Exhibit 46: United States v. Ehrlichman, 546 F. 2d 910 (D.C. Cir. 910 1976) 546 FEDERAL KEPORTER, 20 SERIES UNITED STATES of America V. John D. EHRLICHMAN, Appellant. United States Court of Appeals, Argued 18 June 1975. Decided 17 May 1976. Defendant, former assistant to the President of the United States for domestic affairs, was convicted in the United States District Court for the District of Columbia, Gerhard A. Gesell, J., on one count of conspiracy to violate the civil rights of a psychiatrist and on two counts of perjury, and he appealed. The Court of Appeals, Wilkey, Circuit Judge, held, inter alia, that conviction under the conspiracy count did not require recognition by defendant of the unlawfulness of his acts, but only an intent to commit actions which in fact deprived a citizen of constitutional rights which are firmly established and plainly applicable, and that defendant's claim of a national security exemption to the Fourth Amendment warrant requirement was negated by the lack of any assertion of actual authorization by either the President or the Attorney General. Affirmed. Leventhal, Circuit Judge, filed concurring opinion in which Merhige, District Judge, joined. 1. Jury 131(10) In prosecution of former presidential assistant for perjury and conspiracy to deprive citizen of his civil rights, record demonstrated that trial judge conducted voir dire of jury which was adequate to eliminate possibly prejudiced jurors. 18 U.S. C.A. §§ 241, 1623. 2. Criminal Law 591 Where, in prosecution of former presidential assistant for perjury and conspiracy Not every conspiracy affecting citizens' constitutional rights falls within prohibition of federal statute, but offender must act with specific intent to interfere with federal rights in question. 18 U.S.C.A. § 241. 5. Conspiracy →38 Even though criminal conspiracies are crimes of "specific intent" in that defendant must not only combine with others but must also intend to commit unlawful acts, there is generally no requirement that conspirator know those acts to be unlawful; mistake as to legality of prohibited activity, therefore, is no defense. 18 U.S.C.A. § 241. 6. Conspiracy 38 Doctrine that mistake of law will not excuse crime normally applies in conspiracy cases even when target offense itself has specific intent as element. 18 U.S.C.A. § 241. 270 514 F DERAL ROPONER, 2d SERIES warrant. If it be objected that the Supreme Court's decision in United States v. United States District Court,81 holding that a prior warrant was required for a domestic security surveillance, should have put the appellants on guard that a warrant might be legally required for the Watergate operation, it suffices to observe that that opinion was rendered two days after the break-in. Moreover, it represented a sharp reversal of almost three decades of Executive assumption of special authority in the field of domestic, as well as national, security.82 Clearly, a reasonable layman working for the government would have been justified in relying upon Executive pronouncements in this area. And it is as laymen, not as lawyers-as "foot sol-. diers," not as generals-that the appellants' knowledge and responsibility are to be judged. Thus, I conclude that the appellants have presented a valid defense to the charges against them. As the Government presented no compelling reason why the appellants' presentence withdrawal motion should be denied, I would find that the District Court abused its discretion under the "fair and just" standard. I would direct the District Court to grant the motion and proceed with trial on the merits. Even if it be accepted that the action of the majority here in affirming the District Court's decision is correct on the law, this does not mean that the appellants' motion to withdraw their guilty pleas should not be reconsidered by the District Court. Not only the appellants but also the Special Prosecutor's Office have acquired new and critical evidence about the Watergate operation since the appellants entered their guilty pleas in January 1973. Not all of that information was made available in the months between January and September 1973; much evidence came out thereafter. For the reasons of "fairness and justice" set forth in this dissent, I suggest that the Special Prosecutor ought to reconsider 81. 