186 F.3d 505 (4th Cir. 1999), 98-1962, Wells v. Liddy

Docket Nº:98-1962 (CA-97-946-JFM)
Citation:186 F.3d 505
Party Name:IDA MAXWELL WELLS, Plaintiff-Appellant, v. G. GORDON LIDDY, Defendant-Appellee, PHILLIP MACKIN BAILLEY, Movant.
Case Date:July 28, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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186 F.3d 505 (4th Cir. 1999)

IDA MAXWELL WELLS, Plaintiff-Appellant,

v.

G. GORDON LIDDY, Defendant-Appellee, PHILLIP MACKIN BAILLEY, Movant.

No. 98-1962 (CA-97-946-JFM)

United States Court of Appeals, Fourth Circuit

July 28, 1999

Argued: March 3, 1999

Appeal from the United States District Court for the District of Maryland, at Baltimore. J. Frederick Motz, Chief District Judge.

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COUNSEL ARGUED: David M. Dorsen, WALLACE, KING, MARRARO & BRANSON, P.L.L.C., Washington, D.C., for Appellant. Kerrie L. Hook, COLLIER, SHANNON, RILL & SCOTT, P.L.L.C., Washington, D.C., for Appellee. ON BRIEF: John B. Williams, COLLIER, SHANNON, RILL & SCOTT, P.L.L.C., Washington, D.C.; Ty Cobb, HOGAN & HARTSON, Baltimore, Maryland, for Appellee.

Before WILKINS and WILLIAMS, Circuit Judges, and LEE, United States District Judge for the Eastern District of Virginia, sitting by designation.

Reversed and remanded by published opinion. Judge Williams wrote the opinion, in which Judge Wilkins and Judge Lee joined.

OPINION

WILLIAMS, Circuit Judge:

Ida Maxwell "Maxie" Wells, who was a secretary at the Democratic National Committee (DNC) for a short time in 1972, filed a defamation action against G. Gordon Liddy stemming from his advocation of an alternative theory explaining the purpose of the June 17, 1972, Watergate break-in. During several public appearances and on a world wide web site Liddy stated that the burglars' objective during the Watergate break-in was to determine whether the Democrats possessed information embarrassing to John Dean.1 More specifically, Liddy asserted that the burglars were seeking a compromising photograph of Dean's fiance that was located in Wells's desk among several photographs that were used to offer prostitution services to out of-town guests.

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Upon Liddy's motion for summary judgment, the district court determined that Wells was an involuntary public figure who could not prove actual malice by clear and convincing evidence. Additionally, the district court determined that Louisiana law applied to all of Wells's defamation counts and that Louisiana law would require even a private figure to prove actual malice. On the basis of these rulings, the district court entered judgment in Liddy's favor. Because we determine that Wells is not a public figure for purposes of the ongoing public debate regarding Watergate and we also conclude that Louisiana law does not apply to two of Wells's defamation counts, we reverse the district court's grant of summary judgment and remand for further proceedings consistent with this opinion.

I.

In February of 1972, the then-twenty-three-year-old Wells moved from her hometown of Jackson, Mississippi to Washington, D.C. and began work at the DNC as the secretary to Spencer Oliver, Executive Director of the Association of State Democratic Chairmen. Wells continued in the employ of the DNC and Oliver until late July 1972. Throughout her employment, the DNC offices were located in the Watergate complex.

A few months after Wells started her job at the DNC, Frank Wills, a security guard, noticed a piece of tape propping open the door to the DNC offices while making his routine rounds during the early morning hours of June 17, 1972. See David Behrens, Day by Day, Newsday, June 17, 1992, at 63. Wills removed the tape. See id. When he made his next scheduled rounds, however, the tape had been returned to the doorway. See id. Suspecting that something was afoot, Wills called the police. See id. Shortly thereafter, the police arrived and apprehended five men: James W. McCord, Frank Sturgis, Eugenio R. Martinez, Virgilio R. Gonzalez, and Bernard L. Barker. See Alfred E. Lewis, Five Held in Plot to Bug Democrats' Office Here, Wash. Post, June 18, 1972, at A1. Of these five, one was a recent CIA retiree, three were Cuban emigres, and the fifth had trained Cuban exiles for possible guerrilla activity after the failed Bay of Pigs invasion. See id. The men were wearing business attire and surgical gloves. They were carrying $2,300 in sequentially numbered one hundred dollar bills, sophisticated electronic surveillance equipment, lock picks, door jimmies, one walkie-talkie, a short wave receiver, forty rolls of thirty five millimeter film, three pen-sized tear gas guns, see id., and the White House phone number of E. Howard Hunt.2 When initially asked about the events at the Watergate, White House spokesman Ronald Ziegler dismissed the incident as "A third-rate burglary attempt." Gaylord Shaw, Watergate Third Rate Burglary, Newsday, June 17, 1992, at 62.

