Certiorari Denied May 23, 1977. See 97 S.Ct. 2641.
Rehearing Denied December 8, 1976 in Nos. 75-1381 and 75-1384.
Opinion for the court per curiam.
PER CURIAM:
On March 1, 1974 a grand jury in Washington, D.C. returned a 13-count indictment against seven individuals. It charged what amounted to an unprecedented scandal at the highest levels of government, for most of the defendants had held major positions in the Nixon administration. Charged were John N. Mitchell, former Attorney General of the United States and later head of the Committee to Re-elect the President (CRP), President Nixon's campaign organization for the 1972 election; Harry R. Haldeman, former Assistant to the President, serving basically as chief of the White House staff; John D. Ehrlichman, once Assistant for Domestic Affairs to the President; Charles W. Colson, former Special Counsel to the President; Robert C. Mardian, earlier an Assistant Attorney General, then an official of CRP; Kenneth W. Parkinson, hired in June of 1972 as CRP's lawyer; and Gordon Strachan, once a staff assistant to Haldeman at the White House.
Five defendants ultimately went to trial together before Judge Sirica; prior to trial the charges against Colson had been dropped after his guilty plea in another case, and the case against Strachan was severed with the Government's consent due to legal problems stemming from prior grants of use immunity.
I. THE FACTS
Evidence at trial
A. The Gemstone Plan
In the early morning hours of June 17, 1972, roughly four and a half months before the presidential election, police discovered five men inside the DNC offices carrying electronic equipment, cameras, and large sums of cash. These were no ordinary burglars. They were operating as part of a larger CRP intelligence gathering plan code-named Gemstone, and they had been in the DNC offices once before, in late May. Their mission this time was to fix a defective bugging device placed during the prior entry on the telephone of the DNC chairman; these orders had come after high officials at CRP expressed dissatisfaction with the information theretofore produced by the expensive Gemstone.
Gemstone was the brainchild of G. Gordon Liddy, CRP's general counsel, who had been hired in late 1971 with the expectation that he would develop plans for gathering political intelligence and for countering demonstrations. Tr. 2625-2628, 4507. That expectation was abundantly fulfilled. Collaborating with E. Howard Hunt, Jr., a former CIA agent whom Liddy knew well from previous ventures undertaken at White House behest,
Magruder, who had once served on Haldeman's staff, was keeping the White House informed of campaign developments, including Gemstone plans and operations, by regularly transmitting documents and information on to Strachan, Haldeman's assistant. Tr. 4511-4513, 4518, 6612-6613. Haldeman himself had learned directly about an early version of the Liddy plan when Dean reported to him shortly after the February meeting. Tr. 2635-2636.
B. The Early Stages of the Conspiracy
The five burglars arrested inside the DNC gave aliases to the D.C. police, but within hours of the break-in Liddy, who had been monitoring the operation from a safe vantage point in a nearby building, reported the capture to CRP's highest officials, then in California. He told them that one of the captured burglars was James McCord, on CRP's payroll as chief of security. In an apparent effort to avoid the appearance of any link between CRP and the burglars, Mitchell, Mardian, LaRue, and Magruder met and decided to contact the new Attorney General, Richard Kleindienst, urging him to have McCord released from jail before the police penetrated his alias. Mardian placed the call, but ultimately sent Liddy to find the Attorney General when Kleindienst could not be reached directly. Tr. 4530-4536, 6563-6565. This fitful effort foundered, however, on Kleindienst's insistence that the burglars receive no special treatment. If Mitchell wanted to talk to him about it, Kleindienst said, Mitchell should contact him directly. Tr. 5898-5909.
Aware that McCord's true identity would come to light. Mardian, Magruder, and LaRue the next day worked on a press release that would deny any CRP tie to the break-in. Tr. 4537-4540, 6565-6569. It suggested instead that McCord might have been working for clients of his private security firm. Haldeman, contacted by long-distance telephone, approved the statement and urged that the release issue as soon as possible, even though Magruder had already informed him that the break-in was "Liddy's operation." Tr. 4542-4544. The release appeared on June 18 under Mitchell's name and with his approval. J.A. 912.
Meanwhile, in Washington, White House and CRP files were being cleansed of sensitive materials relating to Gemstone. Strachan performed this function at the White House, under orders from Haldeman to remove anything embarrassing. Among the items destroyed were DNC wiretap reports and a memorandum from Haldeman to Magruder urging that the intelligence operation shift from Senator Muskie to Senator McGovern, the emerging Democratic front-runner. Tr. 2651-2653, 4547-4548. Magruder immediately ordered removal of all Gemstone materials from the files at CRP; he took them to his home upon his return from California on June 19. At a meeting that night, attended by Mitchell, Magruder, LaRue, Dean, and possibly Mardian,
Dean met with Liddy on June 19 and received a full briefing on the background of the break-in. He then imparted his own substantial knowledge to Ehrlichman, detailing the roles of Hunt and Liddy and mentioning the pledge he had received from Liddy that Liddy would keep silent. Tr. 2648-2656. There was no similar assurance regarding Hunt; Ehrlichman consequently
It was becoming increasingly clear that the grand jury investigation would eventually tie Liddy and Hunt to the break-in scheme, primarily by tracing the currency that had been found on the burglars.
Hunt presented an additional problem. He, like Liddy, apparently knew that Gemstone was a project approved at the highest levels of CRP. Like Liddy he had participated earlier in several "seamy things" for the White House, as he once described them. Tr. 3088. For example, as members of the White House Special Investigation
Thus were born the two major parts of the conspiracy: the cover story to explain the frolicsome Liddy's ability to draw so deeply on the CRP treasury, and the payment of hush money to those indicted and later convicted for the burglary.
C. The Cover Story
Magruder first suggested that CRP officials simply say that the $199,000 had gone to Liddy for security at the Republican nominating convention. He broached this story to a meeting attended by Mitchell, Mardian, LaRue, and Dean. Mardian expressed doubts that it would hold up—the sums seemed too large. Tr. 2759-2763. Thereafter Magruder tried again. He came to a subsequent meeting of the same group with the story that $100,000 was delivered to Liddy for protection of "surrogate speakers"
Magruder refined the story, reviewed it with Mitchell (who urged him to minimize Mitchell's role in running the campaign), and then rehearsed it with Dean, all in preparation for his appearance before the grand jury on August 16. His delivery of it on that date proved sufficiently persuasive that he escaped indictment—"by the skin of his teeth," according to Dean's intelligence from the investigation. Tr. 2773-2776, 4605-4612. Magruder was recalled before the grand jury in September to explain the January and February meetings that were entered in his calendar, the meetings where Gemstone was first discussed. With the assistance of Mitchell and Dean, however, he had prepared a subsidiary cover story to hide the purposes of these meetings. The first, he told the grand jury, had been cancelled, and the second related solely to the new election law. Tr. 2824-2829, 4612-4616.
Mitchell and Ehrlichman, meantime, were being careful to say nothing that might ruffle the veil the cover story had cast over Gemstone activities. Each denied to FBI agents that he knew anything about the break-in except what he read in the newspapers. Tr. 2820-2824, 5393-5402. Then on September 14 Mitchell told the grand jury that he was not aware of any clandestine CRP intelligence program, nor did he know of Liddy's illegal activities. Tr. 7094-7095. This testimony formed the basis for Mitchell's false declarations conviction under Count 4 of the indictment. 18 U.S.C. § 1623 (1970).
D. Hush Money
On June 20 or 21 Liddy met with Mardian and LaRue. He told them the full story concerning the background of the break-in, confessed his own role in the planning and execution, and explained that all those arrested would remain silent. He went on to
With the approval of Haldeman and Ehrlichman, Dean on June 28 turned to another source. He contacted Herbert Kalmbach, a long-time Nixon fund-raiser. Tr. 2740-2742. He told Kalmbach that funds were needed to meet certain CRP commitments to the burglars, and that absolute secrecy was essential. Kalmbach agreed to take on the task. Tr. 2743-2745, 6298-6308. He obtained money from LaRue (money which came from excess cash held at the CRP offices), from the chairman of the Finance Committee to Re-elect the President, CRP's finance arm, and from a private contributor. Tr. 6309-6312, 6326-6345. Before he approached the private contributor, however, he checked with Ehrlichman to be sure that Dean had authority to put this fund-raising in motion. Ehrlichman quieted his doubts and took the occasion to stress the need for confidentiality. If the operation did not remain secret, he warned, "they would have our heads in their laps."
To distribute the money Kalmbach employed a courier who devised a complex scheme of leaving the funds in pay telephone booths and airport lockers. He was responsible for delivering $187,000 to the burglars through Hunt's lawyer, Hunt's wife, Hunt himself, and Liddy. All this took place between July 1 and mid-September, when Kalmbach made his final accounting and insisted he did not want to continue. Tr. 4213-4216, 6315-6348, 6350-6356, 6477-6511. Dean and LaRue kept Haldeman, Ehrlichman, and Mitchell posted throughout on the "money problem." Tr. 2751-2754, 6620-6628, 6683-6684.
On September 15 the grand jury handed up indictments against the five burglars, plus Hunt and Liddy. No one else was implicated. Tr. 4221-4222. The initial policy of "containment," as Dean was later to call it, had proven successful. Tr. 2855-2860, 3100.
The need to channel hush money continued nonetheless. LaRue inherited Kalmbach's role. He delivered $20,000 or $25,000 to Hunt's lawyer immediately, and for a while the demands abated. Tr. 2872, 2907-2908, 6662, 6684-6685. But on November 13, only a few days after Nixon's re-election, Hunt called Colson at his White House office. With a tone of urgency he maintained that the commitments had not been met, and he reminded Colson that loyalty "is a two-way street." Colson taped the full conversation. Tr. 4250-4254, Govt. Ex. 35B, Tape Tr. 642-658. Dean made a copy of the tape and took it to Camp David, Maryland, the presidential retreat, to play it for Haldeman and Ehrlichman. They agreed that the money was Mitchell's responsibility and dispatched the Hunt tape to New York in the possession of Dean—Dean to play the tape for Mitchell and impress upon him his responsibility. Tr. 2909-2931.
Mitchell did not shoulder it alone. Instead he promptly inquired, through Dean, about the availability of a secret $350,000 fund under Haldeman's control, transferred to the White House from excess CRP funds. Haldeman approved use of part of it to meet the burglars' demands. Tr. 2935-2941, 6687-6692, 6705-6708. Those involved initially expected that the fund would be replenished through LaRue's fund-raising, but that hope soon vanished. It ultimately became necessary to transfer the entire fund to LaRue (all with Haldeman's approval), and by February he had
Money was not enough to assure silence. Hunt had decided to plead guilty and wanted a guarantee that his sentence would be short. Colson, his erstwhile friend at the White House, checked with the President and then provided some veiled assurances which Hunt took to mean he would be granted clemency at Christmas 1973. Tr. 2987-2992, 4261-4270. Hunt and four of the burglars did plead guilty. Liddy and McCord insisted on going to trial, although neither took the stand. They were found guilty, and sentencing was set for March 23, 1973. Tr. 4271. When McCord began to get restless as that date approached (he threatened in a letter to the White House that "all the trees in the forest will tumble"
E. The Cover-up Unravels
The greatest apparent threat to the conspirators' plans lay in the impending hearings of the Senate Select Committee on Presidential Campaign Activities, chaired by Senator Ervin. Dean, Haldeman, and Ehrlichman met at Rancho LaCosta in California in mid-February to plot strategy. They worried most about what the break-in defendants might say before the Committee if granted immunity. Knowing that more demands for money had been made, they decided it was essential that Mitchell meet what they all agreed was his responsibility—the providing of funds. A presidential assistant was sent to New York to tell Mitchell the results of the meeting and, once again, to remind him of his responsibility. Tr. 3032-3034.
Hunt demanded another $122,000 on March 16, in order to settle his financial affairs before sentencing. Dean relayed this word to Ehrlichman and, at his suggestion, on to Mitchell. Tr. 3086-3090. But Dean decided he had to speak with the President directly about the dangers inherent in guaranteeing the continued flow of money. On March 21, 1973 Dean thus told Nixon that there was a "cancer" growing on the presidency in the form of the endless hush money demands. He recounted all that he knew about the origin of the break-in and the subsequent payment of hush money. He guessed that future demands would come to another million dollars. Nixon replied that "you could get a million dollars. And you could get it in cash. I, I know where it could be gotten."
Haldeman, Ehrlichman, and Dean met later that day to discuss possible strategies. They agreed that Mitchell should step forward and take the full blame, thinking the prosecutors and the Senate Committee would thereby be pacified and would press no further. Tr. 3140-3141.
Mitchell, meanwhile, was meeting his "responsibility." Informed of the Hunt demand by LaRue, he directed LaRue to deliver $75,000 to Hunt's attorney that night. After this delivery Hunt, according to his own testimony at trial, repeatedly perjured himself before the grand jury. Tr. 4276-4290, 6726-6732.
The next day, March 22, Mitchell came to Washington and told the others that the Hunt problem was under control. Tr. 3208-3213, 8589-8590, 10280. Nixon, Dean, Mitchell, Haldeman, and Ehrlichman then took up a discussion that had begun the day before: the best strategy for dealing with the upcoming Senate hearings. Despite the previous day's plans, no one had the fortitude to suggest directly to Mitchell that he take the full blame and go to jail to save the Nixon presidency. Lacking that alternative, they all focused on a plan Nixon had discussed with Dean on March 17—indeed, it had been mentioned as an option for several months. Dean would make a report to the President. It would be quite general and would indicate that no one from the White House was involved. They might deliver it to the Senate Committee, but in any event it would serve as a safeguard for Nixon. Ehrlichman explained that if "some corner of this thing comes unstuck," the President could say he relied on the report.
The Dean report was never written, for on March 23 the conspiracy was dealt a heavy blow. McCord, facing sentencing, had written a letter to Judge Sirica breaking the word that the burglar's silence was the result of pressure, that others were involved, and that perjury had been committed. The letter was released to the public at the sentencing hearing that day. Tr. 3253-3254, 3259-3262. Shortly thereafter Magruder, Dean, and LaRue began to talk to the prosecutors. Tr. 3277-3280, 4639-4643, 6732-6733.
Throughout the month of April 1973 Haldeman, Ehrlichman, and Nixon met frequently at the White House trying to decide how to respond to the new developments.
This scenario also dealt tentatively with the second problem— explaining the hush
When Haldeman was called before the Senate Select Committee in late July and early August 1973, he carried out the scenario laying all blame on Dean. He told the Committee that no one at the White House, except Dean, knew that the payments to the burglars were for "hush money" before March of 1973. He said Nixon discussed with Dean on March 21 the possible payment of a million dollars to the burglars, but he insisted that Nixon had followed that up by saying "it would be wrong."
In early May Ehrlichman told the grand jury that he had no recollection of Dean's having told him of Liddy's involvement in the break-in during the first weeks after the burglary. He also testified that he had spoken generally with Kalmbach about Kalmbach's fund-raising efforts, but he denied all recollection of any mention of the purposes the money was to serve, and he claimed no memory of telling Kalmbach to keep the efforts secret. Tr. 7180-7192. For this testimony he was charged in Counts 11 and 12 with making false material declarations, 18 U.S.C. § 1623 (1970), and the jury found him guilty of both offenses.
Mitchell too, although he had not been privy to most of the April meetings where scenarios were devised, advanced the cover-up through his testimony before the grand jury and the Senate Committee in the spring and summer of 1973. On April 20 he denied before the grand jury any recollection of having been told of Liddy's confession to LaRue and Mardian. Tr. 7158, 7166-7167. Before the Senate Committee in July he claimed not to have heard of Gemstone as of June 19, 1972, and he denied that there was any mention of destroying documents at the meeting he held that evening with Magruder, Mardian, Dean, and LaRue. Tr. 7177-7180. These statements founded Counts 5 and 6 of the indictment, charging false declarations, 18 U.S.C. § 1623 (1970), and perjury, id. § 1621, respectively. Mitchell was convicted under each.
II. PRETRIAL PUBLICITY
The unveiling of the conspiracy which is the central element of this case received extraordinarily heavy coverage in both national and local news media. In addition, the media fully covered allegations of wrongdoing at the upper levels of the Nixon Administration in matters unrelated to the Watergate break-in. Appellants contend that this pretrial publicity was so pervasive and so harmful to them that it must be assumed they could not receive a fair adjudication of the charges against them at the time and in the place at which they were tried. Alternatively, they contend that the voir dire of veniremen
A. The Motions for Continuance or Change of Venue
It is fundamental that "the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, `indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). To be "indifferent" a juror need not be ignorant:
Id. at 722-723, 81 S.Ct. at 1642 (emphasis added). Accord, Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).
Irvin establishes "a common-sense standard" of juror qualification. United States v. Caldwell, 178 U.S.App.D.C. 20, 33, 543 F.2d 1333, 1346 (1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). In keeping with that approach, a defendant who claims he was denied a fair trial because the jury was not sufficiently "indifferent" generally must sustain that claim "`not as a matter of speculation but as a demonstrable reality.'" United States ex rel. Darcy v. Handy, 351 U.S. 454, 462, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (1956), quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942).
The Supreme Court has reversed a conviction because it presumed that pretrial publicity had made a fair trial impossible only in the case of Rideau v. Louisiana, 373 U.S. 723,
Id. at 726, 83 S.Ct. at 1419 (emphasis in original).
"A confession or statement against interest is the paradigm" of "facts that strongly implicate an accused * * *." Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1332-1333, 96 S.Ct. 251, 255, 46 L.Ed.2d 237 (1975) (Blackmun, Circuit Justice). We have carefully reviewed the "Watergate" articles submitted by appellants, and we find that the pretrial publicity in this case, although massive, was neither as inherently prejudicial nor as unforgettable as the spectacle of Rideau's dramatically staged and broadcast confession. It is true that some of the pieces contained in the extensive collection of articles gathered by appellants are hostile in tone and accusatory in content. The overwhelming bulk of the material submitted, however, consists of straightforward, unemotional factual accounts
The federal courts can, of course, establish more rigorous standards for their own governance than those minimum guarantees of fairness imposed on the state courts by the Constitution. See, e. g., Ristaino v. Ross, 424 U.S. 589, 597 & nn.9-10, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Murphy v. Florida, supra, 421 U.S. at 797-798; id. at 804, 95 S.Ct. 2031 (Burger, C. J., concurring); cf. United States v. Williams, 523 F.2d 1203, 1209 n. 11 (5th Cir. 1975). We believe, however, that it is inappropriate to attempt to formulate a supervisory power standard for concluding that a fair jury cannot be selected. Except in the most extreme cases, like Rideau,
For these reasons we hold that the District Court was correct to follow this
B. Selection of the Jury
Conduct of the voir dire is a matter left primarily to the trial judge:
United States v. Robinson, 154 U.S.App.D.C. 265, 269, 475 F.2d 376, 380 (1973) (citations omitted). See, e. g., United States v. Caldwell, supra, 178 U.S.App.D.C. at 32, 543 F.2d at 1345; United States v. Liddy, 166 U.S.App.D.C. 95, 101, 509 F.2d 428, 434 (1974) (en banc); United States v. Nix, 465 F.2d 90, 96 (5th Cir.), cert. denied, 409 U.S. 1013, 93 S.Ct. 455, 34 L.Ed.2d 307 (1972). Our review, while based on a thorough study of the record, is limited accordingly.
The voir dire in this case lasted eight days and is recorded in over 2,000 pages of transcript. The first phase was devoted to identifying veniremen who would not be able to be sequestered for the expected length of the trial. This process resulted in elimination of 170 of the 315 veniremen. The remainder were then asked general questions concerning their relationships with any of the individuals or organizations involved in the case. Eighty-five veniremen remained following those questions. After questioning two individually,
Since the answers to the court's questions were met with appropriate follow-up questions, the individual voir dire interrogation was not uniform.
After determining the venireman's degree of interest in and exposure to the case, the court inquired whether he had formed or expressed an opinion of the guilt or innocence of any defendant. In addition, the judge determined whether the venireman knew of Ehrlichman's trial and conviction in the "plumbers" case,
Appellants claim that this interrogation was inadequate. Their principal complaint
Following an objection by the Government, the District Court decided not to ask these questions. The positions of the parties and the court's reasoning emerge clearly from the dialogue with the lawyers:
Tr. 486-489.
We agree with the District Court that the questions requested by appellants would have been unreasonable in the circumstances of this case. Appellants were not seeking to discover whether some particular piece of highly prejudicial, inadmissible information had made an impression on the members of the venire.
We also find unconvincing appellants' attempts to identify legal support for their claimed right to ask "content" questions. Appellants rely principally on Section
Both of the cases relied on by appellants refer to the ABA Standards. In Silverthorne the voir dire relating to pretrial publicity was both minimal
The extensive voir dire in the instant case, with its detailed inquiry into the sources and intensity of the veniremen's exposure to Watergate publicity, is a far cry from the minimal questioning which took place in Silverthorne and Dellinger. Thus on their facts those cases do not suggest that the voir dire here was insufficient. Moreover, the language in Silverthorne on which appellants have seized appears to have been intended as an adoption of the ABA Standards. As we have shown, those Standards do not require that "content" questions be asked in the circumstances of this case. Rather, the Standards recognize that, as the Seventh Circuit said in Dellinger, "the court could probe the impact of pretrial publicity without requiring the veniremen to describe what they had heard." 472 F.2d at 377. That is what the District Court did in this case.
As the Supreme Court stated in Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 565, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683 (June 30, 1976), "[P]retrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial." In this case, moreover, it is clear that the District Judge took particular care — during
Our conclusion that the voir dire was adequate does not end our review of the jury selection. As is our duty, we have reviewed the record to ascertain for ourselves whether appellants were tried by an unbiased jury capable of basing its verdict solely on the evidence introduced at trial.
III. EHRLICHMAN'S MOTION FOR SEVERANCE
Appellant Ehrlichman contends that his motion for severance under Rule 14, filed May 1, 1974, was improperly denied. In his motion he claimed that severance was required because his co-defendants would assert defenses inconsistent with, and hostile to, his own. As he puts it, Mitchell and Haldeman asserted that their contacts with then President Nixon were lawful and proper in every respect, while "[i]n direct contrast, Appellant Ehrlichman sought to establish that his contact with Mr. Nixon was lawful, but that he had been misled by the former President."
While there are situations in which inconsistent defenses may support a motion for severance, the doctrine is a limited one. As set forth in Rhone v. United States, 125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (1966), the governing standard requires the moving defendant to show that "the defendants present conflicting and irreconcilable defenses and there is a danger that the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty." Application of this standard, which is for the District Court in the first instance, and reviewable here only for abuse of discretion, requires that the accounts of co-defendants be not merely divergent from one another but indeed "so contradictory as to raise an appreciable danger that the jury would convict solely on the basis of the inconsistency." To warrant a severance, in short, the accounts of co-defendants must be "on a collision course." United States v. Bolden, 169 U.S.App.D.C. 60, 69, 514 F.2d 1301, 1310 (1975).
Ehrlichman's claim that the defenses of Haldeman and Mitchell were in "direct contrast" to his assertion that he should be judged innocent because he had been misled by former President Nixon does not meet this standard. The defenses of the co-defendants were simply not at the requisite level of conflict. The jury could have accepted or rejected both. "[T]he mere presence of hostility among defendants or the desire of one to exculpate himself by inculpating another have both been held to be insufficient grounds to require separate trials." United States v. Barber, 442 F.2d 517, 530 (3d Cir.), cert. denied, 404 U.S. 958, 92 S.Ct. 327, 30 L.Ed.2d 275
Ehrlichman stresses the difference between his claim and Haldeman's concerning their meeting with CIA representatives on June 23, 1972. Each contended his purpose in attending the meeting was lawful. Haldeman had to overcome the tape recording of his earlier June 23 meeting with then President Nixon with respect to the need to use the CIA to "derail" the FBI investigation because, in Haldeman's words, "the FBI is not under control."
More broadly, Ehrlichman is claiming that he was prejudiced because there was strong evidence implicating his co-defendants. There are instances where severance is necessary to overcome gross disparity in the weight of the evidence which might tend to prejudice a defendant involved in a relatively "inconsequential part of the trial."
IV. DISCOVERY BY EHRLICHMAN
Months ahead of trial, Ehrlichman and other defendants filed motions for extensive discovery. Ehrlichman's demand included a large volume of documentary matter in the possession of the Special Prosecutor or one of his investigative arms. It also embraced additional materials, some held by the White House and others by a congressional subcommittee.
In his response to the motions the Special Prosecutor agreed to adduce a great deal of what was sought. While disclaiming responsibility for items beyond his control, he also represented that he would search for and try to obtain for the defendants all possibly exculpatory evidence in the custody of executive and congressional bodies. The District Court temporarily withheld action on the motions in order to facilitate voluntary efforts by the parties, leaving open to each defendant the opportunity to contend individually for additional discovery if dissatisfied with the outcome. The arrangement seems to have worked quite well, for the Special Prosecutor's production was massive.
Ehrlichman, however, continued to press his motion, which the District Court eventually denied.
Our attention has not been directed to any arguably helpful information possessed by the Special Prosecutor,
Ehrlichman's demand for the White House files fell far short of legal requirements.
Ehrlichman's discovery motion, aptly described by the District Court as a "sweeping and broadly phrased" endeavor to secure "a tremendous array of materials,"
Beyond these considerations, the White House files may well have an extra dimension. Ehrlichman, who is in position to know, makes no claim that the files do not reflect intercommunication and other interaction with President Nixon,
Turning now to Ehrlichman's complaint in reference to congressional materials, we find that his discovery motion was similarly flawed. By no measure could his call for virtually everything related to the oncoming trial
V. ALLOCATION OF PEREMPTORY CHALLENGES
Fed.R.Crim.P. 24(b) provides that "[i]f the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges." It further provides that "[i]f there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly." The defendants requested 15 additional peremptory challenges, for a total of 25. The District Judge awarded them five extra challenges to be exercised individually, one to each defendant. Together with the mandated 10 challenges, to be exercised jointly, this award gave the defendants a total of 15 challenges. The judge indicated his unwillingness to grant the request in full because of the imbalance it would create between prosecution and defense. After noting that there is no power to award the Government extra challenges unless all defendants agree to the award, the District Judge indicated that if such agreement was forthcoming he would be willing to increase both the Government's and the defendants' totals. When no agreement was reached, the totals remained at six and 15 respectively. J.A. 509; Tr. 698.
Appellants' objection to the treatment of peremptory challenges is easily disposed of. In multiple defendant cases the award of additional challenges is permissive rather than mandatory, and rests in the trial judge's sound discretion. See, e.g., United States v. Mayes, 512 F.2d 637, 644 (6th Cir.), cert. denied, 422 U.S. 1008, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975), and 423 U.S. 840, 96 S.Ct. 69, 46 L.Ed.2d 59 (1975); United States v. Williams, 463 F.2d 393, 395 (10th Cir. 1972); United States v. Crutcher, 405 F.2d 239, 245 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); 2 C. Wright, Federal Practice and Procedure, Criminal § 386 (1969). The trial judge's decision to grant the defendants' request in part — providing them with two and one-half times the number of challenges held by the Government — reflects his awareness of the problem of pretrial publicity in this case. His refusal to grant that request in its entirety reflects a legitimate concern with the wisdom of providing one side with a far greater number of challenges than the other.
