bergman v. DeSieyes, D.C.S.D.N.Y.1946, 71 F.Supp. 334, a
    French diplomatic officer, duly accredited to Bolivia, was traveling through
    the United States to his post in the other country. Likewise, in Holbrook v.
    Henderson,  [*86]  4 Sandf. 619 (Superior Ct. N.Y.C.1851), the defendant,
    the duly accredited ambassador of Texas, having been duly received by the
    governments of England and France, was traveling through New York City on
    his return to Texas.

    The immunities of duly accredited diplomatic agents while en route to their
    post (see Harvard Research In International Law, Draft Convention on
    Diplomatic Privileges and Immunities, 26 A.J.I.L.Supp. 15, 85-89 (1932)) is
    a subject not involved in the [**51]  case at bar

    The defendant admits (reply memorandum, p. 6) that he entered the United
    States 'for the sole purpose of assuming his post as an official of the
    United Nations' (emphasis supplied) and that (p. 12) he had requested the
    United States for permission to travel to this country 'for the purpose of
    assuming his post as an official of the United Nations.' In line with the
    conceded fact that he was to be a United Nations employee, he was given a
    G-4 visa and not a diplomatic visa.

    The defendant argues (main memorandum, pp. 9-10):

    'There are many instances when member states have made available Ambassadors
    and other diplomatic officials for the accomplishment of particular tasks of
    the United Nations with the understanding on the part of these member
    states, as well as that of the Secretary General of the United Nations, that
    these diplomats would only be made available to serve as officials of the
    United Nations on condition that they should be able to retain their
    diplomatic status with all the privileges and immunities accompanying this
    status. If these privileges and immunities were denied, the member states
    would not make these diplomats available and the work of the United [**52] 
    Nations would be seriously interfered with. The act of the U.S.S.R. in
    making available to the United Nations Mr. Melekh the Second Secretary of
    its Foreign Ministry to serve as Chief of the Russian Language Section in
    the Office of Conference Service of the Secretariat and the acceptance of
    Mr. Melekh in that capacity was an act of the same essential nature.'
    The foregoing is simply an argumentative conclusion and characterization of
    the facts that do not support the defendant's claim.

    In his oral argument, the defendant's attorney said he was making a tender
    of proof of the fact, inter alia, 'that a request was made by the
    Secretariat, although I may have said the Secretary General and that may be
    the fact, your Honor --  or somebody who speaks for the Secretariat of the
    United Nations, a request was made for someone to occupy the office that Mr.
    Melekh has been occupying in the United Nations since 1955; and that Mr.
    Melekh's government advised the Secretariat that they have a person
    available who is a diplomat, if they used that language, or the Second
    Secretary --  I am not sure, your Honor, whether they specified him by his
    title or whether they specified him generally --  [**53]  and that he would
    be available to take that position, with the understanding that he was to
    retain the status' (s.m. pp. 39-40).

    In contrast to the foregoing assertion, the Soviet Ambassador's letter
    (Defendant's Exh. A for identification, which, together with defendant's
    passport, has been treated as in evidence) does not characterize the
    defendant's status nor does it use the word 'status.' It simply states the
    fact that the defendant 'has a diplomatic rank of the Second Secretary of
    the Ministry of Foreign Affairs' and that 'the Secretariat of the United
    Nations and Department of State of the United States at all these times had
    knowledge of and accepted the fact that Mr. Melekh retained and retains at
    the present time his diplomatic rank of the Second Secretary of the Ministry
    of Foreign Affairs of the USSR.'

    The Soviet Ambassador's letter --  although referring to the United Nations
    Secretary-General's request for the  [*87]  defendant's services --  does
    not allude to any alleged 'understanding' that the defendant was to retain
    the 'status' of a diplomat. n1 Giving the letter the broadest intendment,
    the Court is of the view that the letter refers to the knowledge on [**54] 
    the part of the United Nations and the United States since 1955 that the
    defendant retained the USSR title of Second Secretary of the Ministry of
    Foreign Affairs while working for the United Nations.

    The Soviet Ambassador's letter is conclusive of the internal relationship
    between the defendant and the USSR. See United States v. Pink, 1941, 315
    U.S. 203, 220, 62 S.Ct. 552, 86 L.Ed. 796; Banco De Espana v. Federal
    Reserve Bank, 2 Cir., 1940, 114 F.2d 438, 443; Agency of the Canadian Car &
    Foundry Co. v. American Can Co., 2 Cir., 1919, 258 F. 363, 368, 6 A.L.R.
    1182. However, that letter does not describe the actual functions or duties
    of the defendant since 1955 as other than the functions or duties as a
    United Nations employee. Nothing in the letter neutralizes the fact that the
    defendant's official activities while in the United States were those as a
    United Nations employee. His attorney, in oral argument, referred to his
    'certificate of employment with the United Nations' (s.m.p. 41). n2
     [*88]  For the purposes of this case, the legal effect of the defendant's
    title of 'second Secretary of the Ministry of Foreign Affairs' is
    only [**55]  that of a brevet superadded to his United Nations designation.
    In his oral argument, the defendant's attorney stated:

    'Now that is a diplomatic passport, your Honor, and they do not issue visas
    upon diplomatic passports without the acceptance of the diplomatic status of
    the applicant (s.m.p. 30). * * * The one who grants the visa recognizes the
    diplomatic status of the person who presents a diplomatic passport (s.m. p.
    31).'

