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UNITED STATES v. EHRLICHMAN Cite as 546 F.2d 910 (1976)

Philip B. Heyman, Sp. Asst. to the Special Prosecutor, with whom Henry S. Ruth, Jr., Special Prosecutor, Peter M. Kreindler, Counsel to the Special Prosecutor, Maureen E. Gevlin, Jay B. Stephens and Richard D. Weinberg, Asst. Sp. Prosecutors, Washington, D.C., were on the brief for appellee.

Leon Jaworski, Special Prosecutor, at the time the record was filed, Washington, D.C., entered an appearance as Special, Prosecutor.

Ivan Michael Schaeffer, Atty., Dept. of Justice, Washington, D.C., filed a memorandum on behalf of the U.S. as amicus curiae.

John D. Ehrlichman was convicted by a jury of the United States District Court for the District of Columbia on one count of conspiracy to violate the civil rights of Dr. Louis Fielding, 18 U.S.C. § 241, and on two counts of perjury. 18 U.S.C. § 1623. The indictment and conviction arose out of the burglary of Dr. Fielding's office by members of the "Special Investigations" unit within the White House, over which Ehrlichman exercised general supervision, and out of statements made by Ehrlichman to the grand jury and the FBI, in the aftermath of the break-in. The conviction was appealed to the United States Court of Appeals for the District of Columbia, where argument was heard by a panel of Judges Leventhal, Wilkey and Merhige, the latter sitting by designation from the Eastern District of Virginia. The opinion of the court by Judge Wilkey affirms the conviction on all counts.

With regard to the conviction under 18 U.S.C. § 241 of conspiracy to violate the civil rights of Dr. Fielding, Ehrlichman raises two substantive challenges. He argues: First, that the search was legal because undertaken pursuant to a delegable Presidential power to authorize such a search in the field of foreign affairs, and; Second, that even if the search was illegal under the Fourth Amendment, Ehrlichman acted with a good faith belief in its legality, and therefore lacked the specific intent to interfere with Dr. Fielding's constitutional rights which is required for a conviction under section 241.

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Dealing with the two arguments together, the court first concludes that the specific intent needed for a conviction under section 241 does not require recognition by the defendant of the unlawfulness of his acts, but only an intent to commit actions which in fact deprive a citizen of constitutional rights which are firmly established and plainly applicable. (Op. at

of

178 U.S.App.D.C., at 919-923 of 546 F.2d). The court upholds the trial judge's ruling that the intrusion infringed Dr. Fielding's firmly established Fourth Amendment right, because the legal theory advanced to justify the warrantless search is clearly inapplicable. Defendant's claim of a national security exemption to the Fourth Amendment warrant requirement is negated by the lack of any assertion of actual authorization by either the President or the Attorney General. (Op. at

of 178 U.S.App.D.C., at 923-927 of - F.2d). The court's opinion does not reach the alternative ground of the trial judge's ruling, that the national security exemption can never be used to justify a warrantless physical intrusion. The court finds proper the trial judge's instructions as to the other elements of the offense. (Op. of 178 U.S.App.D.C., at

at

927-928 of 546 F.2d).

Ehrlichman does not challenge his conviction on the two perjury counts on grounds of the facts and law pertaining to them, but does raise several objections applicable to all three counts, relating to the fairness of the trial and to certain procedural rulings by the trial judge. The court holds that the jury selection process was adequately safeguarded against the taint of pretrial publicity. (Op. at of 178 U.S.App.D.C., at 916-917 of 546 F.2d). It holds further that the denial of Ehrlichman's motion for severance of his trial from those of Barker, Martinez, and Liddy was not an abuse of discretion, because no irreconcilable inconsistency of defenses has been shown. (Op. at

of 178 U.S.App.D.C., at 928-930 of 546 F 2d). Finally, the court rules that Ehrlichman was not denied discovery rights under Rule 16 of the Federal Rules of Crim

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546 FEDERAL REPORTER, 2d SERIES

inal Procedure and the Sixth Amendment, but rather was given ample opportunity to examine and produce allegedly exculpatory White House documents, and to have the benefit of information available only from the President through interrogatories drafted by the trial court. (Op. at

of 178 U.S.App.D.C., 930-933 of 546 F.2d).