Indeed, a proposal to amend Rule 24(b) has been approved by the Advisory Committee on Rules and Practice of the Judicial Conference of the United States, the Judicial Conference itself, and most recently by the Supreme Court,
Appellants also complain that the trial judge's unwillingness to award more than five additional challenges unless the defendants agreed to permit the Government additional challenges punished them for exercising their "right" to foreclose the Government from obtaining more than six challenges. We think this contention is without merit. The trial judge's responsibility is to use his discretion in a way that he thinks provides a fair balance between the parties. Apparently, he believed that a ratio of 15 to 6 was fairer than one of 10 to 6; that permitting defendants more than 15 and the Government more than six challenges would be even fairer, but required defendants' approval; and that in the absence of such approval, a ratio of 15 to 6 was fairer than a ratio of 25 to 6. Such a judgment on his part lies well within the scope of his discretion.
Appellants also take exception to the system established for exercising the peremptory challenges, whose features they have succinctly summarized:
Br. for Mitchell at 116; see J.A. 520.
Appellants' principal objection to this scheme seems to be that at the end of the jury selection process, when the defense was left with two individual challenges and the Government with one challenge, the defendants thought it more advantageous to forfeit their challenges than to exercise them and permit the Government to then exercise its challenge, thereby reaching down the predetermined list to a venireman allegedly favorable to the prosecution. Assuming arguendo that appellants' characterization of this strategic decision is accurate, we find nothing prejudicial about their having been required to face it.
VI. CONTINUANCE FOR NIXON TESTIMONY
Ehrlichman argues on behalf of all three appellants that the trial judge erred in denying their motions for a continuance until former President Nixon was physically well enough to be deposed. We find the contention without merit.
A. Background
On September 4, 1974 Ehrlichman issued a subpoena to Mr. Nixon, returnable on September 30, the day before trial was to begin. Two weeks later the Government
At a pretrial conference held on September 24 Herbert Miller, Nixon's lawyer, reported that his client had been hospitalized the preceding day for tests. Miller requested that the subpoenas be stayed for two weeks until the tests were completed and he had an opportunity to make any appropriate motions regarding the subpoenas. With the assent of all parties it was agreed that Miller would report to the court on Nixon's health by October 3rd. Tr. of Sept. 24th hearing at 7-11.
Three days after the conference, Ehrlichman moved, pursuant to Fed.R.Crim.P. 15, for authorization to depose Nixon, for a severance, and for a continuance until Nixon was well enough to be deposed and for at least two weeks thereafter to conduct the deposition. Doc. 353. In this motion Ehrlichman noted that Nixon had informed the court that he was suffering from "thrombophlebitis, and as a result requires present hospitalization and treatment." Ehrlichman then asserted that Nixon's condition had been "complicated by the lodging of a blood clot in [his] lung, thereby precluding travel to the District of Columbia at this time." Reciting 30 areas in which Nixon was said to have "sole and personal knowledge . . . to which he can be expected to testify," Ehrlichman contended that "the interests of justice compel . . a severance, continuance and deposition." The Government again opposed the motion, arguing that it was still premature to conclude that Nixon would be unavailable to testify or that his deposition should be taken. Doc. 354. Ehrlichman's motion was denied orally at the start of trial. Tr. at 3.
As agreed at the pretrial conference, on October 3rd Miller filed an affidavit reporting on Nixon's health. Miller's affidavit, based on a telephone conversation with Nixon's physician, stated that the testing of Nixon had been suspended shortly after he had been admitted to the hospital because a pulmonary embolus had been discovered; that a test performed on September 30 indicated the embolus was resolving itself; and that tests were resumed on the 30th and were to be completed by October 4th, at which time Nixon would be released from the hospital. The affidavit went on to state that for 3-6 months Nixon would be receiving anticoagulant medication, and that for an indefinite period of time until his condition stabilized Nixon would be required to avoid prolonged sitting, standing, or walking and any possible trauma.
Ehrlichman replied to the motion to quash by renewing his motions for leave to depose, a severance, and a continuance, again noting and expanding on the issues on which Nixon's testimony was needed. Doc. 396. Haldeman filed a separate motion with the same requests, and listed 34 areas as to which Haldeman needed Nixon's testimony. Doc. 371. The Government did not respond to the appellants' motions, but opposed Nixon's motion to quash on the ground that the supporting affidavits failed to establish that Nixon would be unable to testify under any conditions at any time during the trial. Doc. 386. The Government argued that at most the court should appoint an independent panel of doctors to
On October 17 a hearing was held on the motion to quash.
On November 7, 1974, Nixon's counsel filed his report. Doc. 452. It stated that nine days earlier Nixon had undergone surgery and experienced post-operative shock, hemorrhaging, and other complications. He had been on the critical list for a week, and was expected to be hospitalized for an additional ten days to two weeks. Thereafter, he would be precluded from "any activity requiring substantial mental or physical effort . . . [for] two or three months."
On November 13, 1974 Judge Sirica appointed a panel of three physicians to "make investigation" concerning Nixon's condition and ability to testify. Doc. 472. On November 29 the panel submitted its unanimous report, estimating that, barring further complications, Nixon would be able to travel to Washington to testify by mid-February, to testify near his home in earlier February, and, starting January 6, would be able to be deposed in no more than two well-spaced daily sessions of no more than one hour each. Doc. 511.
After receiving the medical report, all three appellants filed motions to depose Nixon and to continue the trial until that was possible. Docs. 516, 524, 525, 526. Haldeman and Ehrlichman repeated the statements from their earlier motions concerning their need for Nixon's testimony; Mitchell listed a number of areas as to which Nixon's testimony allegedly would be vital to Mitchell's defense. Each appellant waived his right to a sequestered jury during the requested continuance. Docs. 524, 526, 527. Co-defendant Mardian filed a statement opposing the continuance and the suggestion to unsequester the jury, Doc. 529; co-defendant Parkinson opposed only the latter, Doc. 530. Mr. Nixon took no position other than to note that even if he were well enough to be deposed starting January 6, he would not be well enough to prepare prior to that date, and would need a "substantial" amount of time to do so. Doc. 532. The United States opposed the motions of all three appellants. Doc. 524.
In an opinion dated December 5, 1974, discussed infra, the court denied the motions.
Defendants sought a continuance here to enable them to produce an unavailable witness who, they alleged, could offer evidence favorable to the defense. Criminal defendants plainly have a substantial interest in being able to present the testimony of such witnesses to the jury. Indeed, this interest implicates constitutional values, since the Sixth Amendment right to compulsory process is "in plain terms the right to present a defense."
From the decisions of the Supreme Court and of this and other circuit courts, at least some of the factors that should be considered by district judges in evaluating the competing interests can be readily discerned. First, the court must assess the likelihood — as it appears from defendant's motion for a continuance, his supporting papers, and from anything else in the record — that defendant will be able to and will produce the missing evidence if the continuance were granted.
C. Application of Law to Facts
In denying the final requests for a continuance,
The District Court's exclusive focus on the burdens of a continuance and the likely significance of Nixon's testimony was entirely proper. Appellants were not responsible for Mr. Nixon's absence, and thus could not be taxed for lack of diligence in seeking a continuance. And although there was no guarantee that Nixon would recover his health so as eventually to be able to testify, there was nothing in the medical reports suggesting the contrary. Thus the dispositive question before the District Court was whether the burdens of granting an indefinite continuance outweighed the likely value of Nixon's testimony.
The District Court's conclusion that securing Nixon's testimony would have required a lengthy delay is abundantly supported by the record. The court relied on three factors in reaching its conclusion. First, it predicted, based on representations made to it by counsel, that all the evidence
That granting a continuance of this duration would have entailed significant risks and costs is plain. First, leaving the case in limbo might have made it difficult for the court and the parties opposing the continuance — Mardian and the Government — to carry on their normal business during the continuance. Second, because of the public attention that would have been focused on the adjourned trial (and perhaps on the jurors), and because neither the Government
The question before us, then, is whether, in light of these costs, the District Court abused its discretion in concluding that appellants had failed to show that Nixon's testimony would be of such importance as to warrant a continuance. After carefully reviewing the proffers of all three appellants, we conclude it did not. We reach this conclusion for three reasons.
First, not only was there no assurance that Nixon's testimony would be favorable to the defense, as the District Court observed,
Second, Nixon's testimony on many of the topics listed in appellants' proffers would have been cumulative of other evidence which was or could have been produced, as the District Court also noted. In several instances one or more appellants sought Nixon's testimony regarding conversations Nixon had with persons who were neither defendants nor unindicted co-conspirators;
Third, Nixon could not have disputed the central propositions in the Government's case, and thus his testimony would have been of marginal significance. The Government's case against the appellants for the most part rested on evidence of their participation in discussions and decisions outside Nixon's presence from January 1972 to March 1973 and on tape recordings of their participation in discussions and decisions within his presence starting in March 1973. Nixon could not have directly contradicted testimony that Mitchell approved the Gemstone plan, see pages ___-___ of 181 U.S.App.D.C., at 51-52 of 559 F.2d supra; suggested that files be burned, id. at ___ of 181 U.S.App.D.C., at 53 of 559 F.2d; participated in the launching of
The limited significance of Nixon's testimony is clearly revealed by those portions of appellants' proffers that are specific. Because of the large number of topics listed on the proffers, we discuss only general problems with illustrative examples.
(a) In a few instances a topic listed on one of the proffers does not even appear relevant, let alone significant, to the issues involved in the trial. For example, Ehrlichman indicated he wanted Nixon to testify that Ehrlichman had urged the President in 1972 to discontinue prosecution of Daniel Ellsberg, and that Nixon had directed Ehrlichman in April 1973 to meet with the judge presiding over the Ellsberg trial. The proffer does not indicate why such testimony would be relevant, and Ehrlichman did not testify about these matters when he was on the witness stand.
(b) In a great number of instances Nixon's testimony was desired to establish a point not in contention. For example, Mitchell indicated he wanted Nixon to testify that "matters discussed by Mr. Nixon with Mr. Colson" — presumably relating to clemency — and "matters discussed with Messrs. Dean, Haldeman and Ehrlichman on March 21, 1973" — presumably relating to the payment of hush money — were not "conveyed by Mr. Nixon to Mr. Mitchell." But the Government never claimed otherwise. Rather, it showed that Mitchell was made aware by Dean that veiled assurances of clemency had been given to Hunt, see Tr. 2992-2993, 2998-2999, and by Dean and LaRue of Hunt's March, 1973 money demands, Tr. 3086-3090, 6728-6732. That Mitchell may not have been informed of the details of Nixon's conversations is of little consequence.
(c) In largest measure, appellants sought Nixon's testimony to provide indirect support to their defenses. For example, Haldeman and Ehrlichman each indicated they wanted Nixon to testify that he instructed them to speak to Dean about the Nixon Estate plan in June, 1972; not to make offers of clemency or to limit the FBI investigation; not to spend time on Watergate; and to meet at LaCosta to discuss strategy regarding the Senate Watergate Committee. Again, the Government did not contend that contrary instructions had been given. But Haldeman and Ehrlichman apparently desired this testimony in the hope that the jury would infer that they talked to Dean only about the Nixon Estate in June 1972, talked only about the Watergate Committee at LaCosta, and did not violate Nixon's instructions regarding work on Watergate, clemency, or the FBI. The weakness of these inferences is patent.
In sum, we conclude that the District Court did not abuse its discretion in denying the requested continuance. Accordingly
VII. EVIDENCE OF THE ELLSBERG BREAK-IN AND EHRLICHMAN'S INVOLVEMENT
Both Ehrlichman and Haldeman contend that the trial court committed error in allowing the Government to introduce evidence that Ehrlichman had authorized an illegal break-in at the offices of Dr. Lewis J. Fielding, a Beverly Hills psychiatrist, for the purpose of examining the psychiatric records of one of his patients, Daniel Ellsberg, who had misused some classified defense documents.
A. The Claim of Prejudice
Objection was made to the introduction of evidence of the Ellsberg break-in on the ground that the prejudice engendered by the admission into evidence of such prior acts of criminal misconduct outweighed their legitimate probative value. Ehrlichman br. at 45-53a; Haldeman br. at 4. Rejecting this objection, the court admitted the evidence as being probative of motive. The Government now contends it was properly admitted on two grounds:
Govt. br. at 222. As Mr. James Neal, the Government prosecutor, explained to the court in arguing for the admission of the evidence in question:
Tr. 2298-2299.
The general rule in this country is that evidence of other crimes is admissible to show, inter alia, motive, so long as its probative value outweighs its prejudicial effect.
Appellants list four factors which, they contend, made this evidence unduly prejudicial and therefore inadmissible: (1) the "tenuous" connection between the Ellsberg affair and the Watergate cover-up;
B. Application of the Governing Principles
As regards the first source of claimed prejudice, the "tenuous" connection between the Ellsberg-Fielding break-in and the Watergate cover-up, we find evidence introduced at the instant trial which could well have allowed the jury to find a definite link between the two events. It could be concluded from the Hunt Memorandum, Tr. 7554-58, and the payment of money thereafter that concealing responsibility for the Ellsberg break-in was part of the motivation for the payment of money to those involved in Watergate.
Evidence of the Ellsberg-Fielding break-in also casts light upon the meaning of Hunt's threat to reveal the "seamy things" he had done for the White House if he were not paid certain sums of money. This incident came about during Hunt's conversation with co-conspirator Colson, which was
In addition, the evidence of Ehrlichman's connection to the Ellsberg break-in was also probative on the issue of whether he had consistently urged full disclosure about Watergate as he contended.
Second, Ehrlichman asserts that the prosecution presented an "avalanche" of evidence concerning the Ellsberg operation which in effect resulted in his retrial and reconviction on the Ellsberg charges.
Third, we find no impropriety in the introduction and reading of the August 11 memorandum from Krogh to Ehrlichman to the jury. Tr. 7668-7672. Given that there was evidence linking the Ellsberg-Fielding break-in to the Watergate coverup, it was certainly appropriate to introduce the one piece of documentary evidence which clearly tied Ehrlichman, who was accused of the cover-up, to the California break-in. It is exactly because the memorandum "went to the very heart of the Government's [Ellsberg break-in] case and was one of the principal instruments employed to bring about Mr. Ehrlichman's conviction," Ehrlichman br. at 53, that its use was so apposite. The alternative would have been the use of more speculative and less probative evidence which would undoubtedly have prejudiced appellants far more.
Finally, we reject the argument that our holding in Bailey, supra, was violated.
We therefore conclude that the probative value of the Ellsberg-Fielding break-in evidence far outweighed its prejudicial effect,
VIII. USE OF MITCHELL'S TESTIMONY BEFORE CONGRESSIONAL COMMITTEES
Appellant Mitchell contends that the trial court committed constitutional error in permitting the Special Prosecutor to use testimony given by Mitchell under subpoena to the Senate Select Committee in July, 1973 and to the House Judiciary Committee in July, 1974. Mitchell objects to the use of this testimony as a basis for the charge of perjury to the Senate Committee contained in Count 6 and in cross-examination on critical aspects of the other charges.
1. Mitchell relies principally on Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and several cases in the lower courts extending the safeguards of Miranda to putative defendants called before the grand jury,
a. The Miranda warnings were developed in response to the compulsion believed inherent in police custodial interrogation. The Supreme Court has yet to decide whether they extend to the context of a grand jury inquiry. Four Justices in United States v. Mandujano, 425 U.S. 564, 96 S.Ct. 1768, 48 L.Ed.2d 212 (1976), deemed the transplanting of the Miranda warnings from the original context of "extra-judicial confessions or admissions procured in a hostile, unfamiliar environment which lacked procedural safeguards" to the "wholly different" context of "questioning before a grand jury inquiring into criminal activity under the guidance of a judge," to be "an extravagant expansion never remotely contemplated by this Court in Miranda * *." 425 U.S. at 579, 580, 96 S.Ct. at 1778. Earlier, in Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976), a unanimous Court declined to require that Miranda warnings be given in a noncustodial criminal tax investigation even though the "focus" of the investigation was on the taxpayer when he was interviewed. The Court made clear that "it was the custodial nature of the interrogation which triggered the necessity for adherence in the specific requirements of its Miranda holding," and that a person does not become the "focus" of a criminal investigation for purposes of triggering Miranda until he "`has been taken into custody or otherwise deprived of his freedom of action in any significant way.'" 425 U.S. at 347, 96 S.Ct. at 1616.
c. Seeking to avoid the impact of these rulings, Mitchell argues that in both cases the Court specifically found that the confessions used for impeachment purposes were neither involuntary nor coerced,
Mitchell's "dilemma" simply does not fit the pre-Miranda "coerced confession" rulings. Mitchell was represented by counsel throughout the proceedings. He was not subjected to any physical ordeal. The hearings were held in public. The inquiring congressmen repeatedly indicated that they would abandon any question that met with invocation of the self-incrimination privilege. The House Judiciary Committee informed Mitchell in advance that his appearance would not be required if he announced an intention to rely on the Fifth Amendment. There was absolutely no effort made to overcome Mitchell's will and produce statements not "freely self-determined."
2. We have met Mitchell on his home ground, pointing out that even if his Fifth Amendment rights had been violated by the Committee's questioning it was permissible to use his non-coerced testimony in the perjury count and for impeachment purposes.
But we would not want in such an important case to leave the implication that we accept Mitchell's claim that the Self-Incrimination Clause embodies an absolute right of silence. Appellant has mistaken what is a narrow exception, born of very special circumstances, for the general rule.
a. Mitchell was merely required to follow the usual path for asserting the privilege against self-incrimination. Generally the privilege must be claimed to be respected. The reason for this is that government acting within its proper sphere and by proper process — Mitchell does not argue that the committees were acting otherwise — has a right to everyone's testimony, and that the Fifth Amendment privilege "addresses only a relatively narrow scope of inquiries," which the individual being questioned is in the best position to identify. "Unless a witness objects a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make timely assertion of the privilege. If, instead, he discloses the information sought, any incriminations properly are viewed as not compelled." Garner v. United States, 424 U.S. 648, 655, 96 S.Ct. 1178, 1183, 47 L.Ed.2d 370 (1976). See also United States v. Monia, 317 U.S. 424, 439-442, 63 S.Ct. 409, 87 L.Ed. 376 (1943) (Frankfurter, J., dissenting).
This principle, often stated by the Court, and the operative principle of many decisions,
b. The general rule is subject to a few narrowly delineated exceptions where the privilege against self-incrimination need
The first category of exception is exemplified by the Miranda decision, involving situations so rife with coercion as to "deny an individual the ability freely to choose to remain silent" and where "the inquiring government is acutely aware of the potentially incriminatory nature of the disclosures sought."
We are not called upon to anticipate whether in the review already granted the Supreme Court will affirm lower court rulings extending Miranda to the grand jury situation. These rulings are based on the premise that there is coercion in the grand jury situation, not overcome by the judicial supervision available, since the witness under subpoena obligation may not be aware that he is a potential defendant, and therefore not on alert to avoid incriminating disclosures, and he does not have a lawyer at his side during the questioning.
The purpose of the grand jury inquiry is to obtain information about criminal activities in order to determine whether to return an indictment and launch a criminal proceeding. Although the grand jury's focus may extend beyond the particular witness, it has been found "smack[ing] of entrapment" to "bait" a witness already suspected of being guilty of a precise offense into either committing perjury or offering incriminating testimony.
c. The second exception from the general rule requiring assertion of the privilege involves situations where the very invocation of the privilege is likely to result in criminal sanctions. We do not require the defendant in a criminal trial to take the stand and assert the privilege in open court, and indeed we do not permit comment on the failure to testify in one's own defense,
Mitchell cannot claim to have been under a similar compulsion to forego assertion of the privilege. While his assertion might lead to public speculation or opprobrium, the public would not be in a position to impose or precipitate criminal sanctions, and hence failure to assert the privilege is not justified in law.
It is only in the exceptional case that the privilege can be relied upon without claiming
We find no error in the Special Prosecutor's use of Mitchell's testimony before the committees as the basis for the perjury count and in impeachment by contradiction of Mitchell's assertions on the stand.
IX. HALDEMAN'S PERJURY CONVICTIONS — THE EVIDENCE AND THE INSTRUCTIONS
In addition to finding the defendant Haldeman guilty of conspiracy and obstruction of justice, the jury also found him guilty on three counts of perjury — Counts 7, 8, and 9 — in violation of 18 U.S.C. § 1621 (1970). All of these offenses were allegedly committed from July 30 to August 1, 1973, when he testified before the Senate Select Committee on Presidential Campaign Activities (the Ervin Committee). Count 7 charged Haldeman with falsely testifying that, prior to March 21, 1973, no one in the White House other than John Dean had any idea that hush money was being paid to the Watergate burglars. Count 8 alleged that Haldeman committed perjury in testifying that he had listened to a tape recording of the President's March 21, 1973, conversation with Dean and that he (Haldeman) was "absolutely positive that the tapes" recorded the President as saying, "We can [raise $1,000,000 for hush money] * * * but it would be wrong." Count 9 alleged that perjury was committed when Haldeman told the Senate Committee that, during a March 21, 1973, meeting among himself, the President, and John Dean, "I don't believe there was any reference to [Jeb] Magruder committing perjury."
A. Count 7: The Two-Witness Rule
Haldeman first contends that the trial court erred in not explaining the meaning of "corroboration" in connection with the "Two-Witness Rule" applicable to perjury offenses.
Tr. 12390-12391.
Haldeman contends that this instruction constitutes "reversible error on count Seven" because the trial court failed to define "corroboration." Haldeman br. at 137. His apparent point is that the court should have additionally instructed that "corroborative evidence necessary to sustain a perjury conviction is that which tends to show the perjury independently."
J.A. 12391 (emphasis added). We are of opinion that this instruction was adequate and appellant's objection to it is not well taken.
A second argument raised by Haldeman is that, even assuming an adequate instruction on corroboration, there was no "independent corroborating evidence" of the falsity of this testimony. The main proof of perjury is John Dean's testimony that Haldeman was aware at the very outset of the conspiracy that money was being paid to the break-in defendants to keep them silent. See, e. g., Tr. 2741-2742. The "corroborating" proof of this, however, is said to be only allegations by Dean that Haldeman heard a tape recording of a conversation between E. Howard Hunt and Charles Colson in which Hunt complained that the Administration's promises of money payments were not being fulfilled. Tr. 2909-2912, 2920-2923, 2928-2931, 4250-4254; Tape Tr. 646-647, 651.
If this were the only corroborating evidence, it would be insufficient, for it is not "independent" — it is only Dean affirming Dean. But contrary to Haldeman's argument, there is independent evidence to support Dean's allegations in this regard. Several of the taped conversations involving Haldeman and the President, which were heard by the jury, could reasonably be interpreted to include admissions by Haldeman of knowledge, prior to March 21, 1973, of hush money payments to the Watergate break-in defendants. For example, on April 14, 1973, the President, Haldeman, and Ehrlichman discussed Dean's June 28, 1972, request that Herbert Kalmbach be asked to raise hush money:
Tape Tr. 456 (emphasis added). In another conversation on March 22, 1973, between Haldeman and the President, Haldeman essentially admitted approving transfer of $350,000 from a fund under his control for use to pay off the Watergate break-in defendants.
Therefore, we reject both the challenge to the instructions and the challenge to the evidence under Count 7, and affirm Haldeman's conviction on this count.
B. Count 8
The next attack on the instructions by Haldeman relates to his conviction on Count 8 — the "but it would be wrong" count. This charge arises from the false statement to the Senate Select Committee that, on March 21, 1973, during a meeting among Haldeman, the President, and John Dean, the President discussed the possibility of raising hush money but concluded by saying "we can do that but it would be wrong." Indictment, Count 8, ¶ 4, J.A. 141-143. Haldeman complains that the jury was not instructed on the theory of his defense to this charge, although appropriate requests were made. Specifically, he asserts in his brief that the
Haldeman br. at 137.
The requested instruction, which he now asserts he was entitled to because it would have presented the theory of his defense, would have instructed the jury:
J.A. 711.
Tr. 12390 (emphasis added).
Tr. 12391-12392 (emphasis added).
While these instructions were not worded exactly as Haldeman requested, they did fairly present to the jury the fact that he was challenging the accuracy of his alleged perjurious Senate testimony as alleged in Count 8. In fact, that point was twice stated. We see no error in the instructions on this matter.
Haldeman also challenges the evidence on Count 8, arguing that "a fair and liberal construction of the March 21 tape, as explained by the defendant, finds the statements true, and surely they were believed to be true"
C. The Interruption in Count 8
Haldeman next asserts that the court erred in failing to grant his requested instruction with respect to the effect of an alleged interruption in his testimony.
As is indicated by the transcript of Haldeman's testimony before the Senate Committee, the following colloquy occurred with Senator Baker:
Haldeman points to what appears to be an interruption by Senator Baker of the reply to the Senator's first question. At trial, Haldeman "testified that his answer was incomplete and that if he had been allowed to do so he would have enlarged upon his answer to avoid what on the face of the record [he now contends] appears to be a misinterpretation of his statement (Tr. 8676)." Haldeman br. at 138. To assist in making this point to the jury, Haldeman proffered the following proposed instruction:
J.A. 712 (emphasis added). He now claims error because this instruction was denied.
The court, however, did give the following instruction:
This instruction covers all the principal points of the requested instruction, except it omits the italicized words, i. e., a defendant may not be found guilty of perjury "if an incorrect impression was created because the defendant was interrupted while making his statement." We do not find error in the refusal to so instruct the jury.
We likewise find no error in the denial of the following instruction suggested by Haldeman:
Bronston, however, dealt with an answer that was undisputably true, which is not the case here. The appellant's statement to the Committee under Count 8 in this case was untrue (though responsive) unless the jury accepted his explanation. Bronston cannot be read to shield from prosecution answers or statements which are arguably true under some defense theory, for such a holding would all but void the federal perjury statute. Therefore, we hold that the instruction which was given
D. Count 9
This count charges Haldeman with perjury in testifying before the Senate Committee that he did not believe there had been any reference during a March 21, 1973, meeting to Magruder's having committed perjury.
The Government's evidence at trial included tape recordings of conversations among President Nixon, appellants Ehrlichman and Haldeman, and other conspirators. The bulk of the conversations occurred in the Oval Office or the Executive Office Building, while others took place over the telephone. Appellants object to the introduction of the recordings on three grounds, each of which we find to be without merit.
A. Admissibility under the Omnibus Act
Under Title II of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. (1970), interceptions of oral or wire communications may not be introduced in evidence except under specified circumstances, one of which is that one of the parties to the conversation consented to the interception. Id. § 2511(2)(c), (d). Appellants contend that the District Judge made no finding of consent, or, alternatively, that there was not an adequate basis for such a finding.
The transcript reveals some confusion in the hearing on the consent issue. There was only one genuine issue to be decided at that hearing—whether the interceptions that were effected by recording the conversations in question were consented to by Mr. Nixon, a party to them. However, the trial judge appears to have believed there was a second issue—whether the overall supervision of the recording equipment by the Secret Service, and specifically the custody of the completed recordings, was itself an interception. Many of the judge's comments, including his statement that the statute was not intended to apply "to the situation we have in this case," Tr. 5841, appear to relate to this second issue.