    The foregoing assertion is, as shown already, without merit in point of fact
    and of law. Although the United States does issue diplomatic visas in
    appropriate situations, the defendant was not given a diplomatic visa. He
    was given a G-4 visa as a United Nations employee.

    Inasmuch as the defendant did not enter the United States in 1955 or
    thereafter to date as a diplomatic officer and he has not been performing
    diplomatic functions or activities de facto or de jure in the United States,
    he is not entitled to diplomatic immunity under the general principles of
    international law --  even if it be assumed arguendo that the specific and
    limited immunities provisions of Article 105 of the United Nations Charter
    and of the federal statutes are not dispositive [**56]  of the defendant's
    claim.

    Even under the most liberal draft-proposal --  i.e., that formal or official
    acceptance or reception by the receiving state is not controlling and that
    the officer obtains immunity at the moment when he enters upon the territory
    of the receiving government --  it is an essential pre-condition to immunity
    that the officer have in fact a diplomatic character when he enters and that
    he make known his position and status as such to the host government. See
    Harvard Research In International Law, Draft Convention on Diplomatic
    Privileges and Immunities, 26 A.J.I.L.Supp. 15, 90 (1932).

    There is not the slightest intimation that the defendant as a diplomat was
    'received as such' by the United Nations Organization. See Farnsworth v.
    Zerbst, 5 Cir., 1938, 98 F.2d 541, 544. 'It seems settled as principle that
    the consent or acquiescence of the 'receiving' state is a necessary
    condition precedent to immunity, * * *.' 50 A.J.I.L. 115, Deener, Some
    Problems Of The Law Of Diplomatic Immunity, at 118 (1956). It is elementary
    'that no foreign [**57]  diplomat may exercise his functions without the
    consent of the receiving state.' Preuss, Capacity For Legation And The
    Theoretical Basis of Diplomatic Immunities, 10 N.Y.U. Law Quarterly Review
    (1932-1933) 170, 177.

    The defendant's 'official position in his government is not decisive of his
    right to enjoy immunity from suit in our courts.' See Trost v. Tompkins,
    D.C.Mun.App.1945, 44 A.2d 226, 230. The defendant does not even intimate
    that he had, in fact, exercised diplomatic functions and that any government
    consented to or acquiesced in receiving him in a diplomatic capacity. n3
    As an employee of the United Nations, the defendant was not the
    representative of any particular state. He performed his official 'duties by
    authority of an international organization; (he was) * * * neither
    accredited to any particular government, nor (was he) * * * sent on a
    temporary mission on behalf of any sovereign independent state.' Deak,
    Classification, Immunities and Privileges of Diplomatic Agents, 1 Southern
    California L.Rev. 209, 332, 333.

     [*89]  Under the well-known Headquarters Agreement in force since 1947,
    there is a modus operandi readily available to a member state [**58]  of the
    United Nations to secure diplomatic immunity for one of its diplomatic corps
    who is to be assigned to some particular United Nations mission or task. If
    the particular member of the diplomatic corps is duly placed in one of the
    four categories of representatives specified in the Headquarters Agreement,
    he will obtain full diplomatic immunity.

    Any other course of procedure --  such as the results attributed by the
    defendant Melekh to the retaining of his diplomatic rank while serving as a
    United Nations official and not as his country's representative --  would
    fly in the face of specifically applicable statutes and would disrupt the
    established arrangement for diplomatic immunity to specified categories of
    governmental representatives and their staff, so meticulously worked out
    between the United Nations and the United States.

    Original Jurisdiction of the Supreme Court not Applicable

    The Supreme Court has original and exclusive jurisdiction in proceedings
    against ambassadors or other public ministers of foreign states.
    Constitution, Art III, sec. 2, clause 2; 28 U.S.C.A. § 1251 [**59]  (a)(2).
    As the defendant Melekh has no diplomatic status, he does not qualify as
    diplomatic agent or officer under any of the liberal definitions of 'public
    minister.' This is not a case within the original and exclusive jurisdiction
    of the Supreme Court.

    III.

    Summary and Conclusion

    The problem of the privileges and immunities of international organizations
    and of their officials and employees is one phase of the modern Law of
    Nations. The immunities of the personnel of international organizations have
    evolved out of a two-fold interacting process. That process has operated by
    analogy to the traditional concepts of diplomatic and parliamentary
    immunities and by recognition of the vital importance of the independent
    functioning of international organizations and their personnel in order to
    achieve their objectives.