The conviction on all counts is accordingly AFFIRMED.

Judge Leventhal files a concurring statement, joined by Judge Merhige, taking issue with the claim, in the amicus memorandum of the Attorney General, that a warrantless physical intrusion may be justified by the authorization of the President or Attorney General even in the absence of exigent circumstances.

Before LEVENTHAL and WILKEY, Circuit Judges and MERHIGE,* United States District Judge for the Eastern District of Virginia.

Opinion for the Court filed by Circuit Judge WILKEY.

Concurring opinion filed by Circuit Judge LEVENTHAL, joined by Judge MERHIGE.

WILKEY, Circuit Judge:

On 7 March 1974 the appellant, John D. Ehrlichman, was indicted and charged with conspiracy in violation of the civil rights of Dr. Louis J. Fielding (Count I),' making a false statement to agents of the Federal Bureau of Investigation (Count II),2 and three counts of perjury (Counts III-V).3 Also indicted, on the conspiracy charge alone, were G. Gordon Liddy, Bernard Barker and Eugenio Martinez. The trial commenced on 26 June 1974; on 12 July the jury returned a verdict of guilty as to Counts I-IV and not guilty as to Count V. Subsequently, the trial court entered a

* Sitting by designation pursuant to 28 U.S.C. § 292(d).

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judgment of acquittal with respect to Count II. This appeal, therefore, is addressed to Ehrlichman's conviction on Counts I, III, and IV, conspiracy and perjury.

I. FACTUAL BACKGROUND AND ISSUES

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The publication of the "Pentagon Papers" in the summer of 1971 spurred the President to form a "Special Investigations" or "Room 16" unit within the White House, whose purpose was to investigate the theft of the Pentagon Papers and prevent other such security leaks. Defendant Ehrlichman, who was the Assistant to the President for Domestic Affairs, exercised general supervision over the unit; Egil Krogh and David Young were charged with its operation. At the time, Krogh was an assistant to Ehrlichman; Young worked with the National Security Council. They sought, and received, Ehrlichman's approval to add G. Gordon Liddy, a former F.B.I. agent, and E. Howard Hunt, a former C.I.A. agent, to the unit.

Appellant's brief describes the activity of the unit, insofar as pertinent, as follows (Br. 6-8): The unit's principal enterprise seemed to be the acquisition of all files and source material on Daniel Ellsberg. There was a generalized concern over his motives for releasing classified materials (the Pentagon Papers). Young and Krogh instructed the CIA to do a psychological profile on Ellsberg. Since Dr. Fielding had refused an interview by the FBI on the ground of doctor/patient confidentiality, Hunt suggested examining Dr. Fielding's file on Ellsberg, and further suggested a "black bag job" (surreptitious entry) while noting that the FBI no longer engaged in such activities. When Young reviewed the psychological assessment on Ellsberg prepared by the CIA, he determined that it was superficial,

4. The appeals of these co-defendants are treated in separate companion opinions, also handed down today.

5. See New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971).

3. 18 U.S.C. § 1623.

UNITED STATES v. EHRLICHMAN Cite as 546 F.2d 910 (1976)

and recommended that a "covert operation be undertaken to examine all the medical files held by Ellsberg's psychoanalyst." The exhibit reflects Ehrlichman's approval of the recommendation with his addition: "Provided that it is not traceable back to "16 the White House."