As to the first issue—the only genuine interception involved—the record cannot be considered crystal clear. Yet on reviewing it in its entirety, we are persuaded that the District Judge did find Mr. Nixon to have consented to the interceptions by directing the installation of the recording equipment. The District Judge stated that "[t]hese are completed conversations that were ordered according to the testimony and it can be inferred I think by the President through Mr. Higby." Tr. 5826. That view was immediately reiterated: "[the tapes] were made at the direction of the President." Tr. 5827. This finding of presidential consent is reflected in the statement that the Secret Service employees could be "construed as agents of the President," Tr. 5839, and in yet another suggestion that the President "consented to [the interception] by directing somebody to give the word to Mr. Higby, who gave the word to somebody else," Tr. 5840. Certainly, a greater measure of clarity and precision in formulating the finding would not have been amiss in view of its importance. Nonetheless, we believe the complete record reveals that the District Judge based his decision to admit the tape recordings on an unmistakably implicit finding that President Nixon directed the installation of the
Although appellants urge that such a finding is not supported by the evidence, we believe there is no merit to this contention. Findings of District Judges are not to be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a). This rule is fully applicable to transcribed oral findings, and its scope extends even to inferences drawn from undisputed facts. Case v. Morrisette, 155 U.S.App.D.C. 31, 37-38, 475 F.2d 1300, 1306-1307 (1973).
The record before the trial judge provided a more than adequate basis for inferring that President Nixon directed the installation of the recording system. Alexander Butterfield, a Deputy Assistant to the President, testified that Lawrence Higby, the principal aide to Mr. Haldeman, the President's Chief of Staff, told him to arrange for the Secret Service to install recording equipment in the President's Oval Office. Tr. 5521, 5524-5526. Butterfield then told the head of the Secret Service's Technical Security Division at the White House that the President wanted a tape recording system installed.
Finally, even if it were thought that additional evidentiary support were needed to sustain the District Judge's ruling, such support exists. For, in the course of the hearing on the consent issue, the Government read into the record testimony given by Mr. Haldeman in a hearing in the District Court on November 8, 1973, regarding the 18 1/2 minute gap that appeared on one of the recordings.
Tr. 5835.
The District Judge could surely take judicial notice, in a preliminary hearing merely on the admissibility of certain evidence, that this testimony was in fact presented in a hearing at which he presided on a not unrelated matter. See Gomez v. Wilson, 155 U.S.App.D.C. 242, 247 n.28, 477 F.2d 411, 416 n.28 (1973); cf. Partridge v. Presley, 88 U.S.App.D.C. 298, 300, 189 F.2d 645, 647, cert. denied, 342 U.S. 850, 72 S.Ct. 79, 96 L.Ed. 642 (1951). See generally C. McCormick, Handbook of the Law of Evidence § 330, at 765-766 & nn.74-75 (Cleary ed. 1972).
Appellants argue that, even if Haldeman's testimony were judicially noticeable, it was hearsay and hence not admissible. Although the facts that the declaration was made in a prior judicial proceeding, that the declarant is a party-defendant, and that the other defendants were co-conspirators, might bring the declaration within an exception to the hearsay rule, we need not carry out such an inquiry. For the technical rules of evidence are inapplicable to a hearing before the trial judge on the preliminary legal question of the admissibility of evidence. This view is held by the commentators, see, e. g., id. § 53, at 122-123 n.91; 5 J. Wigmore, Evidence § 1385, at 87 (Chadbourn ed. 1974), finds ample support in the case law, see Schwimmer v. United States, 232 F.2d 855, 863-864 (8th Cir.), cert. denied, 352 U.S. 833, 77 S.Ct. 48, 1 L.Ed.2d 52 (1956); Healy v. Rennert, 9 N.Y.2d 202, 209, 213 N.Y.S.2d 44, 49, 173 N.E.2d 777, 780 (1961), and has been adopted in the new Federal Rules of Evidence, see Rule 104(a), which although not in effect when this case was tried surely provide persuasive authority. If, after reviewing the live testimony before the trial judge, any suspicion that his finding of consent was clearly erroneous remained, it is surely put to rest by the substance of Haldeman's prior testimony.
B. Authenticity of the Tape Recordings
Appellants challenge the foundation for the introduction of the tape recordings. In determining whether there was a sufficient showing of accuracy to warrant admissibility, we must keep in mind the governing standard: "the possibilities of misidentification and adulteration [must] be eliminated, not absolutely, but as a matter of reasonable probability * *." Gass v. United States, 135 U.S.App.D.C. 11, 14, 416 F.2d 767, 770 (1969); accord, e. g., United States v. Robinson, 145 U.S.App.D.C. 46, 51, 447 F.2d 1215, 1220 (1971) (en banc), on rehearing, 153 U.S.App.D.C. 114, 471 F.2d 1082 (1972) (en banc), rev'd on other grounds, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. S. B. Penick & Co., 136 F.2d 413, 415 (2d Cir. 1943). Although the evidence bearing on admissibility should be carefully scrutinized to see if it measures up to the standard, it may be circumstantial or direct, real or testimonial, and need not conform to any particular model. E. g., United States v. Sutton, 138 U.S.App.D.C. 208, 213, 426 F.2d 1202, 1207 (1969). Viewing the record against this standard, we must reject appellants' challenge.
The record included adequate proof that the tape recordings were made by elaborate electronic recording devices installed in the White House and the Executive Office Building by the Technical Services Division of the Secret Service. See Tr. 5633-5634. There is no evidence that the system did not accurately record the conversations it was designed to preserve. See Tr. 5584. Although on rare occasions a reel
When a Secret Service agent placed a tape on a machine, a box associated with the tape was marked with the date and the location of the machine. Tr. 5672-5673, 5701. After a completed reel was removed, it was placed in the box and marked with the date of removal and the location of the machine and initialed by the Secret Service agent involved.
After a subpoena duces tecum was issued for particular conversations, White House attorneys removed from the safe those reels which appeared, from the date and location markings on the boxes, to contain the specified conversations.
The Government thus accounted for every stage from the inception of the tape recording system to the introduction of the tapes into evidence. There was never any significant risk, as there would be with a fungible piece of real evidence, such as blood sample, that the tape recordings were inadvertently exchanged with other evidence of a similar type. As the stipulation reflects, any possibility of misidentifying tapes or conversations was eliminated by the notation on the boxes, the identification of the voices on the tapes, the correspondence of each conversation sought with the detailed information in the daily diaries, and the distinctiveness of the evidence itself.
If the possibility of misidentification was virtually nonexistent, the risk of tampering with the tapes was also slight. There was very little opportunity at any stage for someone to obtain access to the tapes for the purpose of tampering with them. The only persons specifically shown to have known of the existence of the taping system were four Secret Service agents and Messrs. Butterfield and Higby (and the trial judge's finding on the consent issue indicates that Nixon and probably Haldeman must have known). Only the four agents had access to the keys to the locked cabinets in which the tapes were initially stored. Tr. 5679-5680. Access to the safe located within the room protected by an alarm system was similarly restricted.
Appellants' attempt to establish the probability of tampering by pointing to (1) the regular access of the Secret Service to the tapes and their occasional spot checks of the completed reels, Tr. 5675, 5707, (2) the rare instances in which completed reels
We may assume arguendo that the 18½-minute gap resulted from intentional conduct, but that does not lead to the conclusion that the conversations introduced at trial were suspect. To begin with, none of those conversations was contained on the tape having the 18½-minute gap. Moreover, the fact that one tape was erased hardly shows that other tapes, on which no erasures were present, were not authentic. All the conversations corresponded to the detailed information contained in the President's daily diaries. The trial judge listened to all the conversations that were admitted. In doing so, he had the opportunity to confirm the Government's claim that there was nothing on the tapes that raised a suspicion of tampering: no long or unusual pauses, choppy dialogue or incomplete conversations.
Although it is conceivable that sophisticated redubbing could escape detection by normal listening, real evidence is not admissible because one can conjure up hypothetical possibilities that tampering occurred. Appellants, who participated in many of the conversations, have raised no challenge to the accuracy of any one of them. John Dean testified that the six conversations to which he was a party accurately reflected his recollection of the discussions.
The determination of a District Judge to admit tape recordings rests in his sound discretion. E. g., United States v. Young, 488 F.2d 1211, 1214 (8th Cir. 1973); United States v. Clements, 484 F.2d 928, 930 (5th Cir. 1973), cert. denied, 415 U.S. 991, 94 S.Ct. 1591, 39 L.Ed.2d 888 (1974); United States v. Bryant, 480 F.2d 785, 790 (2d Cir. 1973); Monroe v. United States, 98 U.S.App.D.C. 228, 234, 234 F.2d 49, 55, cert. denied, 352 U.S. 873, 77 S.Ct. 94, 1 L.Ed.2d 76 (1956). The decision in this case to admit the tapes, leaving to the jury the question of their weight, falls far short of an abuse of that discretion.
C. Admissibility of Particular Excerpts
Mitchell objects on two different grounds to the admission of a number of specified excerpts in the tape recordings.
Mitchell contends that a number of out-of-court declarations recorded on the tapes are inadmissible because they contain expressions of opinion or statements not based upon the declarants' firsthand knowledge.
2. Alleged Inadmissibility as Hearsay Falling Outside the Co-Conspirator Exception
Mitchell next contends that numerous excerpts on the tape recordings constitute mere narratives of past events, rather than statements made in furtherance of the conspiracy, and hence fall outside the co-conspirator exception to the hearsay rule. We agree with the point that mere narratives of past events are not admissible hearsay statements. But as applied to the facts in this case, the argument is of limited value to Mitchell.
The conspiracy at issue required the coordination and control of a large number of individuals who had knowledge of the events that were being covered up. It also required the conspirators to make regular strategic decisions on how best to proceed to prevent the full story of "Watergate" from becoming known to the press, prosecutors, Congress, and the public. The tape recordings thus contain discussions of many aspects of Watergate strategy: what would happen if particular individuals were to talk, e. g., Tape Tr. 195, how much knowledge those individuals possessed, e. g., Tape Tr. 306, who was likely to volunteer or be compelled to talk, e. g., Tape Tr. 213-214, 306, 310, what individuals could be dissociated from any responsibility for reprehensible or illegal activity, e. g., Tape Tr. 147, 265-267, 303, 458-459, whether certain officials should assert executive privilege, e. g., Tape Tr. 193-194, whether public statements should be issued and what they might contain, e. g., Tape Tr. 57, whether it was feasible to raise and distribute hush money, e. g., Tape Tr. 131-132, 179, 189-191, whether promises of money or aid had been extended to particular persons, e. g., Tape Tr. 325, and so forth, see e. g., Tape Tr. 64, 72, 82, 86, 89-91, 130, 135, 311.
As the threads of the cover-up began to unravel, it became increasingly important
In a conspiracy in which consideration of alternative strategies played so central a role,
We have reviewed each of the excerpts to which Mitchell objects in context. Although most of the 39 excerpts contain statements of past facts, almost all of these statements are integral parts of the continual strategy sessions that took place in the White House concerning what to do in the future about Watergate. Only four of the excerpts strike us as possibly falling outside of the "in furtherance" requirement.
The evidence of Mitchell's participation in the conspiracy was overwhelming. As noted in our summary of the evidence supra, Mitchell was involved in the conspiracy from its inception on June 17 and played a
And his complicity in these events was irrefutably established at trial through the testimony of Dean, Magruder, LaRue, and Kalmbach, as well as co-defendants Haldeman and Ehrlichman.
Finally, contained on the excerpts that were properly admitted were a large number of statements by Dean, Nixon, Ehrlichman, and Haldeman that fully implicated Mitchell in the crimes of which he was convicted.
We have considered all of Mitchell's arguments regarding the admission of the tapes, and we believe that none of them identifies any prejudicial error.
XI. THE JURY INSTRUCTIONS
Haldeman raises many challenges to the court's instructions to the jury, a number of which are insubstantial and will not be discussed.
A. The Specific Intent Instruction
Haldeman raises a number of arguments which he contends demonstrate that the District Court failed to give a clear and correct definition of the essential element of specific intent. His major points appear to be: (1) the court failed to emphasize specific intent as an element of each offense charged; (2) the court failed to distinguish specific intent from general intent; and (3) the placement of the specific intent instruction tended to minimize its impact. For the reasons explained below, we find no error in the judge's charge to the jury on this subject.
First, it becomes clear upon reading the entire charge (Tr. 12356-12415) that the jury was instructed with respect to each count that they must find the presence of specific intent as a prerequisite to returning a verdict of guilty. The judge first addressed the charge of conspiracy, telling the jury that one of the essential elements of the offense is "[t]hat each Defendant knowingly participated in this conspiracy with the intent to commit the offense or the fraud which was the object of the conspiracy * * *." Tr. 12364 (emphasis added). This is a correct statement, for the specific intent required for the crime of conspiracy is in fact the intent to advance or further the unlawful object of the conspiracy.
Tr. 12367-12368 (emphasis added). The court's charge on this point was nearly a verbatim statement of the applicable D. C. Standard Jury Instruction,
The jury instructions thus clearly spelled out for the jury that specific intent was an essential element of the crime of conspiracy charged under Count 1. Haldeman, however, argues that because the definition of specific intent does not appear in the same place as the recital of the elements of the crime of conspiracy, the jury could have been confused into believing that only general intent was required to
Similarly, the instruction on Count 2, the obstruction of justice count, was clear as to the need for specific intent. The judge told the jury:
Tr. 12381 (emphasis added). The argument, raised by Haldeman,
The second group of arguments made against the court's specific intent instruction is that it failed to distinguish specific intent from general intent.
Charging that the jury could consider "all of the circumstances" was clearly proper. Except in extraordinary circumstances, criminal intent cannot be proved by direct evidence; it is therefore not only appropriate but also necessary for the jury to look at "all of the circumstances"
As to the "natural and probable consequences" instruction, we have previously approved this instruction—with the inclusion of the phrase "knowingly done or knowingly omitted" as indicated by the D.C. Criminal Jury Instructions
The final group of arguments which Haldeman makes against the court's specific intent instruction is his criticism of its location within the overall charge to the jury. One source of prejudice is said to be the placement of the definition of "specific intent" (quoted in text at ___ of 181 U.S.App.D.C., at 116 of 559 F.2d supra) immediately after a discussion of "guilty knowledge" and somewhat before the court's discussion of "natural and probable consequences," which allegedly operated to minimize the impact of the specific intent charge. Haldeman br. at 128. Appellant apparently believes that the jury could be confused by the serial explanation of these similar concepts. However, when the entire charge is read it becomes clear that the judge's order was logical and designed to minimize confusion. First, he explained the elements of Count 1, the conspiracy count; then he defined the legal concepts that the jury would have to employ in considering the first count; and then he proceeded to discuss the other counts, adding definitions or referring back to ones previously made as necessary. By discussing all the similar concepts in one place, the judge could minimize confusion by clarifying the differences between them; and he also avoided confusion regarding the elements of the crime by listing them all at once first, without interruption for definitions of terms. We find no undue potential for confusion here.
Appellant's other argument on this point is similar: he contends that, immediately after explaining that specific intent requires a finding that the accused acted "knowingly," the District Judge did an "about-face," Haldeman br. at 123, by stating that "[i]n attempting to show that a defendant acted wilfully, it is not essential that the Government establish that the Defendant knew he was breaking some particular rule or law." Tr. 12368. The judge's statement was correct: a defendant does not have to be aware that he was violating a particular law, such as 18 U.S.C. § 371, so long as he had the conscious intent to do that which the law in fact forbids. See generally United States v. Feola, 420 U.S. 671, 686-696, 95 S.Ct. 1255 (1975). Referring to the specific intent required by the crime of obstructing justice in Caldwell v. United States, 95 U.S.App.D.C. 35, 37, 218 F.2d 370, 372 (1954), cert. denied, 349 U.S. 930, 75 S.Ct. 773, 99 L.Ed. 1260 (1955), we stated:
Again, the placement of a caveat immediately following the specific intent definition in all likelihood tended to clarify the requirements for conviction rather than to confuse the jury.
In summary, we find the specific intent instruction given by the District Court to be adequate and nonprejudicial, and we reject this alleged ground for reversal.
B. The Instruction on Membership in the Conspiracy
In instructing the jury on the standards it must follow in determining whether a particular defendant became a member of the conspiracy the court stated:
Tr. 12365 (emphasis added).
Haldeman, relying on D.C. Criminal Jury Instruction 4.92,
Given this purpose to the rule, it is clear that a defendant's own "conduct" may
It is seldom that a major case will be tried without some deviation from the approved instructions being fully justified to more closely fit a precise situation in the interest of clarity or desired emphasis. We so view the words which were added here. The questioned portion of the instruction merely called the attention of the jury to the fact that, if they wished, they might be able to arrive at a more perceptive conclusion from the "words and acts" by viewing the "general course" indicated thereby. We see no error in the added words. They merely add an element of common sense.
C. The Scope of the Indictment
A final major objection made to the court's instructions to the jury is that they are alleged to have described the offenses charged by Counts 1 and 2 in language that went beyond the scope of the indictment
1. The Alleged Merger of Counts 1 and 2
In the course of its instructions on the charge of obstruction of justice as set forth in Count 2,
Tr. 12379 (emphasis added). Haldeman contends that this single reference to "conspirators" in connection with Count 2 introduced "elements of the law of conspiracy into the second count of the indictment, thereby commingling the elements of [the
2. "Misuse" of the Central Intelligence Agency (CIA): Count 1
Haldeman next contends that, since the indictment did not specifically allege that "misuse" of the CIA to interfere with the FBI's investigation was part of the conspiracy charged in Count 1,
We must disagree with Haldeman's argument that "[n]owhere in the Indictment was any defendant in this case charged with any crime pertaining to the Central Intelligence Agency or with any crime committed, in whole or in part, by reason of alleged `misuse' of the Agency." Haldeman br. at 111. This is simply incorrect. While it is true that the indictment did not use the words "misuse of the CIA," it is wrong to say that the conspiracy count did not allege facts that, if proved, would constitute misuse of the CIA. Count 1 (the conspiracy count) of the indictment charged that the defendants unlawfully conspired to obstruct justice in violation of Title 18, United States Code, Section 1503 * * and to defraud the United States and Agencies and Departments thereof, to wit, the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the Department of Justice, of the Government's right to have the officials of these Departments and Agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty, unlawful impairment and obstruction, all in violation of Title 18, United States Code, Section 371.
Count 1, ¶ 10, J.A. 115-116; and that
Count 1, ¶ 11, J.A. 116;
Count 1, ¶ 13, J.A. 117;
Count 1, ¶ 15, J.A. 119.
The Overt Acts also contained allegations of the attempted misuse of the CIA:
J.A. 120-121.
The unlawful agreement to attempt to use the CIA to interfere with the investigation of the Watergate break-in was thus fairly charged in Count 1 of the indictment as one of the means by which the defendants intended to accomplish one of the principal objects of their conspiracy—defrauding the United States of its right to have its officials and agencies transact their business honestly, impartially, and free from corruption or undue influence or obstruction. The indictment was thus sufficient to put the defendants on notice of the charges against them and to enable them to plead an acquittal or conviction in bar of future prosecution of the same offense based on the same CIA evidence. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974). The particular means allegedly used were identified. Cf. Russell v. United States, 369 U.S. 749, 764-766, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962); United States v. Nance, 174 U.S.App.D.C. 472, 533 F.2d 699 (1976). Beyond this, it is not necessary for the indictment to include "[t]he particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy * * *. Such specificity of detail falls rather within the scope of a bill of particulars * * *." Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 463, 86 L.Ed. 680 (1942). Here, defendants did ask for certain further details in a bill of particulars,
Therefore, the trial judge did not commit error in instructing the jury at the close of trial that
Tr. 12383 (emphasis added). While the conclusion that the CIA had been misused might not be the only possible one which could be drawn from the totality of the evidence, it was a permissible conclusion from all the evidence relating to that agency that the defendants did unlawfully conspire among themselves to induce the CIA to prevail upon the FBI to restrict its investigation, and to induce the CIA to furnish financial assistance to those involved in the break-in, so that, inter alia, the financing of the Watergate burglars by the Committee for the Reelection of the President, with Mitchell's participation, would be concealed. Such acts clearly constituted part of the means designed to accomplish the alleged object of the unlawful agreement to defraud the Government, and that result was a foreseeable possibility even though its ultimate objective eventually failed. As such, the evidence in question was within the conspiracy charged and its admission, together with the instruction thereon, did not constitute an amendment of the indictment.
Nor is the propriety of this particular instruction affected by the failure of the trial judge to define the term "misuse of the CIA." This phrase was a reasonably accurate description of the charges in the indictment involving the CIA, and of the evidence in support thereof, which showed that the defendants had attempted to use the CIA to stop the investigation of the Watergate break-in and to use CIA covert funds to assist those guilty of that break-in. The defendants were not charged with a crime of misusing the CIA; rather, the allegations of the conspiracy count accused them, inter alia, of misusing the CIA as a means of accomplishing the crime of defrauding the Government, which was clearly defined by the charge on conspiracy.
3. Misuse of the CIA: Count 2
Appellants were also convicted on Count 2 of the indictment which charges them with obstruction of justice in violation of 18 U.S.C. § 1503.
The Fifth Amendment guarantees that prosecutions for serious crime may be instituted only by indictment. In implementing this constitutional guarantee the Supreme Court has recognized that the indictment as a charging instrument has two central purposes—to apprise the accused of the charges against him so that he may adequately prepare his defense,
See also Stirone v. United States, 361 U.S. 212, 218, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); United States v. Debrow, supra, 346 U.S. at 376, 74 S.Ct. 113.
Count 2 of the indictment in question here clearly and fully serves both purposes.
Nevertheless, Haldeman complains that there was an omission from Count 2 that renders it defective. Specifically, he objects to the fact that, although misuse of the CIA was not alleged in Count 2 as one of the means by which the offense was committed, the trial court admitted evidence concerning such misuse and included in the jury instructions the statement that a guilty verdict should be returned on Count 2 if the jury found beyond a reasonable doubt that the defendants had misused the CIA to obstruct justice.
Haldeman's complaint seems to result, however, from a general misunderstanding of the purpose of the indictment and, especially, from an inflated notion of what must be included therein. Although an indictment must—in order to fulfill constitutional requirements—apprise the defendants of the essential elements of the offense with which they are charged, neither the Constitution, the Federal Rules of Criminal Procedure, nor any other authority suggests that an indictment must put the defendants on notice as to every means by which the prosecution hopes to prove that the crime was committed. Impervious to this fact, however, it appears to be the intent of the appellants, abetted by the dissent, to ignore the present state of the law and countermand the Federal Rules of Criminal Procedure which "were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure." United States v. Debrow, supra, 346 U.S. at 376, 74 S.Ct. at 115.
The omission to which Haldeman objects here plainly offers no basis for reversing the Count 2 convictions. As discussed supra, the count begins by stating the elements of the offense in the language of the statute. It goes on to provide particulars of the alleged offense, including the instruments of justice obstructed and the means employed. Neither as a matter of common sense nor of legal principle could the defendants have been in any doubt as to the crime with which they were charged.
In asserting that Count 2 has omitted an essential element, it is most unclear what, if any, authority the dissent relies upon. Although Hamling v. United States, supra, is quoted, the dissent fails to acknowledge that, in that case, the Supreme Court affirmed the defendants' convictions which were obtained under indictments that, according to the Court, "charged them only in the statutory language of 18 U.S.C. § 1461" (which makes it a crime to mail obscene or crime-inciting matter). 418 U.S. at 117, 94 S.Ct. at 2907. The dissent also quotes from Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962), in which the Court reversed convictions under a statute which made it a crime for any person summoned to testify before a committee of Congress to refuse to answer "any question pertinent to the question under inquiry." 2 U.S.C. § 192. The basis of the reversals was the indictments' failure to identify the question under inquiry and the fact that
369 U.S. at 764, 82 S.Ct. at 1047 (emphasis added). In this case, by contrast—despite the fact that not even the appellants suggest that the means by which the obstruction of justice was carried out are as central to the prosecution as was the "subject under inquiry" in Russell—"other means" were referred to in Count 2.
Rule 7(c), in fact, expressly sanctions indictments in the language to which Haldeman objects. The rule provides that "[i]t may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means." Further particularization of the means encompassed in the allegations of Count 2 could have been sought by asking for a bill of particulars.
The validity of similarly worded indictments has been upheld in two recent federal cases. In United States v. Caine, 441 F.2d 454 (2d Cir. 1971), the court, in affirming convictions of three defendants accused of violating federal mail and wire fraud statutes, rejected defendants' claim that the trial court had improperly permitted introduction of evidence concerning failure to give certain refunds—a charge the defendants argued was not encompassed within the terms of either the indictment or the bill of particulars. The trial court had ruled that such evidence was admissible under the indictment which stated:
441 F.2d at 456 (emphasis added). Without deciding whether the trial court could properly have stricken "among others" from the indictment, the Court of Appeals held that the admission of the challenged evidence did not require reversal of the convictions.
In reaching this conclusion, the court relied chiefly on two factors. First, it noted that the introduction of the evidence in question did not constitute surprise, much less prejudicial surprise. Id. at 457. Second, the court emphasized the unlikelihood that the defendants had been convicted of charges either rejected or not considered by the grand jury. It stated:
Id.
Each of these factors is clearly operative in the present case. That the evidence introduced
In United States v. Mayo, 230 F.Supp. 85 (S.D. N.Y.1964), a case cited with approval in Caine, Judge Weinfeld denied a motion to dismiss the second count of an indictment and rejected the argument that inclusion in the means paragraph of the phrase "among others" invalidated the indictment. Id. at 86. The court noted that, because the phrase was included in the means paragraph—much as "by other means" is included in the allegation of means in the present indictment—it went only to the matter of proof to sustain the charges. Judge Weinfeld expressly accepted the prosecution's position that the words "among others" were "to be equated to allegations of overt acts in a conspiracy charge where the government is not required to set forth all the acts relied upon to effectuate the conspiracy." Id. at 86.
Haldeman claims, however, that, apart from the issue of sufficiency of notice, the indictment is defective in not performing the second function required of a valid indictment, that of protecting the defendant from the possibility of subsequent prosecution for the same offense. But, in truth, the specific phrase of the indictment about which Haldeman objects increases rather than diminishes the appellants' protection against double jeopardy. By alleging that the obstruction of justice with which the defendants were charged was carried out "by other means" in addition to those specified, the indictment effectively broadens the scope of the acts to which jeopardy attaches and correspondingly reduces the opportunity for subsequent prosecutions of these defendants for the alleged obstruction of justice during the lengthy period alleged in the indictment (June 17, 1972 through March 1, 1974).
Also, in raising the specter of double jeopardy, Haldeman ignores the fact that, by judicial decision and by statute, all defendants have been given recourse to the entire trial record should they ever have to plead former jeopardy. E. g., Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038 (1962); 28 U.S.C. § 1732 (1970).