407 U.S. 297, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). his opposition to the appellants' efforts to obtain a trial in which they would have for the first time an opportunity to present their defenses. In the broad interest of fairness and justice I believe he should either act on his own or support a renewed motion by the appellants before the District Court for withdrawal of their pleas.... Exhibit 46: United States v. Ehrlichman, 546 F. 2d 910 (D.C. Cir. 910 1976) 546 FEDERAL REPORTER, 20 SERIES UNITED STATES of America V. John D. EHRLICHMAN, Appellant. United States Court of Appeals, Argued 18 June 1975. Decided 17 May 1976. Defendant, former assistant to the President of the United States for domestic affairs, was convicted in the United States District Court for the District of Columbia, Gerhard A. Gesell, J., on one count of conspiracy to violate the civil rights of a psychiatrist and on two counts of perjury, and he appealed. The Court of Appeals, Wilkey, Circuit Judge, held, inter alia, that conviction under the conspiracy count did not require recognition by defendant of the unlawfulness of his acts, but only an intent to commit actions which in fact deprived a citizen of constitutional rights which are firmly established and plainly applicable, and that defendant's claim of a national security exemption to the Fourth Amendment warrant requirement was negated by the lack of any assertion of actual authorization by either the President or the Attorney General. Affirmed. Leventhal, Circuit Judge, filed concurring opinion in which Merhige, District Judge, joined. 1. Jury 131(10) In prosecution of former presidential assistant for perjury and conspiracy to deprive citizen of his civil rights, record demonstrated that trial judge conducted voir dire of jury which was adequate to eliminate possibly prejudiced jurors. 18 U.S. C.A. §§ 241, 1623. 2. Criminal Law 591 Where, in prosecution of former presidential assistant for perjury and conspiracy Allegations of former presidential assistant, on appeal from his conviction of perjury and depriving citizen of his constitutional rights, to effect that trial judge indicated his disbelief of defendant and other defense witnesses by gestures and facial expressions, thus unduly prejudicing jury against him, were not supported in trial record. 18 U.S.C.A. §§ 241, 1623. 4. Conspiracy 29.6 Not every conspiracy affecting citizens' constitutional rights falls within prohibition of federal statute, but offender must act with specific intent to interfere with federal rights in question. 18 U.S.C.A. § 241. 5. Conspiracy →38 Even though criminal conspiracies are crimes of "specific intent" in that defendant must not only combine with others but must also intend to commit unlawful acts, there is generally no requirement that conspirator know those acts to be unlawful; mistake as to legality of prohibited activity, therefore, is no defense. 18 U.S.C.A. § 241. 6. Conspiracy 38 Where former presidential assistant did not contend that specific judicial or presidential approval was obtained for break-in of psychiatrist's office carried out under his supervision, it was no defense to prosecution for conspiracy to deprive psychiatrist of his constitutional rights that it was assistant's mistaken belief that break-in was lawful, notwithstanding absence of any such specific approval, under national security exemption to Fourth Amendment warrant requirement. 18 U.S.C.A. § 241; U.S. C.A.Const. Amend. 4. 10. Searches and Seizures →7(5) to re "National security" exemption Fourth Amendment search warrant quirement may only be invoked if there has been specific authorization by President, or by Attorney General as his chief advisor, for particular case. U.S.C.A.Const. Amend. 4. 11. United States 40 Fact that President asks subordinate official to investigate and report on problem involving national security does not give official plenary power to exercise all prerogatives which President might have in that area. 12. Searches and Seizures ✪7(10) Psychiatrist's Fourth Amendment rights were breached when members of "special investigations" unit of White House broke into and searched his office without judicial authorization and without specific approval by President or Attorney General. U.S.C.A.Const. Amend. 4. 13. Conspiracy 29.5 911 Specific intent under federal statute making it crime to conspire to deprive citizen of his constitutional rights does not require actual awareness on part of conspirators that they are violating constitutional rights; it is enough that they engage in activity which interferes with rights which, as matter of law, are clearly and specifically protected by Constitution. 18 U.S.C.A. § 241. 