The members of the unit were clear that the "covert operation" in question would be a surreptitious entry into Dr. Fielding's of fice. Ehrlichman's primary defense at trial, however, was that he was not apprised of, and thus did not authorize, such an entry. He testified that he thought he had approved only a conventional private investigation, involving no surreptitious search of Dr. Fielding's office. Considerable evidence was introduced on both sides of the question. The jury's guilty verdict on the conspiracy Count I reflected a finding that Ehrlichman had in fact authorized the search.

Krogh and Young insisted that no one employed by the White House was to effect the actual entry into Fielding's office. Hunt traveled to Miami in mid-August 1971 to enlist the assistance of Bernard Barker, who had worked under Hunt during the Bay of Pigs operation. Hunt was widely known and respected in Miami's CubanAmerican community as a government agent who had been a leader in the fight to liberate Cuba. He did not identify the object of the search, but told Barker only that the operation involved a traitor who had 6. The Government brief notes that the reasons for interest in Ellsberg's psychiatric records "were, at best mixed" (p. 10). It refers (pp. 16-17) to Young's memorandum to Ehrlichman of 26 August (G.Ex. 17) as clearly indicating that the fruits of the entry were not to be used simply to determine Ellsberg's mental state. That memorandum proposes a meeting "to determine an overall game plan," which would address issues including "(9) How quickly do we want to try to bring about a change in Ellsberg's image?" A footnote adds: "In connection with issue (9), it is important to point out that with the recent article on Ellsberg's lawyer, Boudin, we have already started on a negative press image for Ellsberg. If the present Hunt/Liddy Project is successful, it will be absolutely essential to have an overall game plan developed for its use in conjunction with the Congressional investigation." On 27

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been passing information to the Soviet Embassy. On the basis of this information Barker recruited two men, Eugenio Martinez and Felipe de Diego, for the operation.

Hunt and Liddy met Barker, Martinez, and de Diego in Los Angeles on 2 September 1971. The Miamians were informed their mission was to enter Dr. Fielding's office, that Dr. Fielding was not himself the subject of the investigation, but that they were to photograph the file of one of his patients (they were not told Ellsberg's name until minutes before the break-in) and return the file to its place. On 3 September Barker and de Diego, dressed as deliverymen, delivered a valise containing photographic equipment to Dr. Fielding's office, enabling them at the same time to unlock the door to facilitate subsequent entry. Later that evening they and Martinez, contrary to expectations, found both the building and Dr. Fielding's office locked. The Miamians forced their way into the building, broke the lock on the office door, and used a crowbar on Dr. Fielding's file cabinets. As instructed if this became necessary, they spilled pills and materials about the office to make it appear that the breakin was the work of a drug addict. Throughout the operation surgical gloves were used to avoid fingerprint detection. In spite of all efforts, Ellsberg's records eluded them.

After relating the details of the entry and their lack of success to Hunt, Barker,

August Ehrlichman sent a memorandum to Charles Colson stating: "On the assumption that the proposed undertaking by Hunt and Liddy would be carried out, and would be successful, I would appreciate receiving from you by next Wednesday a game plan as to how and when you believe the material should be used." (G.Ex. 18.) At the trial Young testified that part of the purpose in examining Fielding's files was to obtain information that could be made public through Congressional investigations, hearings or by release to the newspapers (Tr. 1179). The "Boudin materials," item (4) on Young's list, was an article prepared by Hunt containing derogatory information Ellsberg's attorney, Leonard Boudin, which Ehrlichman forwarded on 24 August to Colson, who in turn leaked it to a reporter for the Detroit News. (Tr. 988, 1934; G.Ex. 15, 27.)

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546 FEDERAL REPORTER, 2d SERIES

Martinez, and de Diego returned to Miami. Hunt and Liddy returned to Washington, where they reported the failure of the operation to Krogh and Young. Krogh relayed that information to Ehrlichman.'