Along with the dissent, Haldeman further contends that, as regards misuse of the CIA, there is a fatal variance between the indictment on one hand and the evidence
Except for incanting these Latin phrases, however, neither Haldeman nor the dissent cites any authority for the related rules of construction they seek to apply to Count 2. Furthermore, examination of the phrase "by other means" in the context of the entire count demonstrates the inaccuracy of the asserted interpretations. For purposes of analysis, Count 2 can usefully be viewed as consisting of three parts: (1) the elements of the offense of obstruction of justice (stated basically in the words of the statute); (2) the objects of the defendants' obstruction (i. e., the investigation by the FBI and the United States Attorney's office, the grand jury, and the trial of those accused of the original Watergate break-in); and (3) the means by which the obstruction was carried out.
The present case is readily distinguishable from Stirone v. United States, supra, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252, the leading case on variance and one on which Haldeman relies. In Stirone the indictment charged the defendant with violating the Hobbs Act
When an indictment is drawn in the general terms suggested by Stirone, it is often difficult to know exactly what evidentiary allegations were considered by the grand jury. Here, however, some indication of what was before the grand jury with respect to the CIA and what was intended by the phrase "by other means" in Count 2 is provided by the language of the conspiracy charge in Count 1 and the evidence admitted without objection in support thereof.
In this case the basis for federal jurisdiction of the obstruction of justice charge is unambiguous. The indictment explicitly charged that each element of the offense had been committed "in connection with an investigation being conducted by the Federal Bureau of Investigation and the United States Attorney's Office for the District of Columbia, and in connection with the trial of Criminal Case No. 1827-72 in the United States District Court for the District of Columbia * * *." Appellants do not even claim that the evidence or the jury instructions departed from these jurisdictional elements. The evidence amply showed that appellants endeavored to use the CIA to obstruct the FBI investigation.
Stirone is further distinguishable in that the variance there in question involved a material time differential. The indictment, that is, alleged interference with interstate commerce as regards past shipments of sand, but the evidence and instructions also referred to future and contingent shipments of "steel from a nonexistent steel mill." 361 U.S. at 219, 80 S.Ct. at 274. Here the payments, offers of other benefits, and misuse of the CIA were alleged to have occurred during the same period. Unlike Stirone, this case most definitely did not involve a grand jury that heard evidence only as to past events while the trial also involved evidence as to future events.
Accordingly, we find Haldeman's objections to Count 2 and to the jury instructions given on that count to be without merit.
XII. THE MOTIONS TO DISQUALIFY JUDGE SIRICA
Well prior to trial, Ehrlichman and Mitchell joined in an affidavit
Judge Sirica refused the request for referral and, deeming the affidavits legally wanting, rejected the motion.
We perceive no basis upon which it could be held that Judge Sirica erred in ruling on the legal adequacy of the affidavits himself. We are mindful that the Government did not oppose the movants' effort to get the matter before the Calendar Committee,
B. The Section 144 Claims
1. Earlier Judicial Activity
Turning to the affidavits, upon which the endeavor to disqualify was grounded,
The allegations to which we have referred do not survive this requirement.
2. Extrajudicial Statements
Another branch of the claim of bias stems from references in the Ehrlichman-Mitchell affidavit to alleged extrajudicial utterances by Judge Sirica. One is that the judge "was guest of honor at a party given by the press honoring him on his 70th birthday," at which he "conducted interviews with reporters in which he made statements concerning this case."
Section 144 specifies that "[t]he affidavit" supporting a motion thereunder "shall state the facts and the reasons for the belief that bias or prejudice exists,"
Even if we assume that the interview is properly before us, it provides no basis for a finding of bias or prejudice. Judge Sirica candidly acknowledges that he was asked, "[i]s there any doubt in your mind about [the defendants'] abilities to get fair trials?"
These statements were substantively insufficient to establish bias or prejudice within the meaning of Section 144. By Judge Sirica's appraisal, "[f]airly interpreted, these comments address the quality of the federal judiciary in the District of Columbia and do not concern changes of venue, let alone constitute a prejudgment on motions for change of venue * * *";
A fundamental premise of our jurisprudential system is that, save in the most extraordinary circumstances, an impartial jury expectably may be convened anywhere in the Nation. Another is that the capability of doing so is always to be presumed
To be sure, Judge Sirica's televised remarks are not completely free of ambiguity, and it is possible to impart into the first of his two answers a tinge of prejudgment on the forthcoming venue question in this case.
C. The Section 455 Claims
1. The Alleged Interest
As we have previously indicated,
To be sure, pre-1974 Section 455 commanded recusal in any case in which the judge had "a substantial interest."
2. Past Relationships With Counsel
The remaining argument under old Section 455 is predicated on past relationships between Judge Sirica and attorneys who were to actively participate in the trials under review. Nearly a decade ago, while United States Attorney for the District of Columbia, Mr. David G. Bress, one of trial counsel for defendant Mardian, opposed petitions for writs of mandamus attacking the judge's rulings in three cases.
The petition seeking a writ of mandamus or prohibition to control a ruling of a District Judge is a relatively frequent occurrence in this circuit. Active defense of the ruling by counsel for the litigant favored is commonplace,
Similarly, on widely scattered occasions when no party to an appeal from the District Court undertakes to support the decision under review, this court may appoint an attorney as amicus curiae to defend that decision. The whole purpose in
We do not find the relationship normally existent between judges and counsel in those instances any need for recusal upon resumption of the litigation in the District Court.
Then, too, recusal of a judge for a relationship to or connection with counsel for a litigant was, in the language of old Section 455, to occur only when it was such "as to render it improper, in his opinion, for him to sit on the trial * * * or other proceeding therein."
Having considered all of the arguments raised by each of the appellants, we conclude that there was no reversible error in this case. We therefore affirm the convictions of Haldeman, Ehrlichman and Mitchell for conspiracy as charged in Count 1 and obstruction of justice as charged in Count 2. We also affirm the individual convictions of Mitchell under Counts 4, 5 and 6; Haldeman under Counts 7, 8 and 9; and Ehrlichman under Counts 11 and 12.
Affirmed.
MacKINNON, Circuit Judge (concurring in part and dissenting in part):
My views concur with those expressed in the majority opinion, in which I have participated, except with respect to the issues of pretrial publicity and the convictions on Count 2.
PRETRIAL PUBLICITY
If ever in the history of our country there was a criminal case which by law had to be transferred to another place for trial because of prejudicial pretrial publicity alone, this is that case. When this case was before us prior to trial, I stated that the venue should have been changed to some place other than the District of Columbia. I adhere to that position. The trial court here denied a timely pretrial motion for change of venue and in so doing denied defendants one of their most basic constitutional rights—the right to a fair trial. Under the rule that this court ordinarily applies we should therefore reverse the convictions and grant a new trial.
The majority opinion in this case applies a double standard that results in denying the defendants a right which the Constitution and the Supreme Court have secured to all criminal defendants in United States federal courts, the right to have their request for a change of venue determined by the federal standard. The majority goes on to make an inadequately thin and erroneous analysis of the question of whether the publicity in the Washington, D.C. area was so exceptionally overwhelming on its face as to require changed venue at defendant's request. Finally, in exploring the question of whether the jury candidates reflected actual bias, the majority, with no depth of analysis, erroneously evaluates the voir dire proceedings.
I. THE CRIMES AND THE RESPONSIBILITY OF THE COURT
The crimes for which the appellants are convicted are flagrant. The convictions encompass callous disregard of duty, in some cases sworn duty, to our country. Our era is as perilous as any in our country's brief history, and the crimes in this case paralyzed our executive branch, denying us national leadership in an era when leadership was vitally needed.
The duty of this federal court is to apply the federal criminal law, as secured under the Constitution and laws of the United States, to the cases of the appellants. The very system of laws which were betrayed in the crimes charged must not be manipulated to obtain convictions in this particular case. Such manipulation is a disservice. It can in the end harm our Republic in the same manner as the acts that created this case in the first place.
The men here have exactly the same rights as any other defendants indicted in federal court, neither more nor less.
A. The Scope and Duration in General
The majority gingerly refers to the pretrial publicity in these terms:
and,
These allusions, very substantially understated as they are, are all the majority has to say on the scope of the publicity. They border on casualness. They shut out the truth.
Actually, the pretrial publicity in this case is unequivocally unique in American history. Its duration and level of sustained media attention from June 18, 1972, the day after the arrests following the Watergate break-in, to May 1, 1974, the date of the appellants' first motion for changed venue (Docket entry 56), swelling in an ever increasing crescendo, admits of comparison only with the media coverage for outbreaks of war. Indeed, the sustained daily coverage accorded this case on television and in newspapers finds parallel in recent memory only with the daily coverage of the war in Vietnam.
The crush of publicity was unprecedented, from the opening build-up at the Senate hearings, through the Presidential pre-impeachment proceedings, and continuing up to the time of the beginning of the instant trial. This opinion is not concerned with subsequent publicity because it could not affect the sequestered jury. Statistical findings on the extent of the national publicity are not in the record, and do not yet appear to be available in the literature.
B. The Level of Coverage in Washington, D.C.
The record here discloses a great volume of clippings from the papers in the Washington, D.C. area and a set of anecdotal comments. These materials suffice to make the point even though national statistics were not available. The Appendix submitted by Mr. Parkinson in an additional change of venue motion on May 1, 1974, contains selected clippings principally from the Washington Post, the Washington Evening Star and Daily News, and the New York Times for the period June 18, 1972, to May 1, 1974, and comprises four boxes (Docket entry 84, Appendix A, Folders 1-37). It can be conservatively estimated that that submission alone contains over 50,000 column inches from the Washington Post and the Washington Evening Star and Daily News of pretrial publicity. This is an average of some 30 to 120 column inches per day, day in and day out, for the Washington, D.C. area from Washington, D.C. papers alone.
The Watergate Special Prosecutor himself says flatly:
Watergate Special Prosecution Force Report 1 (1975). And,
Id. at 227. With respect to the non-newspaper and non-broadcast record alone he states:
Id. at 2.
The majority opinion at footnote 34 states that:
But the essential point is that the amount of pretrial publicity that did discuss these cases has never before been equalled. The coverage in Washington, D.C. by Washington papers alone, without considering the additional tally of television and radio coverage, worked as an indivisible whole, casting "All the President's Men" as criminals. The implication from the majority, that the individual reader does not link publicity in such a manner, is contrary to fact. The effect of the mass of publicity is indivisible. The majority's apparent suggestion that "conspiracy related information" is the only relevant information is also incorrect. The cumulative effect of the publicity was inexorably to create a poisoned body of public opinion of massive proportions particularly in the District of Columbia, from which the jury was drawn.
Moreover, with respect to so-called "conspiracy related information" significant portions of such information did not come into the trial. For example, Washington newspapers made the following statements about Watergate matters in the April 19 to May 18, 1973 period alone:
C. Comparison of Washington With Other Areas
Since appellants sought change of venue from Washington, D.C. on the basis of pretrial publicity, the first question is whether the coverage in Washington, D.C. was exceptionally heavy as compared to the rest of the country.
The record does not disclose data on television and radio coverage of Watergate, but it is probably accurate to assume that, roughly, the television and radio coverage of Watergate was at least as extensive in Washington, D.C. as elsewhere, particularly since much of the television coverage was on day-long nationally televised Senate hearings and evening news shows. If there is error in this assumption, it probably understates the coverage in the Washington, D.C. area.
The distinguishing factor thus becomes the newspaper coverage. The evidence is ample that the press coverage in Washington, D.C. was substantially heavier than elsewhere in the country. More importantly, there is no evidence or analysis in the record or the majority opinion indicating that the newspaper coverage in the rest of the country was even roughly as extensive as it was in Washington.
The Washington Post stood at the center of the disclosure. It accorded massive coverage to Watergate. The Special Prosecutor notes the key role of the Washington Post. In writing of the events after Mr. Cox's appointment to head the prosecution forces he says:
Watergate Special Prosecution Force Report 227 (1975). He also notes a reminder of the Washington Post's exceptional vigor in digging into Watergate matters:
Id. at 230.
More importantly, there is the evidence that the newspaper coverage alone in Washington, D.C. stayed at an average level of 30 to 120 column inches a day, accumulating to a total of some 50,000 column inches for the entire 22 month period between disclosure of the break-in and the May 1, 1974 change of venue motion. The Government's response to the motion (Docket No. 142) certainly offers no argument that the newspaper coverage elsewhere in the country was the same as in Washington, D.C. Judge Sirica, in his disposition of the motion, makes no suggestion that the coverage was the same (Hearing of June 12, 1974, Docket No. 180).
The most compelling evidence of the exceptional level of newspaper coverage in Washington, D.C. is the Sindlinger Affidavit, attached to the May 1, 1974, Change of Venue Motion (J.App. 284, Docket No. 56). The affidavit presents a public opinion survey that examined the question of pretrial publicity in the Watergate case. The affidavit is appended to this dissent as Appendix A. The survey results show, at pp. ___-___ of 181 U.S.App.D.C., at pp. 178-179 of 559 F.2d that Washington,
[Indianapolis [Richmond
[U.S.] [D.C.] [Delaware] area] area]
------------------------------------------------------
Newspaper 37% 58% 39% 28% 25%
Television 58% 46% 62% 51% 65%
Magazines 7% 16% 17% 9% 11%
Radio 5% 11% 9% 4% 3%
Political Position 6% 11% 3% 4% 4%
Personal Decision 13% 14% 15% 15% 8%
Don't Know 6% 4% 4% 6% 8%
In the nation as a whole and in the three other sampled areas, television was clearly the most influential factor. The validity of the poll has not been challenged. The methodology is set forth in the affidavit and speaks for itself. In its response to the change of venue motion, the Government said simply ". . . we do not find it necessary to take issue here with the study's methodology . . ." (Docket No. 142 at 9).
Thus, even with the generous assumption that television and radio coverage in Washington was at the national average, the effect of the Washington newspaper coverage alone was far more substantial than elsewhere in the country.
III. THE EFFECT OF THE WASHINGTON, D.C. PUBLICITY AS OF MAY 1, 1974
The venue question poses the additional and central issue of the effect of the publicity as of the time of the change of venue motion. There are two factors that were evident in the record as presented to the District Judge on May 1, 1974.
The first factor is that the coverage of the case in Washington, D.C. alone far exceeded the coverage elsewhere in the nation. This alone called at least for inquiry into the comparison of Washington, D.C. coverage with coverage in other parts of the United States. Neither the District Court nor the Government initiated such an inquiry.
The second factor before the Judge was the result of just such an inquiry, which was set forth in the survey described in the Sindlinger Affidavit (Appendix A). The sample population was drawn from those responding that they were registered to vote, and therefore eligible to serve on a jury in their area. 93% of the Washington, D.C. population was found to know of the indictments. 73% of those people were found to have an opinion of guilt or innocence—a proportion 15% more than the corresponding national average and 23% more than in one other sampled area, closeby Richmond, Virginia. Moreover, the proportion of the total Washington, D.C. population that thought the appellants here to be in fact guilty was about 61% (84% of 73%), significantly higher than the corresponding national average of about 43%. (75% of 58%, Appendix A at ___ of 181 U.S.App.D.C., at 179 of 559 F.2d).
This result was especially favored because of the conclusion that fairly leaps from the survey results in the Sindlinger Affidavit: much of the entire country already thought the appellants guilty. At the very least a court would be expected to remove the trial from a locale where 61% of the populace had concluded guilt to a locale where only 43% or less had so concluded; there must have been many such locales, since the national average was 43% (Appendix A at 6). In Richmond, Virginia, only 37 1/2% considered that defendants were guilty. (75% of 50%, id.) This was not a situation where many had not heard of the case, or where many had no conclusion one way or the other. Here, on the face of an unrefuted and apparently accurate poll, most people in Washington, D.C., some 61%, in their own minds had already completed the trial and returned a verdict of guilty, while only some 2% of the city had formed an opinion of innocence. (Id. at 6). The appellants' plea was not to go where most residents had not heard of the indictments or had not formed some opinion, for their evidence disclosed no such place. The plea was to go to a place where where less than one-half the potential jurors had formed an opinion that they were guilty, with the rest withholding judgment.
It was possible for the Judge to travel with this case; any conviction he may have had as to the necessity that he preside need not have been violated.
IV. THE LEGAL STANDARDS
In weighing the foregoing evidence on pretrial publicity, the District Court and this court are required to apply the law that governs the change of venue question. The law on the matter is established in four categories. First, there is the law applicable to federal cases, as set by the Supreme Court and the Circuit Courts of Appeals under their supervisory power over the District Courts, and, in the case of the Supreme Court, over the Circuit Courts of Appeals as well. Second, there is the law applicable to all courts, state or federal, under the Constitution. Within each of these two categories there is a division between two types of venue-change decisions for pretrial publicity. One is the category in which prejudice to the defendant is found to exist presumptively, because of extraordinary circumstances of coverage. The second is the category in which, although prejudice cannot be declared presumptively, the voir dire of prospective jurors discloses sufficient prejudice to warrant changed venue. This produces the four categories of analysis: (1) federal and (2) constitutional, and (3) presumptive and (4) actual.
The case law establishing these categories is clear-cut. There is a federal supervisory standard, in addition to a constitutional standard, in these cases, which would assure fair trials by an application of the rule of presumptive prejudice or through identification of actual prejudice. This is made clear in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), and reiterated in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), where the Court wrote, discussing Marshall:
421 U.S. at 797, 95 S.Ct. at 2035 (footnote omitted) (emphasis added).
The Court in Murphy was addressing itself to the constitutional standard applicable to state trials. The Court went on to survey the scope of the constitutional standard, as opposed to the federal supervisory standard:
Id. (emphasis added).
The federal supervisory standard provides broader protection against prejudice than the constitutional standard. Concurring in Murphy, supra, Mr. Chief Justice Burger wrote:
421 U.S. at 803-04, 95 S.Ct. at 2038 (emphasis added). And in Rideau, supra, Mr. Justice Clark wrote, dissenting:
373 U.S. at 728, 83 S.Ct. at 1420.
Recently, an opinion by Judge Bazelon emphasized that federal appellate courts have the duty to impose supervisory standards over criminal cases, United States v. Pinkney, 179 U.S.App.D.C. 282, 551 F.2d 1241 (1976) n.50, but, for some unexplained reason, the majority does not conform to that exhortation in this case, where the supervisory standard has been promulgated by the Supreme Court.
The foregoing makes three unequivocal points. First, there is a category of presumptive prejudice to which a federal supervisory standard applies. Second, that standard assures a defendant more protection against prejudicial pretrial publicity
Murphy v. Florida, 421 U.S. at 798, 95 S.Ct. at 2035.
V. APPLICATION OF THE STANDARDS
A. The District Court
The District Court disposed of the question of presumptive prejudice at the June 12, 1974, motions hearing. In doing so it did not distinguish between a federal and a constitutional standard, and it did not examine or attempt to apply the law of presumptive prejudice.
Tr. June 12, 1974 (Docket No. 180) at 431-33 (emphasis added). The final sentences reveal that the District Court intended no examination at all to determine if the amount and nature of the presumptive prejudice violated the supervisory standard applicable in federal courts. And in fact it did not indulge in any such examination.
Later in the hearing the District Judge showed again that presumptive prejudice was not a consideration:
Id. at 435-37 (emphasis added). The Sindlinger Affidavit demonstrates the truth of the last observation.
The "ABA standards" referred to in the foregoing exchange are at ABA Standards Relating to Fair Trial and Free Press 119-28 (Approved Draft) (1966). The commentary therein reviews the pre-Murphy-Rideau cases and succinctly states the error of the District Judge's approach in this case.
Id. at 119 (emphasis added). In commentary, the ABA authors wrote:
Id. at 126 (footnotes omitted).
As to the opinion poll, the District Judge says simply, "You know polls can be wrong too. We remember the famous election when Governor Dewey ran against President Truman. . . . I have great faith in the jury system." (Docket No. 180 at 437) (emphasis added). But this statement reflects categorical rejection without consideration of the Supreme Court rule on presumptive prejudice. In light of Murphy and Marshall the law is now that presumptive prejudice is a factor that must be examined in venue decisions. The District Court therefore committed reversible error in declining even to consider the factor. If the federal standard for presumptive prejudice exists at all, it requires the trial court to recognize the possibility of presumptive prejudice. Further, on the facts of this case, the presumptive prejudice existing in the District of Columbia, which is demonstrated by Appendix A and the newspaper clippings, mandated a change of venue to a more favorable venue.
B. The Majority Opinion
The majority opinion states:
Majority opinion at ___ of 181 U.S.App.D.C., at 62 of 559 F.2d. The Supreme Court, however, has formulated a supervisory standard in venue matters. The present Chief Justice and Mr. Justice Marshall and Mr. Justice Clark have so written. 421 U.S. at 798, 804, 95 S.Ct. 2031; 373 U.S. at 728, 83 S.Ct. 1417. The majority should acknowledge that it exists and apply it.
The reasoning of the majority opinion turns on the notions that identifying and applying such a standard would be hard to do (Majority opinion at ___-___ of 181 U.S.App.D.C., at 62-63 of 559 F.2d), the trial would not be fairer (id. at ___-___ of 181 U.S.App.D.C., at 63 of 559 F.2d), and that, after all, if trial courts are permitted to deny changes of venue for presumptive prejudice and to go on to the voir dire, more information on prejudice would be available (id. at ___-___ of 181 U.S.App.D.C., at 63 of 559 F.2d).
It is true that voir dire is potentially a valuable tool for discovery of prejudice, but that observation is irrelevant to the issue of whether a supervisory or constitutional standard is to apply in weighing the information on prejudice. Also, as held in Marshall, supra, there are cases in which voir dire is pointless. Further, the trial could not help but tend to be more fair if the venue were laid where only 37½% of the
As to the standard, the court here is simply walking away from its duty. The majority thus whisks the law away at whim.
The appellants here are criminal defendants in federal court. They have a right to be judged by federal standards—the same as all other federal defendants. Federal judges have a sworn duty to apply federal standards, as denominated by the Supreme Court, to the facts of this case. The federal judges here have not done so. No consideration whatsoever has been given to the existence of potential prejudice above the bare minimum constitutional obligation.
VI. THE LAW APPLIED TO THE MAY 1, 1974 MOTION
The task of this court is to apply the federal supervisory standard for presumptive prejudice to the facts of this case.
A. The Remedy
The first step in analysis is to clarify the precise remedy and to identify its costs. The remedy was not delay. It was not a continuance. It did not entail additional national agony in delaying the trial and its resolution. The remedy was simply for the trial to be held in practically any place other than Washington, D.C. Moreover, the District Judge was not barred from himself travelling with the case and trying it. The interests of the country in a prompt trial and supervision of a fine judge were simply not at stake. To say that they were is to completely evade the law as to change of venue. The fact is that had such change of venue been made, the issue of the fairness of the trial, on the venue point, would have been completely obliterated from the case. Why the Government and the trial court would want to hazard a criminal trial in which the evidence of guilt was as strong as it was here by insisting on trial in a jurisdiction where presumptive prejudice existed to the extent that it did here, defies reason. Delay and the selection of the judge were not issues, and the issue of possible additional trial costs in the new venue was not raised (Docket Nos. 142, 180).
The Government had absolutely nothing to lose by trying the case in a community where presumptive prejudice was at a minimum, and to say that it did have something to lose is to admit that the case should have been transferred.
A factor that compelled use of the simple venue safeguard in this case was that the United States Senate had expressly chosen to televise its hearings in spite of the Watergate Special Prosecutor's request, out of concern for defendants' fair trial rights, that there be no television coverage. The Senate reported:
S.Rep. No. 93-981, 93d Cong., 2d Sess. XXXI-XXXII (1974) (emphasis added). This statement speaks for itself and indicates that the Senate hearings were unconcerned with the prejudice they might cause to future criminal trials. Given this decision, and the nationally televised and printed coverage it created, simple fairness commanded that the trial be located in some community where there lay a minimum prejudgment of guilt.
One other element of cost should be explicitly stated. It is the cost now, in 1976, of reversing the convictions for a retrial of these cases where the Government's evidence is massive. The cost includes re-opening old wounds. The cost may also include public exasperation and disillusionment. The cost certainly would include the dollar outlays for a new trial. But the existence of the federal supervisory rule requires such disposition and the only court in this land that can alter the existing rule is the Supreme Court of the United States. The law is otherwise clear, and this court is bound to apply it. Our constitutional guarantee of a fair trial includes the absolute right to an open-minded jury and, as the Supreme Court held in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), with respect to the right to be tried only on felonies charged in an indictment by a grand jury, the denial of such right cannot be treated as harmless error.
B. The Supervisory Standard and the Publicity in this Case
We know that the proposition in Marshall, a federal case, is that
421 U.S. at 798, 95 S.Ct. at 2035. In this case, as stated supra, the defendants were the subjects of a massive wave of media coverage which is without parallel in legal history, which was extraordinarily heavy in Washington, D.C., and which, on the unrefuted record, led some 61% of Washington, D.C. area residents to conclude that the defendants were guilty, before trial, with only some 2% believing them innocent and the rest withholding judgment. On the same record, to a level of statistical near-certainty, this was not the case in such other locales as Delaware, Southern Indiana, and Richmond, Virginia.
The Washington press commentary included substantial, unending vituperative statements, of which these were typical:
See p. ___ of 181 U.S.App.D.C., p. 142 of 559 F.2d, supra. The newspapers were saturated with adverse comments, political satire and cartoons, and even a comic strip attacked the defendants.
This was not a case in which the defendants were asking to go somewhere where the jury pool would represent a clean or neutral slate: it is a case in which they sought simply to go someplace where the smallest possible portion of the jury pool had concluded in advance that they were guilty.
Additional high dollar costs, delay, and change of judge were not involved.
In determining the proper applicability of the supervisory standard declared in Marshall, that case cannot be distinguished from this case on the basis that the jurors had improperly learned of a prior conviction of the defendant, instead of some other adverse information, because Rideau, which was a constitutional case, was reversed
The disclosure in Rideau involved a confession on television before some 106,000 viewers in three separate showings in a population of some 150,000, or nearly two thirds of the populace, assuming some small allowance for overlap in the audience among the three showings. 373 U.S. at 724, 83 S.Ct. 1417. In this case the principal defendants were dismissed from high office in a wave of publicity that led nearly two thirds of the population of Washington, D.C. to believe they were guilty before trial. Moreover, eight of the twelve ultimate jurors actually viewed portions of the television hearings from which the Senate perjury counts were brought (Tr. 634, 842, 937, 1181-82, 1355, 1427, 1680, 1911). There was therefore the obvious possibility that these jurors in the case were actual witnesses to the charged crime, a frequent cause for disqualification as a juror. The adversary nature of those hearings may have created fixed impressions in the viewers and turned them into partial partisans for one side or another. They may have tended to side with Senator Ervin as many did. The percentage of nearly two thirds is the same in both Rideau and this case. In Rideau, the Supreme Court said that for the people exposed to the publicity, the publicity was the trial. 373 U.S. at 726, 83 S.Ct. 1417. The same might be said of the Senate Hearings as presented on television. And Rideau was a state court trial and therefore, a constitutional case. If percentages are to govern there, then it is even clearer that they should govern in a federal case, where a broader standard than the constitutional standard applies.
C. The Evidence from the Voir Dire
The majority opinion explores the voir dire that was actually held subsequent to the denial of the change of venue motion.
The voir dire confirms the conclusion from the evidence that the venue should have been changed at the beginning of the case, on the basis of presumptive prejudice.