14. Conspiracy 29.5 Conviction of presidential assistant of conspiracy to deprive citizen of his civil rights was in full compliance with mens rea requirements of civil rights conspiracy statute where break-in of psychiatrist's office, the factual basis for such conviction, was accomplished for governmental rather than purely personal reasons. 18 U.S.C.A. § 241; U.S.C.A.Const. Amend. 4. Mere presence of hostility among defendants or desire of one to exculpate himself by inculpating another are insufficient grounds to require separate trials; to obtain severance on ground of conflicting defenses, it must be demonstrated that conflict is so prejudicial that defenses are irreconcilable, and that jury will unjustifiably infer that this conflict alone demonstrates that both are guilty. 16. Criminal Law 622(2) In prosecution of former presidential assistant and others for conspiracy to deprive psychiatrist of his constitutional rights by unlawfully breaking into and searching his office, defendants' defenses were not so irreconcilably inconsistent as to require separate trials. 18 U.S.C.A. § 241. 17. Criminal Law 622(2) Severance is not required simply because one defendant may wish to comment on another's refusal to testify. 18. Criminal Law 622(2) Where defenses of codefendants in prosecution for conspiracy to deprive citizen of his civil rights were not mutually exclu 912 546 FEDERAL REPORTER, 24 SERIES sive and irreconcilable, and only one of seven alleged coconspirators failed to take stand, trial court's refusal to sever prosecution, which precluded any comment by defendant on such codefendant's failure to testify, did not unduly prejudice defendant's defense. 19. Criminal Law 700 Former assistant to President, under prosecution for conspiracy to deprive citizen of his civil rights, was not improperly denied opportunity to take stand at pretrial hearing on satisfaction of Brady requirements for production of White House documents for use in his defense where, although repeatedly requested by trial judge to specify just what documents such defendant would discuss and why they might be relevant, counsel for defendant was unable to give single concrete example of how defendant's testimony would be helpful. Fed.Rules Crim. Proc. rules 16, 17, 18 U.S. C.A. 20. Criminal Law 1137(2) Where criminal defendant failed to obey trial court directions that he file written papers concerning his contention that he was improperly denied transcripts of testimony taken by congressional committee, he waived his right to press such point on appeal. 18 U.S.C.A. § 3500. 21. Criminal Law 1166(1) No reversible error occurred in prosecution of former presidential aide for conspiracy to deprive citizen of constitutional rights when trial court failed to procure transcripts of testimony taken in executive session by subcommittee on intelligence of house armed services committee. 18 U.S. C.A. § 3500. 22. Criminal Law 627.8(5) Trial court, in prosecution of former presidential assistant for conspiracy to deprive citizen of his constitutional rights, acted properly in concluding after in camera examination of assistant's notes taken from White House files that such notes did not bear on assistant's guilt or innocence or that of his codefendants. 18 U.S.C.A. § 241. Former presidential assistant failed to show sufficient actual prejudice to his defense to conspiracy prosecution to justify reversal of his conviction because of trial court's refusal to order production of papers denominated "Leaks" file from White House files. 18 U.S.C.A. § 241.. 25. Criminal Law 666(1) Where, in prosecution of former presidential assistant for conspiring to deprive psychiatrist of his constitutional rights by authorizing illegal break-in of psychiatrist's office, neither defendant nor any of his codefendants claimed that President specifically authorized break-in, special prosecutor disclaimed any evidence indicating presidential authorization, and President himself denied ever having had prior knowledge of operation in question, trial court properly declined to require President to appear as witness. 18 U.S.C.A. § 241. 26. Criminal Law 627.5(1) In prosecution of former presidential assistant for conspiracy to deprive citizen of constitutional rights, interrogatories to President, drafted by trial court after defendant's interrogatories were found to be repetitive or irrelevant to issues properly before court, were proper. 18 U.S.C.A. § 241. Appeal from the United States District Court for the District of Columbia (D.C. Criminal 74-116). William Snow Frates and Andrew C. Hall, Miami, Fla., for appellant John Ehrlichman. |