Ganey and Smith, Circuit Judges, and Kirkpatrick, District Judge.
The appellants, John William Butenko and Igor A. Ivanov, were indicted by a federal grand jury in Newark, New Jersey, in a bill of indictment containing three counts. Count I charged conspiracy to violate the provisions of 18 U.S.C. § 794(a) and (c),*fn1 count II charged conspiracy to violate the provisions of 18 U.S.C. § 951,*fn2 and count III alleged a substantive violation against John W. Butenko alone in violation of 18 U.S.C. § 951. Both defendants were found guilty on all counts by a jury and sentenced to the custody of the Attorney General, Butenko for thirty years and Ivanov for twenty years on count I, both were given five years on count II and on count III Butenko was given a sentence of ten years, the sentences on counts II and III to run concurrently with those imposed on count I. From these judgments, appeals were taken to this court and the matter is now before us for disposition as the court permitted the government's motion to consolidate the appeals of both defendants.
Under count I, a conspiracy was charged alleging an agreement among John W. Butenko and Igor A. Ivanov, as defendants, and Gleb A. Pavlov, Yuri A. Romashin and Vladimir I. Olenev, as co-conspirators, but not named as defendants, to unlawfully and knowingly conspire and agree to communicate and transmit to the Union of Soviet Socialist Republics, hereafter referred to as "U.S.S.R.", information relating to the national defense of the United States and, more specifically, information relating to the command and control system of the Strategic Air Command of the United States Air Force. It was further alleged that this activity was done with the intent and reason to believe that the said information would be used to the advantage of the U.S.S.R. The time within which the said conspiracy continued was from April 21, 1963, up to and including October 29, 1963.
The second count of the indictment charged Butenko and Ivanov, as defendants, and Pavlov, Olenev and Romashin, as co-conspirators, though not defendants, with conspiracy to violate 18 U.S.C. § 951. It alleged that John W. Butenko, not a diplomat or consular official or cultural attache, unlawfully and knowingly acted in the United States as an agent of the U.S.S.R. without prior notification of the Secretary of State of the United States, and that defendant, Igor A. Ivanov, and co-conspirators, Gleb A. Pavlov, Yuri A. Romashin and Vladimir I. Olenev, unlawfully and knowingly did aid and abet and induce John W. Butenko to so act.
The third count charged John W. Butenko alone with unlawfully and knowingly acting as an agent of the U.S.S.R. without notification to the Secretary of State of the United States and not then being a diplomat or consular official or cultural attache, with violation of 18 U.S.C. § 951.
The pertinent facts, for background, upon which the government relied for the conviction of the two defendants, as developed at the trial, are as follows: John W. Butenko, defendant, an American by birth, was an employe of the International Electronic Company, which is a subsidiary of International Telephone and Telegraph, and it was under contract with the United States Air Force to produce a command and control system for the Strategic Air Command. The project was given the name "465-L" and was an automatic electronic system which enabled the commander of the Strategic Air Command to alert and execute all his forces, at an extremely rapid rate to develop and plan his alternatives of operation and to give up to the minute status of the total force. Part of the operation of 465-L was the data transmission sub-system, whose function it was to permit rapid communication between Strategic Air Command headquarters and the various United States Air Force bases and missile sites. The four Strategic Air Command headquarter sites were located at Offutt Air Base, Nebraska; Westover Air Base, Massachusetts; Barksdale Air Base, Louisiana and March Air Base, California. It enabled the Strategic Air Commander to communicate with his bases at the speed of light. The operational breakdown of 465-L was divided into five sections, one of which was the field operations division, and defendant, John W. Butenko, was the Control Administrator for the same. It was the responsibility of the field operations division, and accordingly his, to check on installations and requirements at the various air and missile bases and handle arrangements with the United States Air Force for the actual installation, training of Air Force personnel, spare parts provisioning, as well as taking care of maintenance and handling general administrative duties. He applied for and was given top secret clearance which gave him access to documents of top secret, confidential and unclassified nature, as he could secure them on a need-to-know basis.
From July, 1961, to July, 1963, Butenko received monthly reports updating necessary information concerning current specifications required for the 465-L program which set out the title, general subject matter, document classifications and specification numbers. The public did not have general access to the plant where Butenko was employed at Paramus, New Jersey, and the dissemination of the information concerning 465-L covered secret, confidential and unclassified information and even though some was unclassified, it could not be divulged to the general public unless permission from the Department of Defense and the Air Force was received. The contract between the Air Force and the Company was classified because parts of it were secret and top secret which made it a classified contract. The record discloses that all employes were made aware of the security requirements and were provided with a copy of the security manual which the defendant, Butenko, confirmed he had received.
The basis for the government's proof under the indictment was based largely on surveillance of the defendants and the co-conspirators by agents of the Federal Bureau of Investigation on April 21, 1963, May 26 and 27, 1963, September 23 and 24, 1963, and October 29, 1963.
Since the major contention of the appellants, both at argument and in their briefs, was that the evidence offered by the government was insufficient to support the averments in the indictment, and accordingly their convictions, it becomes necessary to recite in some detail much of the government's proof.