The voir dire began with preliminary questions directed to groups of members of the venire, in order to explore such matters as reading the indictment, determining if any person on the venire knew participants in the trial or if they might tend to disbelieve a witness because the witness had pleaded guilty in another case, and to inquire into scheduling or medical difficulties that would prevent those on the venire from serving. Tr. 1-541.
The court then asked a standard set of questions of members individually. This individual questioning produced the panel of twelve that was ultimately charged with the case. Because of the importance of the context and sequence of this individual questioning, and as a typical example for ease of reference, the individual voir dire of one of the twelve jurors, John Hoffar (Tr. 928-49), is set out as Appendix B to this opinion. (Hereafter Hoffar Voir Dire. The other eleven jurors were Gladys Carter (Tr. 607-19), Roy Carter (Tr. 619-34), Ruth Gould (Tr. 832-51), Anita King (Tr. 1075-97), Marjorie M. Milbourn (Tr. 1172-1216), Vanetta M. Metoyer (Tr. 1216-29), Dock Reid (Tr. 1350-61), Jane M. Ryon (Tr. 1420-42), Thelma L. Wells (Tr. 1673-96), Sandra Y. Young (Tr. 1876-1901), and Helen D. Pratt (Tr. 1901-17).
1. The Role of Voir Dire and the Facts of Rideau
The first and singular aspect of the voir dire is that it confirms the pervasiveness of the coverage of this case in Washington, D.C. The trial judge says flatly:
Tr. 487 (emphasis added). And:
Id. (emphasis added).
The heart of the problem thus created is encapsulated by the authors of the ABA
ABA Standards, supra p. 21, at 126 (emphasis added).
The indisputable fact in the majority's own analysis of the voir dire is that the exposure of the venire and final jurors to prejudicial pretrial publicity in this case was at least as heavy as the exposure of the venire and final jury in Rideau. We already know, from the unrefuted record, that not only had well over two thirds (93%) of the entire Washington, D.C. population been exposed to the publicity, as in Rideau, but nearly two thirds thought the defendants guilty. The majority writes:
Majority opinion at ____ of 181 U.S.App.D.C., at 70 of 559 F.2d n.56. But this is exactly the argument which was rejected by the majority in Rideau. As Mr. Justice Clark wrote there, dissenting from the majority's finding of presumptive prejudice:
373 U.S. at 732, 733, 83 S.Ct. at 1422. Nevertheless, the majority of the Supreme Court in Rideau found presumptive prejudice in that constitutional case and thereby held that the trial court should have granted a change of venue before the voir dire was ever reached. In this supervisory case, with its broader standard, and with the virtually costless remedy of a simple and prompt change of venue upon defendants' motion, the result is a fortiori the same. The case law leaves no other exit. To argue
2. The Futility of Voir Dire in this Case
The purpose of voir dire is to enable court and counsel to engage in a rational analysis of a potential juror's attitudes regarding a case. Conclusory and ultimate questions of the nature of "Are you unfairly biased in this case?" are next to useless in such an inquiry.
In the voir dire the trial court restricted its inquiry to what the candidate remembered in particular from the pretrial publicity:
Tr. 509-10 (emphasis added). As put to Juror Hoffar, the court's question was:
Hoffar Voir Dire at 932 (emphasis added), Appendix B infra at ____ of 181 U.S.App.D.C., at 181 of 559 F.2d. As for the other jurors, to the same effect, see Tr. 610, 623, 836, 838, 1079, 1176, 1219, 1352, 1423, 1428, 1678, 1882, 1907.
In thus restricting its inquiry to particular instances, the trial court was helpless in the face of the permanent psychological impact that the whole of the absolutely unprecedented publicity in this case had in the Washington, D.C. area. Given the gigantic scale of the case, the years of publicity, and the inevitable blurring of the avalanche of detail, the restriction of inquiry to particular instances, although earnest and well-meant, was useless. What the court did not recognize was that people forget particulars but do form lasting general opinions and impressions.
Rudolf Flesch, author of Why Johnny Can't Read, explains the futility of the trial court's approach in The Art of Clear Thinking (Collier-MacMillan) 165-66 (1969):
(Emphasis added). Thus, the circumstance that prospective jurors stated they could not recall particulars did not negate the strong possibility that they had formed and retained some general opinions about what they had seen and heard.
Given the record of the unequalled blanket press coverage and the Sindlinger Survey results, Judge Sirica's vow to challenge any person disavowing knowledge of this case, and the jurors' uniform affirmation of familiarity with the case (Tr. 610, 623, 836, 932, 1079, 1176, 1219, 1352, 1423, 1677, 1881, 1907), there is no question that "learning" in the psychological sense had taken place. General and ingrained attitudes were all that remained. Not one of the jurors had any "particular" recollections, save for Juror Gould's single recollection that the "tape part" was important (Tr. 610, 623, 836-51, 932, 1080, 1176, 1220, 1352, 1423, 1678, 1882, 1907). In fact, in juror Milbourn's case the exchange was:
Id. at 1176 (emphasis added). This demonstrates the fallacy of the court inquiring about particulars and refusing to ask what opinions were held.
And in Juror Ryon's case:
Id. at 1423 (emphasis added). In none of the cases, not in Juror Gould's, Milbourn's, Ryon's, or in any other juror's case, was the response to the question of "particular" recollection followed up to learn what, if any, opinion they did hold, notwithstanding the defendants' standing objection that some such effort be made. Without the data from such inquiry, defendants could not test the juror's conclusory statement that he could try the case fairly.
Worse, the failure to inquire into what opinions the prospective jurors did hold gave free rein to the tendency of the jurors toward "omission of all" evidence,
This case is unique—every one of the actual jurors had been exposed to the pretrial publicity; most had witnessed the Senate hearings on television, but over time, of course the "particular" details faded in their minds. This being so, when the court limited its questioning to whether anything particular stood out, it deprived defendants of those tools for finding possible prejudice in the jury that would have been provided by a more penetrating voir dire. But this is only to say that this case is one involving presumptive prejudice, a category already defined by the law, and for which a simple and virtually costless remedy, timely requested
3. Coaching By the Trial Court
Judicial notice may be accorded the fact that, once there has been a screening for those who cannot serve due to medical reasons or personal schedule, many persons on the venire wanted to be picked to serve. The desire is a natural and understandable one. The regular compilations of comments of jurors accumulated by the District Court in this circuit attest to this fact.
For this reason, however, and generally, the trial court should steer clear of giving the prospective juror leading suggestions of suitable answers to be given to accomplish that objective. The obvious first danger to avoid is to not tell a prospective juror the legal standard by which impartiality will be judged before the question itself is asked. The Hoffar Voir Dire is typical and instructive.
The trial court begins by reminding the juror, before the parties and counsel, that his or her selection is at issue:
Hoffar Voir Dire at 928-29, Appendix B infra at ____ of 181 U.S.App.D.C., at 179 of 559 F.2d. Then, the first question on bias is asked in a phrase that warns the juror that, of course, the juror has not yet heard the evidence:
Id. at 930, Appendix B infra at ____ of 181 U.S.App.D.C., at 180 of 559 F.2d (emphasis added). That is a loaded question. The natural inclination, unless a very strong opinion of guilt is held, would be to deny that one believed a person to be guilty, without having heard any of the evidence. The simple inquiry should be, "Do you presently have an opinion as to the guilt of any defendant in this case?" The trial court goes on to say,
Id. at 931, Appendix B infra at ____ of 181 U.S.App.D.C., at 180 of 559 F.2d. And,
Id. (emphasis added). And,
Id. at 938, Appendix B infra at ____ of 181 U.S.App.D.C., at 183 of 559 F.2d (emphasis added). Thus, the prospective juror was told how to answer the court's questions if he wanted to serve.
Later, of course, followed the Court's question:
The defendants had objected to this technique:
Tr. 537.
But the objectionable practice continued. Advertently or not, these preambles to key questions could only add to the possibility of biased, unrevealing, and conclusory responses. The voir dire was thus improper and unrevealing of critical attitudes. Certainly, with 93% of the venire having prior knowledge of the case (Appendix A at ___ of 181 U.S.App.D.C., at 178 of 559 F.2d), at some point the prospective jurors should have been asked: "What opinion did you reach?" They must have arrived at some opinion, and the parties were entitled to know what that opinion was.
4. The Trial Court's Standard of Juror Neutrality
The standard of neutrality used in this case was stated by the trial court:
Hoffar Voir Dire at 940, Appendix B infra at ___-___ of 181 U.S.App.D.C., at 183 of 559 F.2d. But this misses the complete test of neutrality by a significant omission. Particularly in notorious cases, saturated with publicity, the accurate test includes the prerequisite that the prospective juror at the outset of the case have no opinion as to guilt "which would require evidence to remove." Beck v. Washington, 369 U.S. 541, 557, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962) (emphasis added).
In the June 12, 1974 hearing on the change of venue motion, the trial court pointed out how the voir dire was used in other highly publicized trials in which he participated. Supra, pp. ___, ___ of 181 U.S.App.D.C., pp. 147, 148 of 559 F.2d. Reference to still other notorious cases is instructive as to the use of an accurate and scrupulous test of neutrality. Perhaps no better example lies in our legal history than the trials resulting from the Teapot Dome Scandal.
Prior to the Watergate affair, the investigations and trials of the principals in the Teapot Dome Oil Scandal generally held the modern day American record for sustained interest and publicity. Of course, today, with television, wider radio reception, and the entire news media vying with each other in what has come to be called investigative journalism, the publicity resulting from the Watergate break-in, the trial of the participants, the Senate (Ervin) Investigating Committee, the House impeachment hearings, the resignation of the President, the issuance of a presidential pardon, and the subsequent indictment and trial of appellants has far exceeded that of Teapot Dome.
The present case, involving as it does high federal officials in a criminal trial with substantial political overtones and a tremendous amount of pretrial publicity are in those respects similar to the Teapot Dome trial of Albert B. Fall, Secretary of the Interior in the Harding administration (Fall
Secretary Fall was tried on a charge of bribery for allegedly receiving $100,000 from Edward L. Doheny to influence his decision in awarding the construction contract for certain oil storage tanks in Hawaii and for the delivery of "royalty oil" from Naval oil reserves to the corporation of which Mr. Doheny was president.
Without exception, the standard applied was whether the prospective juror had an opinion at the time he was examined that would take any evidence to set aside. If his mind was in that state he was excused by the court without any further argument.
The following references to the voir dire in that trial indicate the standards and interrogation procedures that were applied by the court, the defense, and the prosecutor in seeking an impartial jury. The first juror to indicate that he had an opinion was asked, "When you came into court today you did not have an open mind?" His reply was that it would take evidence to remove the opinion that he already had. He was thus, without more, challenged and excused (Tr. 12-13).
The next juror that indicated he had formed any prior opinion was asked whether he would "require evidence to remove that opinion" (Tr. 17), and when he indicated that he would he was excused. One juror who admitted to a "slight opinion" only, but who on further inquiry indicated that he would want "evidence to reverse" that slight opinion, was challenged and excused notwithstanding his assertion that he could lay aside that slight opinion. In contesting the challenge of this juror by the defense, one of the prosecutors, Mr. Roberts (later Justice Roberts), stated the standard he thought should be applied when he addressed a question to the juror, inquiring whether that juror could utterly lay aside any opinion formed tentatively at the start, listen to the case from start to finish, and form an opinion from the evidence and that only. The juror replied "I think so" (Tr. 47-48), but he was nevertheless stricken and excused by the court on the challenge of the defense because he had previously indicated it would take some "evidence to reverse" his opinion. Another juror who stated that he had heard about the case was asked whether he would go "into the jury box . . . with a clear mind" (Tr. 59). This is an entirely different standard from that used here of inquiring whether the venireman had a "fixed opinion" that would prevent him from following the court's instructions "at the end of the case."
Another venireman, who was excused, stated that he read quite a bit and formed an opinion, and he was asked whether he would be "starting afresh." He replied "I would be going in with a little load on my shoulder." When this situation developed, Mr. Roberts inquired "without the Government having opened its mouth or offered any evidence, you would be inclined to think that you would want to hear what the defense would have to say." "Yes." Excused (Tr. 100).
Another venireman admitted that he had read newspapers five years previously and that he would have formed an opinion at that time, but he stated: "Don't know that I formed an unalterable opinion." He was then asked if he "would want some evidence before [his opinion] could be changed." His affirmative answer resulted in his discharge from the jury (Tr. 112).
It is clear from this history of the Teapot Dome trial that the court applied the standard that, regardless of the strength of the opinion held by the venireman, if it would take any evidence to set aside that opinion, the venireman did not possess the requisite open mind at the start of the trial that was required of a juror in a criminal case and was not qualified to sit on the jury.
Because of the Supreme Court's several citations of the specific question as to whether it would take evidence to set aside a juror's opinion, the importance of that question in this case is evident. As noted, the allusion in Beck, supra, was to an opinion "which would require evidence to remove." In Irvin v. Dowd, supra, the Court wrote:
366 U.S. at 728, 81 S.Ct. at 1645 (emphasis added). It thus appears that the voir dire there inquired according to the proper standard. The foregoing passage from Irvin v. Dowd is specifically noted in Murphy, supra, 421 U.S. at 798, 95 S.Ct. 2031.
However, unlike the interrogation of the venire in the Teapot Dome case, the voir dire here generally tended to be confined to questions that sought in a black or white way to determine whether the person being questioned had a definite opinion as to guilt or innocence rather than attempting to ferret out what in-between views and leanings he did have based on all he had seen and heard. The broader inquiry, however, was necessary in order to permit counsel to form the judgments necessary for an intelligent exercise of their challenges to the venire. But the court relied on bare statements by the juror that he did not "have any prejudice, bias, sympathy or fixed opinion" and that he could "render a fair and impartial verdict . . .." (emphasis added). (Hoffar Voir Dire 939, Appendix B infra at ___ of 181 U.S.App.D.C., at 183 of 559 F.2d). The defense objected to this:
Id. at 946-47, Appendix B infra at ___-___ of 181 U.S.App.D.C., at 186 of 559 F.2d (emphasis added). Hoffar was then called back for additional questioning, but again the interrogation related to opinions on "guilt or innocence." When the one question was asked whether he had an "open mind" and the reply was, "As far as forming a definite opinion, I have an open mind" id. at 945, Appendix B infra at ___ of 181 U.S.App.D.C., at 185 of 559 F.2d (emphasis added), no attempt was made to determine from this equivocal answer how far his mind was short of a definite opinion or whether he held any opinions that might take evidence to erase.
The relevance of the court's disposition on the basis of whether one is an "intellectual" or has "common sense" is not apparent. The issue was the scope of the questioning.
The trial court's questioning in most instances simply did not probe sufficiently to permit counsel to have a fair opportunity to obtain a jury that was assuredly qualified under the proper standard. Given the trial court's rejection of the change of venue motion and its own protestation that it would rely heavily and exclusively on the voir dire, supra, p. ___ of 181 U.S.App.D.C., p. 147 of 559 F.2d, the standards of the Teapot Dome court were the least that defendants were entitled to under the law.
5. The Real Possibility of Political Prejudice
Political bias can also be a basis for prejudice, and so can itself be a basis for changed venue. This is made clear in United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed.1137 (1951), a case in which Dennis was charged with conspiring to organize the Communist Party of the United States to overthrow the government of the United States by force and violence, in violation of Section 3 of the Smith Act, 18 U.S.C. § 2385. In rejecting appellant's claim that it was impossible to seat an impartial jury, the court wrote:
183 F.2d at 226 (emphasis added).
The public record is that Washington, D. C. is unique in its overwhelming concentration of supporters of the Democratic Party, as opposed to the Republican Party to which the defendants here belonged. The Statistical Abstract of the United States (1973) indicates that the candidate of the Democratic Party for President in 1968 received 81.8% of the total vote cast in the District of Columbia and in 1972 received 78.1% of that vote. The closest state to the District of Columbia in the 1968 election was Massachusetts with 63% of the vote cast for the Democratic Party candidate for President and in 1972 with 54.2% of the vote cast for President. Id. at 367. Thus in 1972 the vote for President indicates that the voters of the District of Columbia favored the candidate of the Democratic Party by 44% more than the voters in the next most Democratic presidential voting area in the union. In 1972 the voter turnout in the District of Columbia was 31.5%, but a sample of that magnitude of the population is certainly indicative, and four of the sitting jurors had participated in or contributed to campaigns (Tr. 634, 834, 1174, 1674). The trial court here denied defendants' request to know to which party contributions were made (Tr. 568), whereas Teapot Dome jurors were interrogated as to "whether politics or political parties" would affect their
This case differs from Dennis in that in Washington, D. C., there most emphatically does appear to be a unique island of political bias, and in this case, with its massive political aspects, it would be futile to ignore the possibility that prior to the trial potential jurors may have formed prejudgments of the case based on their political affiliation or leanings. The obvious possibility of an extraordinarily high concentration of bias against the Republican Party defendants, in light of the simple and virtually costless venue remedy available to the trial court, buttressed the facts which required changed venue.
CONCLUSION
It is submitted that there is no principled basis upon which the presumptive prejudice in this case can be distinguished from that in Rideau and Marshall. The law is that the defendants should have been granted a change of venue on the basis of their May 1, 1974 motion. The law, as it has always previously been applied by this court, is also that this case must be reversed and a new trial granted because of that error.
THE CONVICTIONS ON COUNT 2
I. MISUSE OF THE CIA
The remainder of this opinion must deal with a mystery. All my colleagues normally are very quick to notice plain error, particularly in courts' instructions. So, one must wonder why they insist here upon affirming a conviction on just one count that involves obvious plain error in the court's instructions: the error being that the trial court instructed the jury they could return a guilty verdict on the offense charged in Count 2 solely on the ground the defendants committed an offense not charged in Count 2 of the indictment returned by the Grand Jury.
It is relatively unimportant to the appellants whether the convictions on Count 2 are upheld because the sentences are concurrent and the conviction on Count 1 involves a consummated conspiracy to obstruct justice and to defraud the government agencies. Thus, for this court to act appropriately on the error would not involve any lesser sentence or in any way lessen the nature of the convictions. But it is of the gravest moment what my colleagues do to the law because that will be applied to future cases. We should not confound the law on indictments in this circuit. We are not writing law just for this case alone. Our error will come back to plague us in future cases and the public will eventually suffer.
II. THE HUSH MONEY COUNT
Count 2 of the indictment is the so-called "hush money" count.
(Emphasis added). In the indictment this alleged offense followed Count 1, the conspiracy count.
On its face, Count 2 does not specifically allege that the defendants misused the CIA in any way in their obstruction of justice. Basically it charges an attempt to obstruct justice by concealing the identity of those responsible for initiating the Watergate break-in through (1) payments of "hush money" and (2) offers of moderate sentences or eventual pardons, (3) "and by other means." During the trial substantial testimony was admitted on the conspiracy count that might fairly be characterized as indicating that the defendants did misuse that agency in an attempt to defraud the government. This evidence was admissible to prove the allegations of Count 1 that such acts constituted one of the means used by the appellants in their conspiracy to defraud the United States.
III. THE INSTRUCTION
At the close of trial, however, notwithstanding the absence of any reference in Count 2 to the use of any government agency in causing the unlawful obstruction of justice, the court instructed the jury as follows:
Tr. 12,383 (emphasis added). The jurors were thereby instructed that any evidence of the misuse of the CIA that was admissible to prove the conspiracy alleged in Count 1 could do double duty and also serve as the sole basis for their returning a guilty verdict on Count 2. Appellants point out the obvious error in such instruction, i. e., that the Grand Jury had not included defrauding an agency of the United States in the "hush money" obstruction of justice charged in Count 2 and that it was thus reversible error to charge that "misuse of the CIA" alone could constitute the offense charged in Count 2.
IV. THE GOVERNMENT'S CONTENTION
On this point the Government contends that such evidence was admissible because the indictment charged that the offense was also committed "by other means," and that the defendants were not surprised by this evidence.
V. APPELLANTS' CONTENTIONS
In response to the Government's contention that sole reliance on such "misuse of the CIA" evidence was permissible, appellants contend it was plain error because the allegations of "other means" in Count 2 of the indictment did not refer to or include any charge beyond the payment of "hush money" or offering other benefits and does not permit the use of evidence to support the charge that is not similar to the "other means" charged in the indictment. As appellants frame the point, obstructing justice by "misusing the CIA . . . is not in pari materia with the allegations that [defendants] . . . made cash payments and offers of other benefits to the [Watergate break-in] defendants. . . ." Haldeman Brief at 116.
VI. EJUSDEM GENERIS
The term in pari materia is generally used to refer to statutes on the same subject matter.
Otherwise stated the interpretative rule of ejusdem generis applies. Under this rule, the "other means" alleged in the closing phrase of Count 2 is to be given its normal meaning referring to other "means" of the same general class as those previously alleged, i.e., to payments of money and offers of other benefits. But the majority attempts to avoid the rule and the natural implication and intention indicated by the phrase "by other means," by arguing that "if it [the phrase] is so construed it adds little if anything to the second means named, i.e., offers of other benefits." Id. That is precisely what it should do—add little—particularly in an indictment where some factual specificity is required. It should not open up a door bigger than the barn, but that is what the majority contends. Nor is it superfluous. It should be remembered that the concluding phrase is not restricted to the "offers" but also applies to "making cash payments." Giving the phrase "other means" its normal meaning of limiting it to acts that are similar to making cash payments and offers of other benefits would permit the introduction of evidence of consummated benefits which were not just offered, to cite only one possibly material application of the phrase. In like vein, it would be permissible to introduce the equivalent of cash payments made by checks, credit cards, etc.
While ejusdem generis is not applied where a different intention is indicated, it is particularly applicable in interpreting this indictment because no contrary intent is indicated. To say that the phrase "by other means" was intended to embrace undefined extraneous matter would be to suddenly depart from the particular to the general—from the particular subject of specified benefits into a general field of wide and indefinite scope so that any evidence of obstruction of the investigation by the Grand Jury or FBI would be admissible. Sound criminal pleading does not permit such free wheeling with the factual allegations of an indictment. Heretofore, the established law required indictments to be more informative than that.
The "by other means" allegation must thus be interpreted to authorize only proof of other criminal acts which were similar to
VII. THE COURT'S INSTRUCTION
Therefore, the court's instruction, which informed the jury that they could return a guilty verdict if they found any "misuse of the CIA" constituted an impermissible amendment of the indictment. This amounts to reversible error because it permitted the jury to find guilt on Count 2 solely on the evidence of the unalleged misuse of the CIA to curtail the FBI investigation,
This charge to the jury definitely instructed that any misuse of either would be a sufficient basis for a guilty verdict. As stated above, this was error. The factual allegations of Count 2 cannot be construed as giving appellants any notice of the wholly unspecified charge upon which the court instructed the jury they could find appellants guilty on that count. For us to hold otherwise would have the effect of changing Count 2 from one based on claims of "hush money" and other offers of clemency (hush offers), to one based on obstruction by defrauding a government agency. If the Grand Jury had intended that appellants should be prosecuted on the latter theory it would have been specifically included "defrauding an Agency of the United States" in the count along with the hush money and clemency allegations.
In United States v. Alston, 179 U.S.App.D.C. 129, 551 F.2d 315 (1976), Judge Bazelon, in reversing for a defect in a court's instructions, raised sua sponte on appeal, said:
VIII. THE RULE IN STIRONE V. UNITED STATES
Normally, in view of the strength of the evidence on Count 2 as charged, one would consider that the error we have pointed out could be considered harmless. That was my original approach to the problem and the conclusion of my original draft of this phase of the majority opinion, but I eventually found such disposition to be prevented by the authority and logic of Justice Black's opinion in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). In that case the Supreme Court held that where a jury was instructed that they could base a conviction solely on a finding of an offense not charged in the indictment the conviction must be reversed, regardless of the harmless error rule, because the defendant had an absolute right to be tried only on felony offenses charged by the grand jury.
The indictment in Stirone charged a Hobbs Act offense of unlawfully interfering with interstate commerce involving the shipment of sand for a ready-mix concrete plant, brought into Pennsylvania from other states. During the trial, in addition to evidence of the impairment of commerce in sand, evidence was also admitted, over objection, of a potential effect on interstate commerce involving shipments of steel from a plant in Pennsylvania into other states. This commerce in steel was not alleged in the indictment. And there, as here, the judge charged the jury that it could return a guilty verdict solely on a finding of the offense that was not charged in the indictment, i.e., that the concrete was used for constructing a steel mill which would manufacture steel to be shipped in interstate commerce. The Supreme Court held
The court reasoned, in view of the trial court's instruction, that it could not be said with certainty that Stirone was not convicted "solely" on the offense charged by the grand jury in the indictment. That is the precise situation here. Thus, while the trial court in Stirone did not formally amend the indictment, "the effect of what it did [by the instruction] was the same [and that] variation between pleading and proof . . destroyed the defendant's substantial right to be tried only on charges presented in an indictment returned by a grand jury." 361 U.S. at 217, 80 S.Ct. at 273.
It was the denial of the constitutional right of every defendant to be tried only on charges laid by a grand jury that led to the reversal in Stirone.
361 U.S. at 217-18, 80 S.Ct. at 274. (emphasis added).
The factual situation here is indistinguishable from that in Stirone. Had the grand jury intended to indict defendants in Count 2 for obstructing justice by a defrauding of federal agencies through their misuse they would certainly have included such charge in the indictment. The evidence thereof was sufficiently voluminous so that we cannot assume that it was overlooked, and we are fortified in this conclusion by the several allegations in the conspiracy count (Count 1) that effectively charged misusing the CIA (defrauding an agency of the United States).
The conspiracy count also charged obstruction of justice (18 U.S.C. § 1503) as the first object of the conspiracy, and because of appropriate allegations, the evidence of obstructing justice through misuse of the CIA could be relied upon in proof of the conspiracy count. But the more specific allegations of Count 2, because they never alleged a misuse of the federal agencies, did not permit the court to instruct the jury that the evidence which was only admissible on Count 1 could do double duty and also furnish the basis for finding the defendants guilty on Count 2 of obstructing justice.
The further assertion is made by the majority opinion that appellants were not prejudiced by the court's erroneous instruction because of the overwhelming proof of guilt. But the teaching of Stirone is that where there is overwhelming proof of quilt of an offense not charged in the indictment returned by the grand jury the conviction on that count must be reversed.
IX. THE APPLICATION OF STIRONE
Under Stirone the judgments of conviction on Count 2 should therefore be reversed. This in no way would interfere with the conviction on any other count nor would it result in any diminution of the sentence of any defendant. My colleagues have normally been very alert to correct such elementary errors, particularly when the overall sentence would not be affected in any way, but as above stated, for some unexplained reason they do not seem to be similarly motivated by the error in this count. A defendant could not know he was charged with obstructing justice by defrauding a government agency (e. g., the CIA), if the indictment alleged he obstructed justice by making cash payments and promises of benefits and by other similar means.