White House involvement in the break-in remained unknown for almost two years. When the facts about the operation began to surface, however, on 14 March 1973 Ehrlichman was called before the grand jury to testify about his knowledge of the affair. He stated that he had not been aware prior to the break-in that the Room 16 unit was looking for information with which to compose a psychological profile of Ellsberg, and had had no advance knowledge that an effort was to be made to get such information from Dr. Fielding. One year later he was indicted, subsequently tried and convicted, for his role in authorizing the breakin and for his efforts to conceal his involvement by lying to the grand jury.

Ehrlichman raises on appeal two substantive challenges to his conviction under 18 U.S.C. § 241 of conspiracy to violate the Fourth Amendment rights of Dr. Fielding. The first is that the break-in, although conducted without a judicial warrant, did not violate the Fourth Amendment, because it was undertaken pursuant to the President's delegable constitutional prerogative in the field of foreign affairs to authorize such a 7. When Krogh and Young received the full report on the break-in, including pictures that had been taken showing some damage to Dr. Fielding's office, they testified they were surprised and distressed. They had expected an⚫ operation which would leave no sign of the entry and search. When Krogh described what had happened to Ehrlichman, he also expressed surprise and stated that their actions had been excessive. He stated at trial, "It was just totally out in left field from anything I had contemplated." Tr. 2016. See note 62 infra.

8. As to change of venue, "[t]he ultimate question is whether it is possible to select

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a fair and impartial jury, and the proper occasion for such a determination is upon the voir dire examination.' It is then, and more usually only then, that a fully adequate appraisal of the claim can be made, and it is then that it may be found that, despite earlier prognostications, removal of the trial is unnecessary." Jones v. Gasch, 131 U.S.App.D.C. 254, 261, 404 F.2d

search. The second argument is that even if the search was unjustified in either law or fact and thus illegal, the Special Prosecutor failed to meet his burden under section 241 of proving Ehrlichman acted with a "specific intent" to interfere with Dr. Fielding's constitutional rights. As we interpret the case law surrounding section 241, the first issue that of the applicability under these circumstances of the "foreign affairs" exemption to the warrant requirement-is bound up in the second. They will be discussed together in Part II below.

[1,2] Ehrlichman does not challenge his conviction of two counts of perjury on substantive grounds relating particularly to those counts or to the law of perjury. He does, however, attack his conviction as a whole both for conspiracy and for perjury-on a number of grounds relating to the fairness of the trial and certain of the District Court's procedural rulings. His principal argument is that he was denied a fair trial, in the light of prejudicial pre-trial publicity, when the court failed to dismiss the indictment, continue or change the venue of the trial, or conduct a voir dire adequate to eliminate possibly prejudiced jurors. Our close examination of the procedures followed by the trial judge has satisfied us that he properly made the determinations required of him under the controlling decisions of this court."

1231, 1238-39 (1967) (footnotes and citations omitted), cert. denied, 390 U.S. 1029, 88 S.Ct. 1414, 20 L.Ed.2d 286 (1968).

A pattern of bitter prejudice throughout the community can render the voir dire an unsatisfactory device for selection of an impartial jury. See e. g., Irvin v. Dowd, 366 U.S. 717, 727, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961), discussed in United States v. Liddy, 166 U.S.App.D.C. 95, 101, 509 F.2d 428, 435-36 (1974), cert. denied 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975). Under our ruling in Jones v. Gasch, we look to the results of the voir dire for indication of any "pattern of deep and bitter prejudice" that would bring into question the veracity and reliability of the jurors' representations of impartiality. An examination of the voir dire process and its results in this case makes clear that the extreme circumstances condemned by the Supreme Court in Irvin and in Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), and Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417, 10 L.Ed.2d 663

UNITED STATES 、. THRLICHMAN
Cite as 546 F.2d 910
II.

[3] Subsidiary arguments advanced by Ehrlichman against the conduct of the trial are levelled at the District Court's decision not to sever Ehrlichman's prosecution from that of his co-defendants, the court's refusal to order certain discovery Ehrlichman claimed was important to his defense, and the court's failure to require then-President Nixon to testify or to respond to detailed interrogatories propounded by Ehrlichman." These issues we take up in Part III.