On April 21, 1963, the evidence showed that three agents of the Federal Bureau of Investigation conducted the surveillance, each testifying, sometimes piecemeal, as to the defendants' conduct, as one agent would have to break off surveillance and it would have to be taken up by another one, at a different position because of Soviet counter-surveillance, and the following was established: At 6:00 p.m., Agent Birch was in the Northvale, New Jersey area and took notice of a 1962 bluish-green station wagon, New York license plate No. 2N3078, with three Russian nationals seated therein, Igor A. Ivanov and Vladimir I. Olenev seated in the front seat with Gleb Pavlov, who was driving. He kept the station wagon under surveillance until it stopped at a restaurant, Lou's Hitching Post, in Closter, New Jersey, and defendant, Ivanov, and Olenev left the station wagon to enter the restaurant, and they were observed sitting together at a table for some time. The agent then noticed the station wagon for some twenty minutes making a series of turns in the area and a little later noticed it with Pavlov at the wheel on the shoulder of Piermont Road in Closter, New Jersey, at a point opposite the China Chalet Restaurant, which is in the area, and, almost at the same time, he noticed a 1961 Ford Falcon, four-door, turning from the road into and through the parking lot of the China Chalet Restaurant. This car was driven by John Butenko and the agent was able to read the license plate as New Jersey AVV871. At this point another agent picked up the surveillance and testified that a few minutes after the fourdoor Falcon sedan went into and through the parking lot of the China Chalet Restaurant, he observed the station wagon driven by Pavlov entering the parking lot of the nearby Finast supermarket. Through binoculars, he observed Pavlov leaving the station wagon and walking about twenty-five feet to the Ford Falcon, bearing license No. AVV871, which had already arrived there, and sat down in the front seat of the Falcon beside Butenko who was in the car when Pavlov entered the lot. They both sat in the front seat, talked for a short period of time and then Pavlov left the Falcon, this time carrying a light tan attache case. He then walked back to the station wagon with the attache case, re-entered it and drove out of the parking lot. When he entered the Falcon he had nothing in his hand whatsoever. The Soviet station wagon then proceeded to the lot of Lou's Hitching Post restaurant to Ivanov and Olenev, where, on two different occasions, they were seen dining together and several minutes later surveillance disclosed Ivanov and Olenev no longer in Lou's Hitching Post restaurant and also that the Soviet station wagon was not in the parking lot. The agent then saw Butenko, about ten minutes later, leave the Falcon in the Finast parking lot and walk for a few minutes to Piermont Road and then walk back to the Falcon and re-enter it. After about eight minutes more, Butenko again left the Falcon, walked slowly across the parking lot to Piermont Road where he met Pavlov and then walked out of his sight on Piermont Road, and Pavlov was not carrying an attache case. Some ten or fifteen minutes later, Pavlov and Butenko were seated together in Angelo's Closter Manor Restaurant, having dinner and conversing, and about fifty minutes later, the agent observed them paying the check and both Pavlov and Butenko left the restaurant and walked to Piermont Road, at which time surveillance was broken off. Butenko later admitted he had a tan attache case when he left home that evening but denied passing it to Pavlov.
On May 26, 1963, Agents Broderick, Mulvaney, McDougall, James, Conway and Ness, all of whom provided the testimony, observed the same Chevrolet station wagon driving back and forth past the Finast parking lot where Pavlov and Butenko had met on the night of April 21st. Ivanov was driving it with Olenev in the front seat and Pavlov in the rear. This unusual tactic was repeated three or four times. Earlier that evening, at about 5:15 p.m., Butenko was observed leaving his home in Orange, New Jersey, carrying a tan attache case and entering his car. He was observed driving from Orange, New Jersey, to Closter, New Jersey, where he arrived about 6:00 p.m., and a few minutes after he had parked his car on the Finast lot, the station wagon, now occupied only by Pavlov, entered the parking lot and then drove out, followed immediately by Butenko who proceeded to follow the station wagon. At 7:05 p.m., Pavlov and Butenko drove past the Old Hook Inn where Olenev and Ivanov, the defendant, were seen standing by the side or the road in front of the Inn. Some fifteen minutes later, Pavlov was observed driving into the parking lot of the Inn, picking up Olenev and Ivanov and, after some conversation, the three men drove out of the lot. Later, at about 8:00 p.m., Butenko's car was observed in the parking lot of the Florentine Gardens restaurant which is about an hour's drive from the Old Hook Inn in the direction of Westwood, New Jersey, and Butenko could be observed in the bar until about 10:00 p.m. During this time he was seen leaving the restaurant on various occasions, going out to his car, opening the doors, looking in the front and back seats, as well as opening the trunk and feeling inside it. Finally, he entered his car and drove toward Orange, New Jersey, when observation was broken off. When Butenko testified in his own defense, he explained that his frequent trips to the car were made in an effort to find some lozenges.
It is submitted here that his conduct was conspiratorial and that surveillance rendered any passing of information impossible but which was accomplished ...