X. THE NECESSITY FOR FACTUAL ALLEGATIONS
In discussing this issue the majority opinion gets lost between Rule 7 and the decided cases and never come to grips with the requirement that "the essential facts constituting the offense charged" must be stated in the indictment. Rule 7(c) Fed.R.Crim.P. In a clever play on words the majority substitutes "elements" for "facts" to attempt to obviate the requirement that the elements must be factually alleged. The cases cited by the majority are better authority for the converse of its assertion. For instance, consider the recent decision in Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974):
(Emphasis added). No further authority is needed to point out the error of the majority's position on this point. To state, as the majority does, that Hamling charged the offense "only in the statutory language of 18 U.S.C. § 1461" is erroneous. A mere look at the opinion in the Ninth Circuit discloses that in each count the specific "Brochure" which was allegedly obscene was specifically referred to. 481 F.2d at 307. What greater factual specificity was needed? The law just does not permit the complete absence of factual allegations in indictments that the majority now claims. Also, Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962):
(Emphasis added).
In a conclusory statement, which does not state the particular objection to which it refers, the majority asserts that "Rule 7(c), in fact, expressly sanctions indictments in the language to which Haldeman objects," Majority opinion at ____ of 181 U.S.App.D.C., at 125 of 559 F.2d (emphasis added). This amounts to a finesse and a failure to deal with the real complaint. Appellants do not attack the indictment. The indictment is good. It alleges certain specified crimes. Appellants do attack the court's instruction because it exceeded the indictment. So much for the attempt to divert the discussion to issues that nobody is raising.
Basically, the majority, by direction and indirection, is attempting to assert that requiring an allegation of defrauding the government by misuse of the CIA concerns only an evidentiary particular—a means—and any deficiency may be cured by a bill of particulars. Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 86 L.Ed. 680 (1942) is relied upon (Majority opinion at ___ of 181 U.S.App.D.C., at 125 of 559 F.2d), and along with Burton v. United States, 202 U.S. 344, 372-73, 26 S.Ct. 688, 50 L.Ed. 1057 (1905), is frequently cited for the proposition that "particulars need not be included in an indictment." I agree wholeheartedly, but we are not talking about particulars or evidentiary details when we talk about requiring an allegation of "defrauding the government"—that is a basic factual allegation of a specific crime which must be charged by a grand jury or not at all. A mere glance at Glasser and Burton will convince anyone that my colleagues' view of the law is incorrect. What Glasser is talking about is that
315 U.S. at 66, 62 S.Ct. at 463 (emphasis added). But that is a far cry from holding that a general statement of the specific factual allegation that identifies the offense is not required. Such is a requirement. When one examines the extensive factual allegations (set out in n. 23) that were made in the Glasser indictment, it is apparent that my colleagues are wide of the mark on this point.
It can be seen from the foregoing cases that the specific factual allegations of those indictments did identify the offenses and that what the cases hold is that it is not necessary to allege detailed evidence. That is not this case. The majority opinion would support an indictment that charged
Such indictment does not allege the "essential facts constituting the offense," and the Grand Jury so recognized. It accordingly alleged facts to identify the specific offense it was charging, i. e.:
(Emphasis added). All these facts are necessary to identify the particular offense with which defendants were charged.
Merely saying that the defendants are charged with obstructing justice in the Grand Jury investigation is obviously insufficient to allege the factual elements that are essential to a valid indictment. It was necessary to allege that the defendants did this "by making cash payments and offers of other benefits" for the stated purpose. These facts identify the offense, not merely the target or objective. They are not evidentiary
A similar allegation of "defrauding the CIA" was necessary if evidence of "misuse of the . . . CIA" alone was to constitute an offense. "Misusing" the CIA might be an evidentiary detail if it were admissible under some more general factual allegation, but unless there is an allegation that defendants "defrauded the CIA" as an agency of the United States, such evidence is not relevant to any offense that is factually charged in the indictment. It is obviously wide of the law to permit a conviction to stand on evidence of "misusing the . . CIA" where there is no allegation whatsoever that the CIA was defrauded. Thus, the requirement that the indictment contain such general factual allegation before evidence of misusing the CIA alone can furnish the basis for a conviction on that count does not concern an evidentiary particular.
XI. THE INTERPRETATION OF THE INDICTMENT
Nor is the interpretation of the indictment by my colleagues a permissible one. Ejusdem generis is clearly applicable and the requirement for the application of this elementary rule cannot be dismissed with a trite objection to "incanting these Latin phrases" (Majority opinion at ___ of 181 U.S.App.D.C., at 127 of 559 F.2d). If that constituted any semblance of a viable judicial answer any judge could dispose of habeas corpus, corpus delicti and res judicata by a mere stroke of the pen. My colleagues in this opinion certainly obliterate stare decisis with respect to the law on indictments. Who knows, maybe dominus vobiscum and e pluribus unum are next on their list. However, ejusdem generis is clearly applicable here and I am surprised with my learned colleagues' unfamiliarity with this very elementary, but basic, rule of construction. Ejusdem generis does nothing more than apply the normal meaning of such words in such context. My colleagues, however, claim
Majority opinion at ___ of 181 U.S.App.D.C., at 126 of 559 F.2d. The majority would thus broaden the indictment beyond the facts alleged. Just where it would stop they do not say. They would permit the conviction of defendant at trial on the basis of any evidence of obstruction, whether it was alleged or not, and they would bar any subsequent prosecution for obstruction of justice which defendants committed during this period. This is patently an erroneous statement and application of the law. The massiveness of its error defies description.
For instance, assume defendants were acquitted on Count 2 and it was discovered before trial that they had caused the killing of a material witness, Mrs. Hunt, so she could not testify against them before the Federal Grand Jury. There would be no doubt that they could subsequently be charged with so obstructing federal justice. Or assume it was discovered before trial that the defendants had threatened several Grand Jurors who were hearing the case and those jurors had obstructed the Grand Jury investigation. Certainly such offense could be indicted after the trial. And I challenge the majority to state, if either of such offenses were discovered prior to trial, that they could be proved under the allegations of Count 2. To say that evidence of such offenses could be admitted under an indictment charging the making of cash payments and offers of other benefits and other means, and that a conviction could rest solely on evidence of the subsequently discovered offenses of murder and jury tampering, is patently ridiculous. The majority opinion thus grossly misstates the
XII. THE INTENT OF THE GRAND JURY
It is also rather clear, if one studies the indictment, that the Grand Jury never intended to include the charge of obstructing justice by delaying the investigation through a defrauding of the CIA as part of the obstruction of justice alleged in Count 2. A mere reading of Count 1 plainly shows that the Grand Jury charged that one object of the conspiracy was "to defraud the . . . CIA," but after that allegation was made in Count 1, the Grand Jury made absolutely no mention of the CIA in Count 2. So the Grand Jury was thoroughly aware of the facts. Had it intended to include such activities in the obstruction of justice count all that was required was to insert in the indictment:
after the phrase "September 15, 1972." Such would be a general factual allegation and obviously is not an evidentiary particularization. But no such allegation was made.
Because of the extreme prominence of the CIA activities in the charged offenses one cannot argue that the grand jury forgot them. It rather appears that it considered that Count 1 sufficiently set forth the offense they wished to indict upon, particularly because it alleged a consummated conspiracy. The Grand Jury could thus have been motivated not to follow the practice, which is much objected to by some, of charging both a consummated conspiracy and a substantive offense to commit the same crime.
This result may also have been dictated by the peculiar statutory status of the offense of defrauding an agency of the United States. There is no such general substantive offense in the federal statutes. Such acts are only covered in the conspiracy statute which makes it an offense to "conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof . . ."
The failure of the indictment to include "perjury" in its factual charges alleged in Count 2 is another indication that the Grand Jury intentionally excluded misuse of the CIA from Count 2. Misuse of the CIA and perjury were both specifically alleged as objects of the conspiracy charged in Count 1 and both were equally probative on the issue of obstructing justice, but the Grand Jury never included either charge in Count 2. Had the Grand Jury intended the perjuries to be included in the factual elements of the obstruction charge it would have alleged "perjury" at least. All that would have been needed was the one word added to the indictment. And it cannot be said that the Grand Jury overlooked "perjury" because all the other twelve counts of the indictment did include some allegation of perjury or misstatement. The conclusion is thus irrefutable that the Grand Jury did not intend to include in Count 2 accusations of offenses that were made elsewhere in the indictment but which were completely omitted from Count 2.
Another reason which makes it clear why the Grand Jury did not intend to include defrauding the CIA in Count 2 is that Parkinson
Acutely conscious of the evidentiary limitations, the Grand Jury drafted a neat count in which the offense was stated to have been committed by making cash payments, offers of other benefits, and by other similar means. Its handiwork should not be marred by an improper instruction and an unsound appellate affirmance—that would be impossible to live with.
XIII. THE BILL OF PARTICULARS
Also, contrary to the majority opinion, there is nothing in the record to support the assertion that appellants "abandoned the request" for a "bill of particulars as to the meaning of the phrase `by other means' . . . presumably because it had been satisfied." Even if they had there is no claim by the Government that it ever asserted a right or an intent to introduce evidence that the investigation was delayed through a defrauding of the CIA in support of Count 2 where such offense was not alleged.
Further, in an attempt to justify the admission of the evidence of misusing the CIA that was alleged in Count 1 in proof of the substantive offense charged in Count 2 the majority seek refuge in a reply made in a bill of particulars:
Majority opinion at ___ of 181 U.S.App.D.C., at 128 of 559 F.2d. This proves exactly nothing so far as this appeal is concerned. The fact that the substantive offense of obstructing justice by making cash payments, offers of benefits and by other similar means, as alleged in Count 2, was among the objects of the conspiracy charged in Count 1 does not make all the objects of the conspiracy as alleged in Count 1 part of the substantive offense charged in Count 2. No person ever contended that the substantive offense alleged in Count 2 was not among the objects of the unlawful conspiracy alleged in Count 1. It is exactly the reverse of this that the majority would have to prove to sustain their position, i.e., that the conspiracy to misuse the CIA to limit the FBI investigation as charged in Count 1 was included in the offense charged in Count 2. This the majority has not demonstrated and its feeble attempt to confuse the issue by referring to a converse situation is proof of the lack of merit in its position.
XIV. THE "BY OTHER MEANS" ALLEGATION
That appellants did not move to strike "by other means" from the indictment proves nothing. There was nothing improper or illegal about the use of the phrase. The defendants had a perfect right to assume it would be given its normal meaning and construed to refer to "other similar means" and as such it was unobjectionable. As above stated, the abuse of the phrase was not by its inclusion in the count but by the court's interpretation of it in its closing instruction.
United States v. Caine, 441 F.2d 454, 456 (2d Cir. 1971) and United States v. Mayo,
As for Mayo, the decision held that an allegation "among others" to be proper because in the context of that indictment it did not constitute
230 F.Supp. at 86. The phrase there was included in a paragraph which went "to the matter of proof to sustain the charges"; i.e., to evidence. Here, the majority seeks to use the phrase "by other means," not to support the introduction of "matter of proof to sustain the charges," as in Mayo, but as a wedge to enlarge the Grand Jury charges to include a different factual offense than the ones alleged in the indictment.
In any event, no person contends that the phrase is invalid, but only that it should be given the meaning the Grand Jury obviously intended. The Grand Jury never intended to include defrauding the government by delaying the investigation in Count 2. Had it so intended the very competent prosecutors were more than sufficiently knowledgeable to accomplish that result.
XV. THE CONSPIRACY ARGUMENT
My colleagues also make the weird contention that the instruction as to Count 2 was unobjectionable because the evidence was admissible under Count 1. That is an unbelievable argument—to assert that defendants are not prejudiced by convictions on two counts on the basis of evidence that is admissible only on one count. I will be anxiously waiting for my colleagues to apply that law in the future to other cases.
Actually the majority has hit exactly upon what it is trying to do by its CIA argument. It is trying to make a second conspiracy count out of Count 2. In the heat of the trial the court made the same mistake and instructed the jury: "Count Two charges all of the defendants except Mr. Mardian with actually carrying out the agreement to obstruct justice which is charged in Count One." (Tr. 12,378) (emphasis added). But the Grand Jury knew it could not hold the acts of certain defendants in a substantive offense against other defendants, as is done in a conspiracy count with acts of coconspirators committed in furtherance of the conspiracy. It refused to charge in the obstruction count that Parkinson participated in delaying the investigation by a defrauding of the CIA because he was not in any way involved in any of the CIA activity. Since the Grand Jury never so charged Parkinson in that count it never charged any of his co-defendants that were named in the count.
It is elementary law that absent a cross-reference one count in an indictment cannot be amended at trial to insert allegations from another count. One would have though it was not necessary to assert such an elementary rule of law to this court. Nevertheless the majority opinion contends:
Majority opinion at ___ of 181 U.S.App.D.C., at 128 of 559 F.2d (emphasis added). What a statement! There is absolutely no allegation whatsoever in Count 2 about defrauding the United States or about conspiracy. Or for that matter about perjury. This argument in the majority opinion makes it plain that it is trying to convert Count 2 into another conspiracy count. One conviction on a single conspiracy is all that this court has previously allowed. It is plain error to permit "the allegations of conspiracy . . . to defraud the United
The sufficiency of the evidence on the conspiracy count is not an issue here. What is objected to is permitting a small portion of that evidence, offered in proof of the consummated conspiracy alleged in Count 1, to constitute the sole basis for the conviction on Count 2. Heretofore this court has always considered that it was immaterial what the evidence disclosed as to some other offense if a defendant was convicted on an offense that was not charged in the indictment. This was so because we considered that all defendants have a constitutional right to be tried only on felonious offenses that have been charged by the grand jury.
To support its decision here, to the contrary of this basic constitutional principle, the majority opinion attempts (at ___-___ of 181 U.S.App.D.C., at 127-129 of 559 F.2d) to distinguish Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). It fails. It points only to evidentiary differences in the details of the two crimes. It is true that there are such differences—no two cases involve the same evidence—one is an interstate racketeering case and this case alleges obstruction of justice. But the controlling issues in the two cases are identical in that in both instances the trial court charged the jury that it could return a guilty verdict solely on evidence that supported an offense not charged in the indictment. All the attempts by the majority to pick out differences in the nature of the two offenses, in the evidence and in the jurisdictional base, cannot escape the complete identity of the two cases on that one controlling aspect. And that is all that matters. Stirone completely controls here.
XVI. THE GENERALITY OF THE INDICTMENT
The majority also tries to make a point that Stirone "suggested that if the indictment had been more general Stirone's conviction would not have been reversed" (at ___ of 181 U.S.App.D.C., 128 of 559 F.2d). This is a good point, but it does not aid my colleagues—because the indictment there was not "more general" and neither is this indictment. The underlying point is that the obvious intent of the grand jury prevails and the fact that the indictment might have been more general is insufficient to permit the return of a guilty verdict on evidence that might have been admissible on a more general indictment. That rule applies here with equal force. To paraphrase Stirone:
361 U.S. at 218, 80 S.Ct. at 274.
The majority attempts to make a similar argument for excessive liberality in construing indictments out of the provision in Rule 7(c), Fed.R.Crim.P., which states that an indictment may allege "that the means by which the defendant committed the offense are unknown . . ." This, however, does not eliminate the necessity for the indictment alleging sufficient facts to identify the specific offense that was committed by the accused in some unknown way, i.e., that the defendants delayed the investigation by means unknown to the Grand Jury. In any event, the means here were not unknown—Count 1 specifically alleged "defrauding the . . . CIA" and the same allegation could easily have been included in Count 2 if the Grand Jury had intended to include it. That it did not do so indicates it did not intend to allege such offense.
XVII. THE AMENDMENT OF THE INDICTMENT
As the majority opinion above indicates, it would actually amend Count 2 by reference to the allegations in Count 1:
(Majority opinion at ___ of 181 U.S.App.D.C., 128 of 559 F.2d).
As pointed out above, the breadth and importance of the allegations in Count 1 on the CIA and its failure to make even a slight reference to such charges in Count 2, when only a slight reference was needed, indicates that the Grand Jury did not intend to charge the defendants twice for a consummated conspiracy and the substantive offense of conspiracy to defraud a United States Agency.
Why the majority insist on failing to apply our established law which would reverse the conviction on this single count remains a mystery. If this law is applied in the future it will be impossible to live with.
For the foregoing reasons
APPENDIX A
SINDLINGER AFFIDAVIT
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Criminal Case No. 74-110
United States of America
v.
John N. Mitchell, et al., Defendants
AFFIDAVIT
ALBERT E. SINDLINGER, being duly sworn, deposes and says:
1. I am the chief executive officer of Sindlinger & Company, Inc. of Swarthmore,
2. I am a member of the American Statistical Association, National Bureau of Economists and many other professional organizations. I have prepared survey material for and have testified in connection with the matters before the Congress of the United States, federal administrative agencies and courts.
3. The public opinion survey referred to herein was conducted from April 12-21, 1974, and was performed under my direct supervision and control. We employed a national sample of residential telephone numbers in 487 counties within the 48 contiguous states of the United States. These 487 counties were selected by computer on a random basis and individual telephone numbers were then selected within those counties, also by computer on a random probability basis. This process produces a selection of residential telephone numbers which is representative of the national population as a whole. Since we had also been requested to survey opinions within certain specific areas we derived additional samples for the counties within those areas which were not included within the counties which comprised our national sample. We used local telephone books in these additional counties to select residential telephone numbers on the same random probability by population basis as was employed for our national sample. The samples so derived were statistically representative of the population of the specific areas which we have been requested to survey.
4. The specific areas which were selected for survey in addition to the nation as a whole were:
We also initiated a survey in the Eastern District of Pennsylvania, but that survey was not completed.
5. We utilized the following survey methodology. The telephone number shown by our sample was called. If the person answering the telephone was female, the surveyor would determine whether there was a male over the age of 18 in the
6. Those persons who stated that they were registered voters were then asked a series of Watergate related questions. These included:
They were also asked a question which sought to identify the basis of their opinion, as follows:
7. The tabulated results
Indianapolis Richmond
Division Division
District Southern Eastern
United of District of District
States Columbia Delaware Indiana of Virginia
______________________________________________________
Have you ever read or
heard anything about
the fact that a number
of President Nixon's
former aides have been
indicted for covering
up the Watergate
affair?
Yes 91% 93% 97% 92% 88%
No 7% 6% 3% 5% 9%
Not Sure 1% 1% - 1% 1%
No Opinion 1% 1% - 3% 2%
Thinking of Nixon's
former aides who are
now under indictment
— do you have an
opinion on their guilt
or innocence? [Response
of those who knew of
indictments.]
Yes 58% 73% 64% 55% 50%
No 26% 15% 21% 33% 27%
Not Interested 1% 1% 1% 1% 1%
Don't Know/No
Opinion 15% 11% 14% 12% 21%
How do you personally feel, do you feel they are guilty or innocent in the Watergate affair? [Response of those who knew of indictments.] Guilty 52% 67% 53% 52% 49% Innocent 5% 2% 1% 2% 3% Not Guilty Until Proven 24% 16% 21% 23% 19% No Opinion/Don't Know 19% 14% 25% 23% 29% Of those who knew about the indictment and indicated that they had an opinion, those opinions were as follows: Guilty 75% 84% 78% 79% 75% Innocent 7% 2% 1% 3% 4% Not Guilty Until Proven 15% 13% 20% 16% 18% No Opinion/Don't Know 2% 1% 1% 2% 4% In thinking of your own opinions with regard to the guilt or innocence of the defendants in the cases we have been talking about—what do you think has most influenced you—what you have read in the newspapers or what you have read in magazines, or your own political position? 3 Newspapers 37% 58% 39% 28% 25% Television 58% 46% 62% 51% 65% Magazines 7% 16% 17% 9% 11% Radio 5% 11% 9% 4% 3% Political Position 6% 11% 3% 4% 4% Personal Decision 13% 14% 15% 15% 8% Don't Know 6% 4% 4% 6% 8%3 Multiple answers were recorded in more than one category. As a consequence, the totals of all answers to these questions will exceed 100%.
8. It is my opinion that the above indicated percentages for the nation are representative of the opinions of all registered voters in the nation within an overall maximum variation of ± 2.5% and that the above indicated percentages for the specific areas surveyed are representative of the opinions of all registered voters within an overall maximum variation of ± 5%.
Sworn to before me this 30th day of April, 1974.
My Commission Expires November 30, 1977
APPENDIX B
HOFFAR voir dire
[928] (John A. Hoffar entered the courtroom.)
THE COURT: Good morning, Mr. Hoffar.
Mr. Hoffar, I want you to know at the beginning that these questions are being propounded to you in private in the presence of the Defendants and their lawyers and the Government counsel not for the purpose of embarrassing you or prying into your personal affairs. This is the last part of our routine to determine whether or not you have the qualifications to be [929] selected to be on this jury if the lawyers
Mr. Hoffar, are you employed now or retired?
JUROR HOFFAR: I am a retired U.S. Park policeman.
THE COURT: How long were you connected with the U.S. Park Police?
JUROR HOFFAR: Twenty-one years.
THE COURT: What generally were your duties at that time?
JUROR HOFFAR: Mostly supervisory and in a patrol car.
THE COURT: Are you married?
JUROR HOFFAR: Yes sir.
THE COURT: Does your wife work?
JUROR HOFFAR: No, sir.
THE COURT: Has she ever been employed?
JUROR HOFFAR: Only part time.
THE COURT: Where was that?
JUROR HOFFAR: She just assisted where she went to school or college—Trinity College.
THE COURT: Here out near Catholic University?
JUROR HOFFAR: Yes, sir.
THE COURT: Do you have any children?
JUROR HOFFAR: No, sir.
THE COURT: Now, I don't want to know how you voted in any election or what your political affiliations or anything [930] like that are, but this is a question I would like you to think about:
Are you or any relative or close friend a member of a political party? By, political party, I might say, like the local Republican State Committee or Democratic Central Committee?
JUROR HOFFAR: No, sir.
THE COURT: Did you contribute or have you ever contributed to any political party by way of cash or a check?
JUROR HOFFAR: Yes, sir.
THE COURT: Now, you recall I propounded a series of questions to about 18 or 12 of you as a group, you remember that? Were you in the group of 12 or 18?
JUROR HOFFAR: Eighteen.
THE COURT: Do you believe at this very moment, and without having heard any of the evidence that will be offered in this case, that any Defendant in this case is guilty of violation of any one or all of the charges set out in the various counts of the indictment?
JUROR HOFFAR: No, sir.
THE COURT: Your answer is, no.
JUROR HOFFAR: No.
THE COURT: As you probably know, this case has been the subject of many stories in newspapers, magazines, articles, and so forth, and you may have read or heard about this case or about the indictment.
[931] Now, I am not going to question you about what, if anything, you have heard or read about the case, but I am going to question you as to what you heard or read about the case to decide if you can be qualified to serve on this jury if you are selected by the attorneys at the proper time. But first I will make some comments so you can understand that simply because you may have heard or read or discussed this case does not mean that you will not be permitted to serve on this jury.
Neither I nor the Government, nor counsel for the Defendants, or the Defendants expect or are entitled to impanel a jury that has never heard anything about this case, read about it or discussed it or anything like that. We don't expect to get that kind of a jury, because I think, frankly, it would be impossible.
Instead, we would like to get a jury where each juror is able to put aside anything he or she may have read or heard and any opinion he or she may have formed based thereon and decide these Defendants' guilt or innocence based solely on the evidence you hear in open Court and in accordance with the instructions that I shall give you at the end of the trial, or the law of the case.
Had you heard about this case before coming into the courtroom, say, was it last Tuesday?
JUROR HOFFAR: Yes, sir, last Tuesday.
THE COURT: Had you heard about this case or read about it before that time?
JUROR HOFFAR: Yes, sir.
THE COURT: Does anything you may have heard or discussed about this matter particularly stand out in your mind? Any one thing or several things?
JUROR HOFFAR: No, sir.
THE COURT: Have you seen any of the Defendants or their lawyers on television or their pictures in the newspapers?
JUROR HOFFAR: Yes, sir.
THE COURT: Which ones? Can you indicate, if you remember?
JUROR HOFFAR: All of them.
THE COURT: You have seen all of them on television? Let's take television first.
JUROR HOFFAR: Television and the newspapers. I haven't paid particular attention.
THE COURT: You mean combined, that is, either on television or the newspapers, you have seen all their pictures from time to time, is that correct?
JUROR HOFFAR: Yes, sir.
[933] THE COURT: What, if anything, do you remember about these Defendants? Does anything stand out in your mind after seeing them or hearing them talking, anything like that?
JUROR HOFFAR: I really haven't paid that much attention to the whole thing to have anything stand out in my mind.
THE COURT: Do you read one or more of the daily newspapers here; and if so, which one?
JUROR HOFFAR: The Post mostly. Sometimes I see the Star.
THE COURT: You watch the news programs on television or listen to them on radio?
JUROR HOFFAR: Most days I do.
THE COURT: Have you followed the Watergate matters closely or casually?
JUROR HOFFAR: Casually.
THE COURT: Do you subscribe regularly to any magazines, we'll say?
JUROR HOFFAR: Just Reader's Digest.
THE COURT: How about Time Magazine or Newsweek, or Harper's, or any of those kind of magazines?
JUROR HOFFAR: I just haven't found time to subscribe to more than that. When I go to the library sometimes I read Newsweek or Business Week and that is about it.
THE COURT: Thank you.
Have you ever heard discussed or seen anything about [934] the so-called break-in of the Democratic National Committee in June of 1972?
JUROR HOFFAR: Yes, sir.
THE COURT: Read about it or discussed it or anything like that?
JUROR HOFFAR: Yes, sir.
THE COURT: What did you read about it if you remember?
JUROR HOFFAR: Just what is in the newspaper, just what everybody was talking about at the time.
THE COURT: Did you read about the results of the trial of the seven men who were indicted?
JUROR HOFFAR: Yes, I read the whole thing but I can't remember exactly.
THE COURT: Thank you.
Now, recently a man by the name of Jeb Stuart Magruder and two reporters from the Washington Post by the name of Carl Bernstein and Robert Woodward wrote two books. Mr. Magruder wrote a book called, "An American Life—One Man's Road to Watergate," and the two reporters wrote a book called, "All The President's Men." Have you heard of either one or both books?
THE COURT: Have you read either of the books?
JUROR HOFFAR: No, sir.
THE COURT: Have you read any serialized account of those books that might have appeared in the newspapers or [935] magazines like that?
JUROR HOFFAR: Probably have, but I don't remember.
THE COURT: Do you recall them now?
JUROR HOFFAR: No, I just read them as I read the news.
THE COURT: Have you discussed this case or any of the Defendants with anyone or has anyone discussed the case or any of the Defendants in your presence?
JUROR HOFFAR: Yes, sir.
THE COURT: Can you remember who they might be that you have discussed the case with?
JUROR HOFFAR: It wasn't that important, it doesn't stand out in my mind. It was just idle conversation.
THE COURT: People that you might have worked with, friends of yours?
JUROR HOFFAR: Oh, yes.
THE COURT: Your wife, I suppose?
JUROR HOFFAR: Anybody that wanted to talk about it, I talked about it.
THE COURT: Do you recall when was the last time that you heard or read anything about this case? I am talking about the last time before last Tuesday when you came to Court, if you remember?
JUROR HOFFAR: I usually just read the headlines and if there is something outstanding, I read further.
[936] THE COURT: Have you ever read the so-called tape transcripts that were released by former President Nixon which were contained in what has familiarly become known as the Blue Book, about that thick (indicating), transcripts of the tapes released to the public?
JUROR HOFFAR: I read the first couple days and there was just too much. I have other things to read.