(1963), are not present here. After some general questions the trial judge eliminated some veniremen and examined the remaining prospective jurors individually to elicit any knowledge each might have about the case. Counsel were invited to propose additional questions, and all but Ehrlichman's counsel took advantage of that opportunity. The trial judge asked questions to determine whether the juror, as a result of news coverage, had any notion of who the parties were and what Watergate in general or the Fielding incident in particular was about. If the juror seemed to have any knowledge of the case, the trial judge then explored the type and source of information the juror had heard and remembered. The voir dire revealed that the array as a group neither was generally aware of the facts of the break-in nor had formed opinions about the defendants. A panel of approximately 120 veniremen was questioned about publicity; all thirteen who indicated they had an unfavorable opinion about the defendants were excused.

As to the jurors and alternates selected to serve none had expressed an opinion about the defendants' guilt, although one had heard that there had been a break-in by someone and another had heard that Ehrlichman was "involved" (Tr. 394-97). Few of the jurors selected had more than a faint awareness of the Fielding-Ellsberg matter, and none expressed any particular interest in Watergate. None were challenged for cause by the defendants. The law does not require that jurors be totally ignorant of the facts and issues involved in a See Irvin, 366 U.S. at 722-23, 81 S.Ct. 1639; Liddy, 509 F.2d at 437. The trial court's examination here adequately probed the question of prejudice and enabled the defendants to ascertain-within limits of reasonableness, and necessary adequacy-what the prospective jurors had heard about the case and the extent to which they might have made preliminary determinations about guilt or innocence. That examination did not reveal a deep seated prejudice against defendants that would make the voir dire procedure suspect.

case.

Similarly, a continuance in the circumstances at bar is not required by Delaney v. United States, 199 F.2d 107 (1st Cir.1952), where legis

(1976)

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GOOD FAITH AS A DEFENSE TO "SPECIFIC INTENT" UNDER 18 U.S.C. § 241

[4] The most substantial argument advanced by defendant Ehrlichman on appeal from his conviction under 18 U.S.C. § 241 10 is that the District Court's mistaken legal view of the statute's "specific intent" requirement led the court to commit reversible error, both in ruling on the admissibility of certain evidence sought to be introduced

lative hearings were held concerning the criminal activity to be tried. In this case, unlike Delaney, the Senate Watergate hearings occurred almost a year before the trial commenced and the defendants were not under indictment at the time of the hearings. It was therefore entirely proper to rely on the voir dire to determine whether there was any significant risk to a fair trial as a result of pre-trial publicity. The voir dire showed that no such risk existed and that an impartial jury could be empanelled.

9. Ehrlichman also raises the argument that the trial judge, by gestures and facial expressions, indicated his disbelief of the testimony of the defendant and other defense witnesses, so as to unduly prejudice the jury against the defendant. We find no support for this argument in the trial record. Defense counsel made no objection at trial to any allegedly prejudicial action of the trial judge, and he details no such conduct to this court. See Billeci v. United States, 87 U.S.App.D.C. 274, 282, 184 F.2d 394, 402 (1950). Moreover, the trial court specifically instructed the jury to disregard any mannerisms of his that they might have interpreted as indicating a position on any of the facts to be decided. Tr. 2508-09. In view of the foregoing, Ehrlichman's attack on the impartiality of the trial judge's demeanor must be dismissed as frivolous.

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10. Section 241 provides:

If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured him by the Constitution or laws of the United States, or because of his having so exercised the same; or

If two or more persons go in disguise on the highway, or on the premises of another, with intent to prevent or hinder his free exercise or enjoyment or any right or privilege so se cured

They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; and if death results, they shall be subject to imprisonment for any term of years or for life. 18 U.S.C. § 241 (1972).

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