    Article 105 of the United Nations Charter and the implementing statutes
    represented by the International Organizations Immunities Act of 1945 and
    the Headquarters Agreement of 1947 are the specific legal expression and
    concrete projection of that process in action.

    The United Nations Charter, the federal statutes, the Common Law of Nations
    have been given a broad and [**60]  liberal application by the Court in this
    case. See Barnes, Diplomatic Immunity From Local Jurisdiction: Its
    Historical Development Under International Law and Application in United
    States Practice, The Department of State Bulletin, vol. XLIII, No. 1101
    (August 1, 1960) 173, 182; Jenks, Craftsmanship In International Law, 50
    A.J.I.L. 32, 60 (1956).

    Despite that latitudinarian interpretation, the Court must conclude that the
    applicable provisions of law do not confer immunity upon the defendant
    Melekh with respect to the acts charged in the indictment. His claim of
    immunity is overruled and rejected.

    Jurisdiction over the defendant Melekh and the co-defendant Hirsch and the
    subject-matter of these proceedings is vested in this Court.

    Both defendants are ordered removed to the Northern District of Illinois.
    Submit order on notice.

    - - - - - - - - - - - - - - Footnotes - - - - - - - - - - - - - - -

    n1. Defense counsel does not explicitly state that such an understanding was
    ever entered into on behalf of the United Nations nor does the Soviet
    Ambassador's letter indicate a bestowal of diplomatic immunity on the
    defendant by the United Nations Secretariat. Assuming arguendo that the
    Secretariat or the Secretary-General himself had agreed to grant diplomatic
    immunity to the defendant, an agreement of that nature would have no legal
    effect.

    The United Nations cannot grant immunity so far as it itself is concerned
    because the United Nations is not a sovereign State.

    The juridical nature of the United Nations as a legal entity was expounded
    by the International Court of Justice in an advisory opinion, dated April
    11, 1949. Reparation For Injuries Suffered In The Service Of The United
    Nations. I.C.J. Reports, 1949, p. 174; also reported in full in 43 A.J.I.L.
    589 (1949). The International Court of Justice pointed out:

    'Accordingly, the Court has come to the conclusion that the Organization is
    an international person. That is not the same thing as saying that it is a
    State, which it certainly is not, or that its legal personality and rights
    and duties are the same as those of a State. (43 A.J.I.L. at 592-593) * * *
    Whereas a State possesses the totality of international rights and duties
    recognized by international law, the rights and duties of an entity such as
    the Organization must depend upon its purposes and functions as specified or
    implied in its constituent documents and developed in practice.' 43 A.J.I.L.
    at 593.

    See Balfour, Guthrie & Co. v. United States, D.C.N.D.Cal.1950, 90 F.Supp.
    831, 832.

    The United Nations does not possess the power to grant immunity against the
    operation of the laws of the sovereign government of the United States.
    The subject of immunity is covered comprehensively in the multi-lateral
    treaty known as the United Nations Charter (Article 105) and in the
    Headquarters Agreement of 1947, entered into between the United Nations and
    the United States. The United Nations Charter and the Headquarters Agreement
    cannot be amended or suspended by any one individual official. [**61] 
     
    n2. Any ambivalence of the defendant's official character is resolved by an
    inquiry into his actual activities and functions vis-a-vis the United
    Nations and the United States. The test is functional, not titular. The
    pertinent question is whether the defendant, while in the United States,
    possessed 'functions' as an agent of his government 'for the transaction of
    its diplomatic business abroad.' See In re Baiz, 1890, 135 U.S. 403, 419, 10
    S.Ct. 854, 858.

    A foreign official may have 'a double political capacity' (cf. In re Baiz,
    supra, 135 U.S. at page 424, 10 S.Ct. at page 860). If, however, he
    functions in fact only in a non-diplomatic character and is recognized only
    in that character, he does not possess diplomatic status and the immunities
    appertaining thereto.

    Rank or title is only one evidentiary circumstance of diplomatic function.
    But rank or title does not ipso facto create diplomatic status. Even entry
    into this country on a diplomatic visa may not be conclusive. See United
    States v. Coplon, D.C.S.D.N.Y.1950, 88 F.Supp. 915, 920.

    Inasmuch as the defendant came here for the sole purpose of working for the
    United Nations and he worked exclusively for the United Nations, his
    diplomatic title became an appendage without function while he was in the
    United States as a United Nations employee. [**62] 
     
    n3. The normal requirement of accreditation and recognition as a preliminary
    to binding diplomatic status is not a punctilio excogitated by a stickler of
    etiquette. It is a centuries-old requirement dictated by the practical
    necessities of political intercourse.
     
    - - - - - - - - - - - - End Footnotes- - - - - - - - - - - - - -






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