THE COURT: Was that in the library that you read those comments?
JUROR HOFFAR: The newspapers.
THE COURT: Do you have any personal knowledge of the facts of this case separate from any information you may have heard or read, television, radio, newspapers, books or magazines— personal knowledge?
JUROR HOFFAR: No, sir.
THE COURT: Are you aware of the fact that the Senate Select Committee on Presidential Campaign Activities also known as the Watergate Committee, or the Ervin Committee, held hearings on what is termed the Watergate matters last summer sometime?
JUROR HOFFAR: I really haven't kept track of it.
THE COURT: Are you aware that did happen?
JUROR HOFFAR: Oh, yes, sir.
THE COURT: Hearings were held and the hearings were televised nationally and locally, too, of course.
JUROR HOFFAR: Oh, yes.
[937] THE COURT: Are you aware of the fact that the Judiciary Committee of the House of Representatives, also known as the Impeachment Committee, conducted hearings on the impeachment of former President Nixon? Are you aware of that?
JUROR HOFFAR: You see all these hearings are sort of lumped together in my mind. I really haven't followed them closely to separate them.
THE COURT: Did you hear or see any part of the hearings on television or listen to any part on the radio?
JUROR HOFFAR: Yes, sir.
THE COURT: Often or infrequently?
JUROR HOFFAR: Infrequently.
THE COURT: They went on for some time as I remember.
JUROR HOFFAR: When I would listen to the news, if it was close to the news time, I would listen.
JUROR HOFFAR: Whatever anybody had on. I have no favorite news program.
THE COURT: Listen to this question carefully:
From what you have read or heard about this case from any source whatsoever, have you formed or expressed any opinion as to the guilt or innocence of any of these Defendants?
JUROR HOFFAR: Well, being a former policeman, I sort of tried to be neutral until a person has been convicted and I [938] really haven't said definitely one way or the other.
THE COURT: All right, sir, thank you.
Now the Government and the Defendants in this case are entitled to have this case decided on its merits, that is, on the evidence presented in open Court and pursuant to the law as the Court will try to explain it to the jury at the end of the case. You must not be influenced, of course, by any events that transpire outside of the courtroom. You may have read or heard that former President Richard M. Nixon has been pardoned for any offenses he may have committed against the laws of the United States while he was President. Are you aware of that?
JUROR HOFFAR: Yes, sir.
THE COURT: Is there anything about the pardon of Mr. Nixon that has caused you to form or express any opinion about the guilt or innocence of any of the Defendants in this case?
JUROR HOFFAR: No, sir.
THE COURT: Did you read, see, or hear about the Defendant, Mr. Ehrlichman's trial recently in the case of the United States v. Ehrlichman, commonly known as the Plumbers case? Do you recall that?
JUROR HOFFAR: Faintly, but I don't remember much about it.
THE COURT: Do you recall anything about that trial? Does anything stand out in your mind about the so-called Plumbers [939] case?
JUROR HOFFAR: I wasn't that interested to remember.
THE COURT: Did you happen to recall the result of that case, what the jury did, what the verdict was?
JUROR HOFFAR: Offhand, no.
THE COURT: Were you aware that former President Richard M. Nixon was named as an unindicted co-conspirator by the Grand Jury in this case?
JUROR HOFFAR: I think I remember that as a headline.
THE COURT: Did your knowledge that Mr. Nixon was named as an unindicted co-conspirator cause you to form any impression or opinion as to the guilt or innocence of any one of the Defendants in this case?
JUROR HOFFAR: No, sir.
THE COURT: Do you have any prejudice, bias, sympathy or fixed opinion which would prevent you from following the instructions which the Court will give to the jury at the end of the case?
JUROR HOFFAR: Not that I can think of.
THE COURT: Do you conscientiously believe you can render a fair and impartial verdict in this case if you are selected to serve on the case free from any prejudice, bias, if any you might have, for or against the Government or the Defendants?
JUROR HOFFAR: I think so.
[940] THE COURT: Did you make any effort to study the facts of this case to prepare for your jury duty?
JUROR HOFFAR: No, sir.
THE COURT: Does any reason whatsoever suggest itself to you at this time why if you are selected to serve on this jury you feel you could not listen to the evidence objectively and the testimony and at the proper time render or vote for a verdict or join in a verdict which will be based in your opinion solely upon the evidence that will be offered in open Court and the instructions on the legal principles involved of the law, in other words, applicable to the case?
THE COURT: No reason whatsoever?
JUROR HOFFAR: None that I can think of offhand.
THE COURT: All right, let the juror step out for a few minutes.
THE COURT: My Law Clerk reminds me there is one other question I forgot to ask him. Bring him back.
MR. NEAL: Your Honor, to save time, could we suggest—maybe we are talking about the same one—
THE COURT: —I have this question which my Law Clerk reminded me:
As you sit here today, without having heard any [941] of the evidence in this case, do you think it is unfair to prosecute certain of Mr. Nixon's associates, including some of the Defendants sitting in Court today simply because Mr. Nixon, himself, has been pardoned?
MR. NEAL: We are talking about the same one, Your Honor. But there is one other area I didn't understand, maybe I just missed it, does the juror have adult children?
COUNSEL: He has no children.
MR. NEAL: I missed that.
MR. BRESS: Your Honor, I don't think the juror was responsive to your first question as to whether he had any opinion on the guilt or innocence of the Defendants. I thought his attempted answer was not responsive. He said as a policeman he would try to be neutral. He said he would be neutral until convicted.
MR. HUNDLEY: Judge, could you also ask him—he says he is retired. Could you ask him what he does do? He obviously doesn't read or listen to anything about this case. Could you inquire a little bit about how he spends his time or at least how long he has been retired?
THE COURT: All right.
MR. WILSON: May it please the Court, with regard to Mr. Hundley's question, I think he may have asked most of which I want to ask, the man's personal situation, that is to say, when he retired, the reason for his retirement. After all, he [942] only had 21 years of service and he is 57, and why he does not find time to read much. What is he doing?
THE COURT: That is personal, I think. I don't want to get into that.
MR. WILSON: It helps us to form a judgment about the capacity of this man, Your Honor, which is one of the things we are entitled to do on a challenge.
THE COURT: You mean I should inquire as to how he spends his time?
MR. WILSON: Certainly. This is startling. A man who is only 57 and is retired and he is busy, busy what? Also, getting down to the question of opinion, you didn't ask him what opinions were expressed in his presence, if any. And on the question, have you expressed an opinion as to guilt or innocence, you didn't ask him whether he had an opinion.
THE COURT: I thought I did.
MR. WILSON: He could have an opinion but not having expressed it.
THE COURT: Didn't I ask him, isn't that contained or implied in the last question: Do you know any reason whatsoever and so forth and so forth? That is the cover-all question.
MR. WILSON: That question from a judicial point of view is absolution. I don't care what the answer to that question is, you do, but I don't.
THE COURT: I can't satisfy 15 lawyers, obviously.
[943] Everybody has a different idea about the questions.
MR. BRESS: Your Honor, that last question, we always ask it, but that leaves the judgment or decision to the juror where the decision on this question really resides with us.
THE COURT: All right, bring the juror back.
(Juror Hoffar returned to the courtroom.)
JUROR HOFFAR: I have no opinion.
THE COURT: All right. Now, you said you were retired. You are 57 years old. You were a member of the Park Police, what was it, 21 years?
JUROR HOFFAR: Yes, sir.
THE COURT: Do you have any hobbies? Do you do a lot of reading? What do you do in your spare moments, some of the lawyers would like to know?
JUROR HOFFAR: It would be hard to believe, but I don't have any real hobbies that take up a lot of time. I have had two houses to take care of, my wife to take care of, and more or less wherever she wants to go, I take her, and we are just trying to enjoy ourselves and that takes—I don't know where the time goes. I have no idle moments.
[944] THE COURT: Do you and your wife travel much?
JUROR HOFFAR: No, sir, just around town.
THE COURT: I am talking about out of the City?
JUROR HOFFAR: No, sir.
THE COURT: Do you read quite a bit? I'm talking about outside of newspapers and magazines.
JUROR HOFFAR: I love to read but I just can't read very long.
THE COURT: All right. Have you ever expressed any opinion that you might have had to any person that you can recall or anyone, as a matter of fact, about this case one way or the other?
JUROR HOFFAR: I probably have.
THE COURT: Do you recall what that opinion might have been?
JUROR HOFFAR: Well, it really isn't that important to me to get into an argument with somebody. If somebody discusses with me their points of view, I just agree with them, it doesn't make any difference to me to try to change their mind.
THE COURT: What I am trying to find out is have you ever taken a firm position on any part of this case, saying, well, I think so-and-so is guilty, I think so-and-so is innocent, or, I think this, or, I think that? That is what I am talking about, an opinion.
Have you ever done that with anybody?
[945] JUROR HOFFAR: No, sir.
THE COURT: You have a completely open mind on this matter as to the guilt or innocence of these Defendants?
JUROR HOFFAR: As far as forming a definite opinion, I have an open mind.
THE COURT: All right.
Listen to this question very carefully:
As you sit here today without having heard any of the evidence in this case,—is that clear?
JUROR HOFFAR: Yes.
THE COURT: —do you think it unfair to prosecute certain of Mr. Nixon's associates, some of whom are in the courtroom today, including some of the Defendants, as I said, sitting in the courtroom today, simply because Mr. Nixon, himself, has received a pardon?
Do you understand the question or do you want me to repeat it?
JUROR HOFFAR: Because Mr. Nixon received a pardon, no one else should be convicted, is that it?
THE COURT: That isn't precisely the way I put it. Let me read it again. Think about it:
As you sit here today without having heard a word of the evidence in this case, do you think it is unfair to prosecute, I mean for the Government to prosecute certain of Mr. Nixon's associates, including some of the Defendants sitting in Court [946] today, simply because Mr. Nixon, himself, has received a pardon from President Ford?
JUROR HOFFAR: No, sir.
THE COURT: You don't think so?
JUROR HOFFAR: No.
(Juror Hoffar left the courtroom.)
MR. WILSON: May it please the Court, it is very obvious to me this juror has not been forthright with you.
THE COURT: If it is obvious to you, it is not obvious to me, Mr. Wilson.
MR. WILSON: I am the one to be concerned about it.
THE COURT: I am just as concerned as you are that these men get a fair trial in my courtroom, I want you to understand that.
MR. WILSON: I understand that, but it helps us a lot if you will find out what he—he equivocated with you as to whether he heard it discussed and if it was discussed, he at one time said, sure, they are guilty and some other time somebody advocated to the contrary and said they weren't guilty. This man stopped short of the crucial answers. If he has not an opinion, he has got a view. It is just as clear to me as it is possible to be.
THE COURT: Obviously, he is not one of these so-called intellectuals but I think he is a man that has good common sense [947] and that to me is important.
Let's proceed.
MR. WILSON: I think he is equivocating with you.
THE COURT: If you think that, it is on the record.
MR. HUNDLEY: I challenge for cause.
MR. FRATES: I don't state it as strongly as Mr. Wilson, but I would request Your Honor to ask him what is his opinion, because I think it occurs to me he does have an opinion and in his answers to Your Honor he seems to have qualified them.
I don't think all of us are over-reacting and I request Your Honor to ask him what his opinion is.
THE COURT: I think I have covered that. I will deny your request.
MR. GREEN: Your Honor, following up something Mr. Frates said, my notes show in answer to one question he stated as far as forming a definite opinion, I have an open mind. That leads inescapably to the conclusion he has some opinion and has not been testified to hear.
THE COURT: I don't intend to conduct a cross-examination of these people. I will interrogate them fairly in my opinion. Obviously, again, I can't satisfy every one of you.
Let's proceed.
MR. BRESS: Are we entitled to know whether or not he is retired because of some disability?
[948] THE COURT: Bring him back.
MR. HUNDLEY: I thought you indicated to me that you would remind these people as they came in that they are still under oath.
THE COURT: I am going to tell them it has been suggested that I remind them.
MR. HUNDLEY: Yes, sir.
(Juror Hoffar returned to the courtroom.)
THE COURT: Mr. Hoffar, it has been suggested that I remind you that you are still under oath, you understand that?
JUROR HOFFAR: Yes, sir.
THE COURT: Now, were you retired for disability or what was the reason for your retirement, if any?
JUROR HOFFAR: Well, I was a year over the 20 years necessary for retirement and I figured I used up all my luck.
THE COURT: All right, sir, thank you.
Now, I want to explain to you something, sometime I forget to remind the jurors: When you go back upstairs—the young lady will escort you up—please do not discuss with any prospective juror—you are a prospective juror now—you will be called back to the jury box at the proper time when we actually start impaneling the jury. Please do not talk about what we discussed here, the questions I asked you or anything like that when you go home this evening, please don't talk to your wife about what transpired in Court and above all, don't [949] talk to any person about what took place in the confidence of the lawyers, and so forth. All right.
(Juror Hoffar was excused.)
FootNotes
By July 5 Gray had grown increasingly uneasy. He told Walters that the interviews would proceed unless the CIA directed otherwise, in writing. Walters delivered instead a memorandum stating that the CIA had no interest in the matter. The intermediaries were then finally interviewed. Tr. 6142-6144, 6207-6210.
This delay was made possible because some of the conspirators were carefully monitoring the FBI investigation. Beginning on June 21, at Ehrlichman's direction, Dean established a liaison with the FBI. Tr. 2690-2697. He sat in on several FBI interviews, received copies of reports and "lead sheets," and finally obtained a memorandum summarizing the investigation and future FBI plans. This memorandum he showed to Mitchell, Haldeman, and Ehrlichman. Tr. 2690-2697, 2711-2712, 2727-2728, 2830-2837, 6168-6176, 6217-6221, 6661.
Throughout this opinion "Govt.Ex." refers to a Government exhibit at trial. Most of the exhibits referred to here were tape recordings of the conversations of co-conspirators. "Tape Tr." refers to the transcript of tapes included as an appendix on appeal. These transcripts were carefully checked by the trial judge and, once he ruled they were "substantially accurate," they were then given to the jury to serve as listening aids while the jury heard the tapes through headphones. The transcripts themselves were not admitted into evidence, and the jury was repeatedly told that their own interpretation of what they heard on the tapes was to control. Tr. 2850-2855, 6152-6153.
Govt. Ex. 12, Tape Tr. 156.
Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), was a pretrial publicity case. There, however, the Court did not simply review the pretrial publicity and conclude that prejudice resulted, as appellants would have us do. Rather, the Court "independently evaluate[d] the voir dire testimony of the impaneled jurors," id. at 723, 81 S.Ct. at 1643, and determined that the "`pattern of deep and bitter prejudice' shown to be present throughout the community" had invaded the jury box. Id. at 727, 81 S.Ct. at 1645. See also United States ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir.) (en banc), cert. denied, 372 U.S. 978, 83 S.Ct. 1112, 10 L.Ed.2d 143 (1963).
The inaptness of this comparison is palpable. Unlike the television broadcasts in Rideau, the broadcasts in question here did not involve confessions by any of the appellants to any of the crimes charged. Furthermore, and notwithstanding the language of the dissent, neither authority nor common sense provides any reason to think that witnessing a statement that is subsequently alleged to constitute perjury is comparable to witnessing a confession of guilt to crimes of violence. Also, the defendant in Rideau was apparently without the benefit of counsel when he made his confession and, according to the Supreme Court, "no one has suggested * * * even that he was aware of what was going on when the sound film was being made." 373 U.S. at 725, 83 S.Ct. at 1419. By contrast, appellants here had the benefit of counsel in their appearances before the Senate committee, and no one has suggested that they did not know what was going on at the time.
Haldeman reply br. at 12. After the voir dire a judge can determine which description of the publicity's impact is accurate; before the voir dire a judge could only gave guessed.
Our own reading of the 2,000-page voir dire demonstrates that the Government's assessment of the public's interest in Watergate matters is correct. Most of the venire simply did not pay an inordinate amount of attention to Watergate. This may come as a surprise to lawyers and judges, but it is simply a fact of life that matters which interest them may be less fascinating to the public generally.
The supervisory power has also been used as a judicial response to improper actions by another branch of government. See Note, The Supervisory Power of Federal Courts, 76 Harv. L.Rev. 1656, 1660-1664. Delaney v. United States, 199 F.2d 107 (1st Cir. 1952), appears to be such a case. See id. at 115 (different result possible when legislative action has greater utility); Silverthorne v. United States, 400 F.2d 627, 633 (9th Cir. 1968). The utility of the legislative activities complained of by appellants is unquestionable. The hearings of the Senate Select Committee on Presidential Campaign Activities (Ervin Committee) took place before appellants were indicted, see United States v. Ehrlichman, supra note 17, 178 U.S.App.D.C. at 150 n.8, 546 F.2d at 916 n.8, and well over a year before they were tried, at a time when it was far from clear that the Executive Branch would adequately deal with the burgeoning scandal. Contrast Delaney v. United States, supra, 199 F.2d at 114. The impeachment hearings of the House Committee on the Judiciary did take place after the indictments in this case and within a few months of the beginning of the trial. However, those hearings, which were conducted pursuant to a power conferred by the Constitution only on the House of Representatives, did not involve public taking of evidence. Moreover, although appellants' actions were prominently considered by the Committee, the focus of the public debates, and of public attention, was on the role of the President. In view of these factors and of decisions by the Supreme Court subsequent to Delaney, see, e. g., Beck v. Washington, supra note 33, we do not believe the same result as in Delaney is called for here.
In reaching the conclusion that a change of venue was required, the dissent relies heavily on two disparate, though equally suspect, indicia. The first is a poll commissioned by the appellants and conducted by a public opinion research company. This court has previously held, however, that a trial judge, sitting in lieu of a jury, is not required to accept expert testimony. Hightower v. United States, 117 U.S.App.D.C. 43, 325 F.2d 616 (1963), cert. denied, 384 U.S. 994, 86 S.Ct. 1903, 16 L.Ed.2d 1009 (1966). Similarly, the trial court must also be accorded discretion in assessing the weight to be given expert evidence that is submitted — as was this evidence — in support of a pretrial motion. Indeed, such discretion is peculiarly necessary where the expert evidence consists of the results of a public opinion poll — data that is open to a variety of errors. Cf. Zeisel, The Uniqueness of Survey Evidence, 45 Cornell L.Q. 322, 339-344 (1960). It is our judgment that in determining whether a fair and impartial jury could be empanelled the trial court did not err in relying less heavily on a poll taken in private by private pollsters and paid for by one side than on a recorded, comprehensive voir dire examination conducted by the judge in the presence of all parties and their counsel pursuant to procedures, practices and principles developed by the common law since the reign of Henry II.
The second major prop for the dissent's argument that a change of venue should have been granted is, oddly, the District of Columbia's voting record in the past two presidential elections. Not without reason, the relevance of this information seems to have escaped the prosecution, the defendants, their counsel, and the trial court. Nevertheless, undeterred by the absence of any reference to voting results anywhere in the record or the appellate briefs, the dissent introduces the subject with a quotation from United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff'd, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137 (1951). It need only be said that the reader will search Dennis in vain for any intimation that a community's voting patterns are at all pertinent to venue.
One of the first two veniremen questioned was excused because of inability to be sequestered for the necessary time. Tr. 471-472. The other (Barksdale) was excused because of a challenge for cause by the defense. Tr. 518-519. That challenge was based on the juror's negative response to the following question:
Tr. 480; see Tr. 507-508, 518-519. Defense counsel admitted when making the challenge that the venireman had probably not understood the question, Tr. 508, and the court concluded that the question was confusing and should not be asked again. Tr. 519. Barksdale said she had paid little attention to the Watergate news and had no opinion as to the guilt of any defendant. Tr. 490-499. It is therefore improper to count her as biased against the defendants because of the pretrial publicity. But see Mitchell reply br. at 18 n. 12.
The dissent, which largely echoes appellants' assorted complaints about the voir dire, also fails to point to a single instance in which the trial court abused its discretion. In its attempt to show that the voir dire was in some way inadequate or improper, however, the dissent carefully selects, from the more than 2,000 pages of the voir dire transcript, the isolated passages that are most susceptible to the interpretation that the trial judge and the jurors were predisposed to find the defendants guilty. Consistently ignored, it should be pointed out, are the numerous passages that suggest a predisposition to find the defendants innocent — passages which often appear immediately before or after those quoted by the dissent.
For instance, the dissent specifically refers to the voir dire of jurors Ruth Gould, Marjorie Milbourn, and Jane Ryon as demonstrating that the trial judge erred in not eliciting more fully the jurors' general opinions on the subject matter of the case. Omitted from the dissent, however, is any reference to the opinions these jurors did express. In truth, each of these three jurors, in response to a question from the trial court, said she felt that, in view of the pardon granted to former President Nixon, it would be unfair to prosecute any of the defendants. Tr. 843 (Gould voir dire); Tr. 1187 (Milbourn voir dire); Tr. 1429-1430 (Ryon voir dire). See also Tr. 631 (voir dire of Roy G. Carter, a juror who also responded that, in view of the pardon, it would be unfair to prosecute any of these defendants).
Though not without ambiguity, this portion of the dissent appears to be little more than a variation on appellants' complaint that the trial court erred in refusing to ask "content" questions. For the reasons given infra, we find this refusal entirely justified.
Further, we specifically note that the questions that were propounded during the voir dire refute any suggestion that the trial court failed to address the fundamental issue of whether the veniremen were predisposed to find the defendants guilty. The dissent, of course, concedes that the trial court did inquire as to this issue, but contends that the court's questions should have been worded differently. The judge asked a "loaded question," according to the dissent, when he said, "Do you believe at this very moment, and without having heard any of the evidence that will be offered in this case, that any Defendant in this case is guilty of violation of any or all of the charges set out in the various counts of the indictment?" But in a voir dire involving as many prospective jurors and as many questions as did the voir dire in this case, the fact that certain questions could have been formulated more adroitly is not surprising — much less is it reversible error. Also, it is instructive to note, as regards the "loaded question" referred to, that one of the jurors responded to the question with the statement that in her opinion the defendants were "not guilty." Tr. 1675-1676 (voir dire of Thelma L. Wells).
Mitchell's proposed voir dire did not include any "content" questions. See Record Vol. 9, Doc. 308.
In Irvin 62% of the 430-member venire admitted possessing a fixed opinion of the defendant's guilt which could not be set aside. See 366 U.S. at 724 & n.4, 727, 81 S.Ct. 1639. Almost 90% of the members of the venire who were asked about their opinion "entertained some opinion as to guilt — ranging in intensity from mere suspicion to absolute certainty." Id. at 727, 81 S.Ct. at 1645. Two thirds of the jurors who found Irvin guilty believed him guilty before the trial began. The Court held that the evidence of "`deep and bitter prejudice' shown to be present throughout the community" and in the jury box warranted rejection of the jurors' assurances that they could be impartial. Id.
Appellants claim that 52% of the veniremen questioned individually had an inclination, "ranging in intensity from mere suspicion to absolute certainty," toward a belief in guilt. Mitchell br. at 96. The Government maintains that only 8% of those questioned indicated an opinion of guilt that could not be set aside. In all, the Government identifies 29% of the venire as having had an opinion of appellants' guilt and another 7% as possessing an "arguable predisposition against defendants." Govt. br. at 243. Compare Murphy v. Florida, supra note 32, 421 U.S. at 803, 95 S.Ct. 2031 (20 of 78, 26%, excused because of opinion of guilt). Our review of the voir dire suggests that appellants have included in their totals not only potential jurors who may have believed them guilty but also potential jurors about whom appellants had a "mere suspicion." The Government's estimate that approximately a third of the members of the venire were predisposed against appellants is much more consistent with the voir dire transcript.
Murphy v. Florida, supra note 32, 421 U.S. at 803, 95 S.Ct. at 2037.
Jury Chairman Hoffar is considered by appellants to have inclined toward a belief of guilt because he expressed his agreement with others' viewpoints about the case in order to avoid arguments. Tr. 994; Mitchell br. at 76. The only challenge to Hoffar was based on his asserted equivocation. Tr. 946-947. Nothing in the transcript indicates he had formed any disqualifying opinion of his own.
Finally, appellants list Juror Milbourn as prejudiced against them because of her belief that Watergate did not represent morally desirable activities. See note 53 supra; Mitchell br. at 79; Tr. 1182-1183. Milbourn very clearly expressed her understanding of the distinction between her moral sentiments and the question of appellants' legal guilt; as to the latter she had no opinion. See Tr. 1182-1183. Moreover, she was not challenged for cause, and the dialogue following her questioning suggests the defense was eager to have her on the jury because of her belief that appellants should receive the same treatment as former President Nixon. See Tr. 1196-1202.
Ehrlichman's brief does not cite these cases, but we give him the benefit of considering their doctrine.
Id. at 183 (footnote omitted).
Rule 16 was revised and considerably broadened in 1975. Pub.L. No. 94-64, 89 Stat. 370 (1975). Since, however, the changes did not become effective until December 1, 1975, id. § 2, they have no effect on the cases at bar. Throughout this opinion we refer to Rule 16 as it was before the 1975 revisions.
Portions of Rule 17 were likewise amended in 1975, see note 79 supra, but subsec. (c) was left as it was at the time the instant cases were before the District Court.
on a date prior to actual beginning of the trial. R. 338. An earlier subpoena, dated Aug. 29, 1974, is not included in the record on appeal, and our only information as to it is the statement in the Special Prosecutor's brief that it "sought production of [Ehrlichman's] notes of conversations with then President Nixon, correspondence and memoranda, and his `personal' papers relating to Watergate for the time period June 17, 1972 to May 1, 1973 * * *." Br. for United States at 211.
United States v. Ehrlichman, supra note 17, 178 U.S.App.D.C. at 165-166, 546 F.2d at 931-932. The conditions here were no different, and we reaffirm what we said there.
The question whether, by adopting the Act, Congress contemplated subjection of its own records to the Act's disclosure requirements is surging increasingly to the fore. See United States v. Liddy, supra note 17, 177 U.S.App.D.C. at 7-8, 542 F.2d at 82-83; Harney v. United States, 306 F.2d 523, 532-533 (1st Cir.), cert. denied, 371 U.S. 911, 83 S.Ct. 254, 9 L.Ed.2d 171 (1962); United States v. Lev, 258 F.2d 9, 12-13 (2d Cir. 1958), aff'd by equally divided court, 360 U.S. 470, 79 S.Ct. 1431, 3 L.Ed.2d 1531 (1959); Calley v. Callaway, 519 F.2d 184, 224-226 (5th Cir. en banc 1975); United States v. Ehrlichman, 389 F.Supp. 95 (D.D.C.1974), aff'd, No. 74-1882, 178 U.S.App.D.C. 144, 546 F.2d 910 (1976); United States v. Tane, 29 F.R.D. 131, 133 (E.D.N.Y.1962); United States v. Calley, 46 C.M.R. 1131, 1190-1194, aff'd, 48 C.M.R. 19 (1973). We are not summoned to address that question here.
Jencks Act requirements do not rise per se to constitutional stature, Scales v. United States, 367 U.S. 203, 258, 81 S.Ct. 1469, 6 L.Ed.2d 782 (1961); Palermo v. United States, 360 U.S. 343, 345, 79 S.Ct. 1217, 3 L.Ed.2d 1287 (1959); we deal rather with rules of evidence statutorily ordained for federal criminal trials. United States v. Augenblick, 393 U.S. 348, 356, 89 S.Ct. 528, 21 L.Ed.2d 537 (1969). The Act expressly provides that in such trials "no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) to an agent of the Government shall be the subject of subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case." 18 U.S.C. § 3500(a) (1970). The Act supplies the only avenue to the materials it encompasses, and "statements of a government witness made to an agent of the Government which cannot be produced under the terms of 18 U.S.C. § 3500, 18 U.S.C.A. § 3500, cannot be produced at all." Palermo v. United States, supra, 360 U.S. at 351, 79 S.Ct. at 1224.
It follows that neither Ehrlichman's discovery motion nor any other effort to gain pretrial access to such statements could prevail, and that any further inquiry — aside from the question we have pretermitted — would be limited to whether Ehrlichman was barred from the Subcommittee testimony of any prosecution trial witness or witnesses and whether any such deprivation was prejudicial. Because Ehrlichman has not fulfilled his responsibilities incidental to judicial resolution of these questions, we do not speculate on the answer to either.
We later observe that Ehrlichman was late in asserting in this court his congressional-materials claim, and that as a result the case lacks argumentative focus on that claim. See note 113 infra and accompanying text. Nowhere is that condition graver than here. In the face of record revelations that some if not all of the Subcommittee testimony was opened to the defendants, see text supra at notes 108-110, Ehrlichman insists that he never gained access to any of the testimony, see note 113 infra and accompanying text, and his tardiness in raising the point has foreclosed responsive briefing by the Special Prosecutor. See note 113 infra and accompanying text. Moreover, Ehrlichman does not furnish record references to in-trial requests for the testimony at statutorily-appointed times or to rulings on any such requests, see Fed.R.App.P. 28(a), (e); D.C.Cir.R. 8(e), and we think it unwise to attempt a search of a three-month-trial record generating more than 12,000 pages of transcript in a quest for unspecified error. Compare Minnesota Mining and Mfg. Co. v. Technical Tape Corp., 309 F.2d 55, 59 (7th Cir. 1962), cert. denied, 372 U.S. 942, 83 S.Ct. 936, 9 L.Ed.2d 968 (1963). See also Holt v. Sarver, 442 F.2d 304, 307 (8th Cir. 1971); Herrera v. United States, 280 F.2d 888, 889 (9th Cir. 1960). And even if it could be demonstrated that the Subcommittee's delay in producing the testimony had some consequence, any undertaking to assess possible prejudice to Ehrlichman would be perilous. There is positive indication in the record that all Subcommittee testimony became accessible while the trial was ongoing, see notes 109, 110 infra and accompanying text, and Ehrlichman does not point to the least bit of harm that could be attributed to the delay, and in the face of the overwhelming evidence against him it may well be doubted that in any event there was harm necessitating reversal. See note 112 infra. In this milieu, we leave the matter as it is.
Thus there is no occasion to consider whether the Special Prosecutor's Brady duty, see text supra at note 70, extended to congressional materials, see Calley v. Callaway, 519 F.2d 184, 220-224 (5th Cir. en banc 1975); United States v. Ehrlichman, 389 F.Supp. 95, 97 (D.D.C.1974); United States v. Ehrlichman, 376 F.Supp. 29, 36 (D.D.C.1974); or whether in any event the materials were legally amenable to a subpoena duces tecum. Compare United States v. Liddy, No. 74-1885 supra note 17, 177 U.S.App.D.C. at 7-8, 542 F.2d at 82-83; Nixon v. Sirica, supra note 101, 159 U.S.App.D.C. at 73 n.70, 487 F.2d at 715 n.70.
Points raised for the first time in a reply brief are not normally to be considered on appeal. Finsky v. Union Carbide & Carbon Corp., 249 F.2d 449, 459 (7th Cir. 1957), cert. denied, 356 U.S. 957, 78 S.Ct. 993, 2 L.Ed.2d 1065 (1958); Mississippi River Corp. v. FTC, 454 F.2d 1083, 1093 (8th Cir. 1972); Fredrick v. United States, 163 F.2d 536, 549 (9th Cir.), cert. denied, 332 U.S. 775, 68 S.Ct. 87, 92 L.Ed. 360 (1947). In this instance, Ehrlichman's handling of the point has deprived us of the benefit of a response by the Special Prosecutor. At most, we can accept Ehrlichman's presentation only as a thesis assuming complete nonaccess to the testimony, a premise directly refuted by the record. See notes 108-110 supra and accompanying text.
The Government goes too far in asserting that a movant must show by "affidavit" or "verifiable representation" what the proposed witness would testify to. Govt. br. at 211. When the witness is uncooperative or unavailable, a defendant can do no more than predict what the witness would say if he testified truthfully. Cf. United States v. White, 324 F.2d 814 (2d Cir. 1963) (continuance required for defendant to produce Government informer in hopes of substantiating entrapment defense). However, if the defendant is able to produce a "verifiable representation" of what the proposed witness would say, that fact may bear on the district judge's ruling. Cf. Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970) (severance required where co-defendant's prior statements indicate he would exonerate defendant if he testified); United States v. Echeles, 352 F.2d 892 (7th Cir. 1965) (same).
In Neufield v. United States, supra, we stated that these first three factors constituted the "showing" a party seeking a continuance "must make." 73 App.D.C. at 179, 118 F.2d at 380. We do not read Neufield as necessarily holding, however, that a party who makes the requisite minimum showing always will be entitled to a continuance regardless of the disruptions that a continuance would cause. And our subsequent decision in J. E. Hanger, Inc. v. United States, 81 U.S.App.D.C. 408, 160 F.2d 8 (1947), indicates that sometimes a continuance will be required even absent a specific proffer as to the nature of the missing evidence. See also note 125 supra, Thus we restate the requirements here as factors bearing on the ultimate question Neufield poses: is a continuance "reasonably necessary for a just determination of the cause." 73 App.D.C. at 179, 118 F.2d at 380; cf. Byrd v. Wainwright, 428 F.2d 1017, 1019-1020 (5th Cir. 1970) (adopting a similar approach to severances).
Ehrlichman did not deny that he approved the Ellsberg operation or that he was aware of it immediately after it occurred. Tr. 10059, 10070. He denied authorizing a "burglary" and introduced evidence that the participants believed it to be justified on national security grounds. Tr. 2455, 7598-7599, 7603, 7722, 7749-7753, 7758-7759, 7764-7765, 9949-9967.
When a character witness is offered by the accused, he becomes subject to cross-examination as to his testimonial qualifications.
United States v. Lewis, 157 U.S.App.D.C. 43, 49, 482 F.2d 632, 638 (1973) (footnote eliminated, emphasis added). See also Michelson v. United States, 335 U.S. 469, 483, 69 S.Ct. 213, 93 L.Ed. 168 (1948); Annots., 47 A.L.R.2d 1258 (1956), 71 A.L.R. 1504 (1931); 3A J. Wigmore, Evidence § 988, at 913-20 n.1 (Chadbourn rev. ed. 1970). Cf. Fed.R.Evid. 405(a). Here there can be no question that Ehrlichman's conviction on perjury charges has a direct bearing on "the reputation asserted," Michelson, supra at 484, Lewis, supra, 157 U.S.App.D.C. at 50, 482 F.2d at 639, which was Ehrlichman's reputation for truth and veracity. Tr. 9316. Also, the character witness' knowledge of this conviction would certainly be a valid test of his testimonial qualifications — i. e., his actual knowledge of Ehrlichman's reputation in the community. Lewis, supra, 157 U.S.App.D.C. at 49, 482 F.2d at 638; 3A J. Wigmore, supra § 988, at 912.
We are confirmed in our view that the trial judge acted properly here by the fact that his ruling shows a great concern for limiting any possible prejudice to Ehrlichman from the Government's attempt at impeachment of his character witnesses. Cf. Lewis, supra, 157 U.S.App.D.C. at 50, 482 F.2d at 639. In his ruling the judge required the character witness to be initially questioned on this point out of the jury's presence to insure that the jury would not learn of Ehrlichman's conviction on the perjury charge through an inadvertent or imprecise answer. Tr. 10298. Thus it appears that appellants were given every indulgence short of denying the prosecution an established procedure, and we find no cause for complaint.
The Government also introduced portions of Mitchell's congressional testimony as part of its direct case on Counts 4 and 5 (perjury to the grand jury) and Counts 1 and 2 (conspiracy and obstruction of justice) on the theory that they constituted admissions, see Tr. 7159-7165, 7166-7170B, 7192-7195. Mitchell makes no challenge to this use of his prior testimony, see Mitchell br. 54-55, and indeed relied, in his argument to the jury, on his testimony before the Senate Committee to show that he had not testified falsely before the grand jury, Tr. 11965.
Professors Dershowitz and Ely dispute Chief Justice Burger's finding in Harris that "[p]etitioner makes no claim that the statements made to the police were coerced or involuntary." See Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1201-1208 (1971).
As examples of such "official investigations," the Court cited two cases dealing with a congressional investigation and an administrative agency hearing. Id. n. 30, citing Quinn v. United States, 349 U.S. 155, 75 S.Ct. 668, 99 L.Ed. 964 (1955); Brown v. Walker, 161 U.S. 591, 16 S.Ct. 644, 40 L.Ed. 819 (1896).
We note that the Constitutional Rights Subcommittee of the Senate Judiciary Committee has scheduled hearings on grand jury reform. Before the Subcommittee is S. 3274, a bill introduced by Senators Abourezk, Gravel, and McGovern, which includes provisions requiring notice to grand jury witnesses when they are potential defendants, relief from compelled appearance absent a grant of immunity upon advance written notice that the Fifth Amendment privilege will be claimed, and the right to counsel in the grand jury room.
Indictment, Count 7, ¶ 4, J.A. 139.
Tape Tr. 245-246 (emphasis added). See also Tr. 6688-6689 (testimony of Fred LaRue).
J.A. 711.
July 31, 1973:
Indictment, Count 8, ¶ 4, J.A. 141-143 (emphasis in original).
409 U.S. at 354, 93 S.Ct. at 598. It was later determined that, while it was literally true that the company did have an account in Zurich, the petitioner also himself had a personal Swiss bank account into which he had deposited over $180,000. He did not have such an account at the time of questioning, nor had he then or ever had nominees with such accounts.
Tr. 12391. The court also followed Bronston in instructing on the false declaration counts. Tr. 12386.
Appellant made the following reply, the italicized sentence constituting the charge of perjury:
Indictment, Count 9, ¶ 4, J.A. 145.
Tape Tr. 348.
Although the only document in the Joint Appendix in which Mitchell objects to the admissibility of certain portions of the tapes does not mention this argument, J.A. 606-611, his counsel appears to have made this argument orally on at least one occasion, Tr. 3320. The District Judge, however, ruled the tapes admissible over this objection. We believe that there was no error in his finding sufficient evidence of a single and continuing conspiracy of which Mitchell was a member to permit the jury to listen to the excerpts in question. As the Government argues, the abortive plan to have Mitchell step forward to take the blame was compatible with the conspiracy's central objective—to cover up any information that might embarrass the Nixon White House. When some information began to become public, it was logical and foreseeable that the conspirators would next try to limit the number of people whom that information might implicate, and having Mitchell assume the blame was one way to limit the vulnerability of others. But even then Mitchell was to be given veiled assurances of clemency if he agreed to go along with the plan. Perhaps most important, when this plan was not executed Mitchell remained a loyal member of the conspiracy in his later appearances before the grand jury and the Senate committee. Finally, there was no evidence that Mitchell made any attempt whatsoever to withdraw from the conspiracy. Thus there was ample evidence—independent of the tape recordings themselves—to support the existence of a single conspiracy to which Mitchell belonged and which extended into the summer of 1973.
Some legal writers have contended that two intents are required for the crime of conspiracy: an intent to agree and an intent to achieve the object of the agreement (and thus of the conspiracy). Harno, Intent in a Criminal Conspiracy, 89 U.Pa.L.Rev. 624, 631 (1941). Accord, 1 Wharton's Criminal Law and Procedure § 85 (R. Anderson ed. 1957); Developments in the Law of Criminal Conspiracy, supra at 935. Haldeman contends that the trial judge here instructed the jury only on the necessity of finding the latter type of specific intent, and never charged the jury to determine whether each appellant had the specific intent to agree. Haldeman br. at 131. This argument derives some weight from the record, for although the judge did at one point instruct the jury that "if you are not satisfied beyond a reasonable doubt that a Defendant possessed the specific intent to join a conspiracy, you should find that Defendant not guilty on that charge," Tr. 12370, he omitted any reference to specific intent to agree when defining the intent required. Tr. 12367-12368. On the other hand, the judge did point out that each defendant must be found to have acted wilfully and knowingly, Tr. 12368-12369, and told the jury that "[y]ou may infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted." Tr. 12369 (emphasis added). This might be read as in essence requiring the jury to find a specific intent to agree, especially in conjunction with the above-quoted passage from Tr. 12370.
We need not decide this issue, however, since Haldeman did not raise it at trial. Compare J.A. 714-715 (Haldeman's requested instruction on specific intent) with J.A. 723 (Mardian's requested instruction on intent). See Fed.R.Crim.P. 30. Nor can we find plain error here as required by Fed.R.Crim.P. 52(b), since the substance of the instruction was given. Moreover, it is questionable whether the court need instruct the jury on the necessity of finding both intents. On the facts of this case, the formative agreements to join were so wrapped up in the stated attempts to achieve the unlawful objects that the specific intent required for both phases of the conspiracy were clearly deducible from the same evidence. See 1 Wharton's Criminal Law and Procedure § 85 (R. Anderson ed. 1957); cf. 1 E. Devitt & C. Blackmar, Federal Jury Practice and Instructions § 29.05 (1970); District of Columbia Bar Ass'n, Criminal Jury instructions for the District of Columbia 4.92 (2d ed. 1972) (hereinafter cited as D.C. Criminal Jury Instructions).
(Emphasis added.) This is not to say, however, that the accused must have known he was violating a specific statute, see United States v. Feola, 420 U.S. 671, 686-696, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975), but only that he knew he was acting wrongly or violating the law in general when he acted.
In the present case, the judge's numerous references to the type of intent required all observe this distinction. The judge repeatedly told the jury either that they must find "specific intent," Tr. 12367, 12370, 12372, 12378, or that they must find an "intent to commit the offense * * * which was the object of the conspiracy." Tr. 12364 (emphasis added). See also Tr. 12366, 12367, 12371, 12378. In one place the judge did depart from this form and said, "If you find that a Defendant's intent was innocent, you must find him not guilty. If you find that his intent was corrupt, you may find him guilty if you also find that the other elements of the offense have been proved beyond a reasonable doubt." Tr. 12382-12383. But the judge defined "corruptly" as "having an evil or improper purpose or intent," Tr. 12382—i. e., as having specific intent.
We also disagree with Haldeman that the example used by the trial judge in charging the jury on the meaning of the term "corruptly" in Count 2 ignores completely the element of specific intent. Haldeman br. at 125-126. The allegedly improper statement, reproduced in full, is as follows:
Tr. 12382 (emphasis added). Haldeman's argument apparently is that the italicized phrase might have given the jury the impression that they could convict without a finding of specific intent—that is, after finding only that a defendant had acted with the purpose of keeping one of the Watergate burglars "quiet," without finding the further evil purpose of impeding the Watergate investigation. See note 226 supra. Such an argument makes no sense in light of the second paragraph quoted above (immediately preceding the example to which objection is made) and in light of the definition of "corruptly." See note 226 supra.
Tr. 12369 (emphasis added).
Tr. 12407.
See also 1 E. Devitt & C. Blackmar, supra note 223, at § 29.05.
The Grand Jury further charges:
Tr. 12377. See also Tr. 12379-12383 on the obstruction charge.
(Emphasis added.)
[Citation omitted.]
On the sufficiency of indictments alleging obstruction of justice in the language of 18 U.S.C. § 1503, see Parsons v. United States, 189 F.2d 252, 253 (5th Cir. 1951); and United States v. Bell, 351 F.2d 868, 874 (5th Cir. 1965) (dicta), cert. denied, 383 U.S. 947, 86 S.Ct. 1200, 16 L.Ed.2d 210 (1966).
This argument only exposes the poverty of the dissent's position. It requires reasoning of the most sophistic sort to allow the validity of the convictions of three defendants to turn on conjecture as to the intent of the grand jury concerning evidence about a fourth defendant who was ultimately acquitted on each count with which he was charged.
Moreover, the dissent errs in assuming that each defendant named in a count must be linked to every means alleged therein. As long as a count properly charges each defendant with having committed the offense stated, it is not also necessary that each defendant, in the course of committing the offense, have employed all of the means named. Indeed, it is not required that all of the means alleged for committing the crime be proved. See United States v. Lennon, 246 F.2d 24, 27 (2d Cir. 1957), cert. denied, 355 U.S. 836, 78 S.Ct. 60, 2 L.Ed.2d 48. The dissent's apparent insistence on precise correlation between every defendant and every means is without foundation.
In Count 2 the defendants were charged with endeavoring to obstruct justice by making cash payments and offers of other benefits and by other means. The grand jury may have included Parkinson because of the evidence of his participation in cash payments and offers of other benefits. But whatever the reason, it does not lead to the conclusion, asserted by the dissent, that the grand jury did not intend to include misuse of the CIA among the means alleged in Count 2.
Jackson v. United States, 123 U.S.App.D.C. 276, 280, 359 F.2d 260, 264, cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966). Given the overwhelming proof of guilt in this case, the possibility of prejudice is nonexistent.
123 U.S.App.D.C. 276, 359 F.2d 260, 263, cert. denied, 385 U.S. 877, 87 S.Ct. 157, 17 L.Ed.2d 104 (1966).
See note 284 infra.
The second matter is the role projected by the complaining appellants, both in the District Court and here, for the Code of Judicial Conduct promulgated by the American Bar Association in 1972, which superseded the earlier Canons of Judicial Ethics. In April 1973 the Judicial Conference of the United States accepted the Code for federal judges with slight change, resolving that "[t]he adoption of the Code will not abrogate or modify any conflicting provisions of statutes or resolution of the Conference," and, with an exception not relevant here, that "[t]o the extent that any part of the * * * statutes [enumerated in the resolution] or Conference action is less restrictive than the Code, the latter will control." Report of Proceedings of the Judicial Conference of the United States 10 (Apr. 5-6, 1973). The resolution's enumeration of statutes so affected includes the pre-1974 version of 28 U.S.C. § 455 (1970), which undoubtedly was much less restrictive than the Code, id. at 11; indeed, amended § 455 substitutes the provisions of Canon 3C of the Code, with two modifications, for the older text. The enumeration does not include 28 U.S.C. § 144 (1970), however, seemingly because the call in Canon 3C(1)(a) of the Code for disqualification where the judge "has a personal bias or prejudice" concerning a party matches identically the language of § 144.
At several points the argument for disqualification of Judge Sirica seeks support in the Code, which the proponents equate with disqualification statutes and which the Government treats as precatory. Since we later conclude that no violation of the Code is indicated here, we do not enter the debate.
United States v. Mitchell, supra note 280, 377 F.Supp. at 1319-1320 (footnotes, controverting some of the allegations, omitted).
It is clear that new § 455(a) does not apply to the instant cases. See note 284 supra. The parties are in dispute, however, as to the involvement of the Code of Judicial Conduct. We need not undertake a resolution of that controversy since we conclude that even under the appearance-of-impartiality standard the events in question pass muster.
Most of the activities relied upon were exercises of judicial functions. Viewed in their individual contexts, we do not consider them improper when they occurred, nor is it argued that they were. Should the appearance-of-impropriety standard be woodenly applied to work a judge's disqualification because of earlier legal adjudications entirely proper when made, the result would be truly amazing. As one judge has stated,
Lazofsky v. Sommerset Bus Co., 389 F.Supp. 1041, 1044 (E.D.N.Y.1975).
For a long time before enactment of new § 455(a) in 1974, the judicial understanding of § 144 and old § 455 was that they were to be confined in operation to extrajudicial conduct or conditions. See note 296 supra and accompanying text. Nothing we have observed in the legislative history of new § 455(a) suggests that this construction was to be overturned. The Fifth Circuit has concluded that new § 455(a) is to be similarly interpreted, Davis v. Board of School Comm'rs, 517 F.2d 1044, 1052 (5th Cir. 1975). Absent clearer guidance as to the congressional intent, we agree, and by the same token, we might add, Canon 3(C)(1) is to be similarly read. The appearance-of-impropriety standard in terms summons a disqualification, not merely when the judge's impartiality might somehow be questioned, but only when it may reasonably be questioned. We think reasonableness of the challenge must take due account of the effect which its acceptance will have on the judicial process. So drastic would be the impact that we are unwilling to ascribe to ethical and legislative formulators of that standard a purpose to direct it toward judicial rulings on questions of law.
Some activities charged to Judge Sirica, of course, are not of that character. Those, we think, when separately examined in their individual contexts, do not reasonably generate a question as to impartiality.
United States v. Beneke, 449 F.2d 1259 (8th Cir. 1971), quoting Barry v. Sigler, 373 F.2d 835, 836 (8th Cir. 1967), in turn quoting Lyons v. United States, 325 F.2d 370, 376 (9th Cir. 1963), cert. denied, 377 U.S. 969, 84 S.Ct. 1650, 12 L.Ed.2d 738 (1964).
United States v. Mitchell, supra note 280, 377 F.Supp. at 1323. While we note that old § 455, unlike § 144, did not purport to require that factual allegations of an affidavit seeking disqualification be taken as true, we adjudicate this aspect of the § 455 claim without any dependence whatever upon Judge Sirica's refutation.
Id. (emphasis in original).
The rationale for this requirement is that, under the Sixth Amendment every accused person has a "right . . . to be informed of the nature and cause of the accusation" and under the Fifth Amendment and Fed.R.Crim.P. 7(a), offenses such as are here involved must be prosecuted by a grand jury indictment. After the grand jury has returned its indictment, the charges may not be broadened or amended by the court or the prosecutor—only the grand jury itself can do that. Stirone v. United States, 361 U.S. 212, 216, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). If the indictment is phrased in vague language, there is a danger that the defendant may be tried on charges never presented to the grand jury, in violation of the Constitution. See Norris v. United States, 281 U.S. 619, 622, 50 S.Ct. 424, 74 L.Ed. 1076 (1930). Thus, the Supreme Court has set out two tests of a valid indictment: (1) whether it contains the factual elements of the offense charged and fairly informs the defendant of the charges against which he must defend; and (2) whether it enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, supra at 117, 94 S.Ct. 2887; Russell v. United States, supra at 763-64, 82 S.Ct. 1038; United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932).
In the present case, the statute proscribing obstruction of justice is in generic terms: "Whoever corruptly . . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined . . .." 18 U.S.C. § 1503 (1970). Recognizing this, the Grand Jury descended to factual particulars and specified the general character of the acts by which a particular process of justice (a grand jury investigation) was allegedly obstructed. Such factual specificity was necessary to inform the defendants of the crime with which they were charged, to enable them to plead a conviction or acquittal thereon against a future prosecution for the same offense, and to permit the court to determine the facts necessary for conviction.
Count 2 of the indictment would not have been sufficient if it had only alleged that the defendants obstructed a grand jury investigation by various (unspecified) means. By the same logic, it would not be sufficient if we interpreted "other means" to mean "any other (unspecified) means." An indictment drawn in either of these terms would fail both of the above-mentioned tests. First, it would not fairly inform the defendants of the charges against them. In United States v. Nance, supra, we found an indictment for false representations to be fatally deficient because, although it alleged that representations were made, it did not specify what they were. This left it open for the United States Attorney to insert the vital part of the indictment without reference to the Grand Jury, op. at 474 of 174 U.S.App.D.C., at 701 of 533 F.2d, and thus to prosecute the defendants on the basis of evidence never presented to the Grand Jury and which the defendants never had any notice would be used to substantiate the particular charge. Similarly here, if we were to interpret "by other means" as a vague, general allegation as the majority contends may be done, the Government would have been allowed to introduce evidence—such as acts of the defendants which defrauded the government by misusing the CIA to interfere with the FBI investigation or even acts not mentioned in Count 1—that the Grand Jury never intended to include as part of the offense in Count 2. Such acts differed materially in character from the specific acts which were alleged, and they were not referred to in the indictment that the Grand Jury returned.
Second, the defendants would not legally be entitled to argue that a conviction or acquittal on Count 2 constituted a bar to a future prosecution on charges of obstructing justice by using the CIA to block the FBI's investigation, since the indictment makes no mention of that offense. Likewise, there would be no assurance that the evidence offered as factual basis in court in proof of the count was the same as that which the prosecutor presented to the Grand Jury. This error is fatal under Stirone, supra.
For these reasons, interpreting Count 2 here to allow a conviction on the charge of obstruction of justice to be based solely on the evidence that appellants defrauded the government by misusing the CIA to delay the investigations into the Watergate break-in violates appellants' constitutional rights under the Fifth and Sixth amendments. In order to avoid such constitutional error, the "other means" allegation of the indictment must be construed in accordance with the rule of ejusdem generis.
Tr. 11,580.
Tr. 11,581.
Tr. 11,582 (emphasis added).
(Tr. 12,382) (emphasis added). In United States v. Alston, supra, the court found that the jury had not "fully understood the interplay between the `identification' and `alibi' instructions"; i.e., that the Government had to prove the identity of the defendant beyond a reasonable doubt, but the defendant did not bear the same burden as to "alibi." The same difference exists here between proving guilt and innocence. If Alston were applied here the instruction on intent should have been:
The strictness of Alston should raise a similar doubt about the charge on intent and certainly would direct a reversal for the "misusing the CIA" instruction. Thus if Alston were good law, which I doubt, this case should be reversed too on the same ground. The failure of my colleagues to even consider the application of this recent decision to this case further puzzles me.
United States v. Glasser, 116 F.2d 690, 695-96 (7th Cir. 1941).
(2) There is no basis in fact or logic for the following statements in the majority opinion:
Majority opinion at ___ of 181 U.S.App.D.C., at 128 of 559 F.2d.
To assert that the "limitation of the FBI investigation . . . fits comfortably under `other means' of obstruction just as it does under the general language of Count 1" is a complete misapplication of the normal meaning of words. There is absolutely nothing about the words "other means" in an indictment, preceded by two specific factual allegations identifying an offense, that would give any indication that they included anything so specific as limiting an FBI investigation. Of course, if one were to construe them, as the majority apparently does, to include all other means in the world then everything would be included. But that cannot be done in an indictment. So the limitation alleged does not fit comfortably under "other means" of obstruction.
And to liken the generality of the "other means" allegation in Count 2 to the "general language of Count 1" misdescribes the allegations of defrauding the government which were contained in Count 1. A single quotation from the indictment will prove the point. Count 1 of the indictment charged that the defendants did
That is a specific allegation of conspiring to defraud the government. The rest of the alleged conspiracy sought to obstruct justice and to make false statements and declarations. These were specific allegations. It would not have been legally permissible to introduce evidence of a conspiracy to commit any other offense—as the majority argues.
(3) My views on the disqualification of the judge are set forth in my separate opinion in Mitchell v. Sirica, 163 U.S.App.D.C. 373, 502 F.2d 375 (1974).
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