In the wake of the burglary, the FBI determined that Spencer Oliver's telephone conversations were being electronically monitored from a listening post located in room 723 of the Howard Johnson's Motor Inn across the street from the Watergate. Because Wells often used Oliver's phone to make personal calls, some of her conversations were intercepted.3 Additionally, a drawer of Wells's desk was opened during the break-in. As a result, she was questioned by the FBI. Although there is some factual dispute between the parties over whether the FBI informed Wells of the discovery, the FBI also determined

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that a key found in a burglar's possession fit the lock on Wells's desk.

In September of 1972, Wells was subpoenaed to appear as a witness before the federal grand jury investigating the break-in. On September 15, 1972, the grand jury indicted the five burglars as well as the two men who allegedly had coordinated the break-in, E. Howard Hunt, a White House aide, and G. Gordon Liddy, counsel for the Committee to Reelect the President. Watergate Chronology, News & Observer (Raleigh, N.C.), June 17, 1992, at A4. Appearing before Judge John Sirica in United States District Court for the District of Columbia in early January of 1973, the five Watergate burglars pleaded guilty to a variety of burglary, conspiracy, and wiretapping charges. See John Berlau & Jennifer G. Hickey, List of Jailbirds is Long, but Sentences are Short, Insight Mag., June 23, 1997, at 10. Each of the five burglars was sentenced to a prison term.4 See A Watergate Scorecard, Wall St. J., Jan. 26, 1998, at A19. E. Howard Hunt also pleaded guilty to six counts of burglary, conspiracy, and wiretapping. See Berlau & Hickey, supra . As a result, he was imprisoned for thirty-three months. See A Watergate Scorecard,. Liddy neither pleaded guilty nor cooperated with the prosecution. He was tried on multiple counts of burglary, conspiracy, and interception of wire and oral communications, was found guilty, and received a sentence of six to twenty years imprisonment. See Berlau & Hickey, supra. Liddy served fifty-two months in jail as a result of his convictions. See Watergate Scorecard, supra .

Shortly after pleading guilty, James McCord wrote a letter from prison stating that he had been pressured to plead guilty and to lie during the district court proceedings relating to the Watergate incident. See Watergate Timeline, Cin. Enquirer, June 17, 1997, at A6. In his letter, McCord implicated John Dean, the president's counsel, and John Mitchell, the Attorney General, as the individuals who had been pressuring the Watergate burglars to withhold information. See Watergate TimeLine (visited April 29, 1999), .

As a result of McCord's revelations implicating high level administration officials, in February of 1973 the United States Senate voted (77-0) to establish a Select Committee on Presidential Campaign Activities to be chaired by Senator Sam Ervin of North Carolina. See id. Wells, who had by this time relocated to Atlanta, Georgia, returned to Washington on June 20, 1974 to testify before the Committee. Wells's testimony was not part of the televised Watergate hearings. During its investigation, the Senate Committee discovered a campaign of political "dirty tricks" of which the Watergate break-in was a part. The White House's effort to cover up its involvement led to the imprisonment of several high ranking White House officials and ultimately to the resignation of President Nixon in August of 1974.

Wells returned to Washington in 1976 and served as a secretary to President Carter. After she left that post, she entered a Ph.D. program in English at Louisiana State University and at the time of this lawsuit planned to pursue a career as a college professor. Liddy was released from prison in 1977, and since that time he has become a successful radio talk show personality. He has also published his autobiography, Will, and is a frequent speaker on the lecture circuit.

In 1991, Len Colodny and Robert Gettlin authored a book entitled Silent Coup: The Removal of a President. Len Colodny & Robert Gettlin, Silent Coup: The Removal of a President (1991). In Silent

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Coup, Colodny and Gettlin discussed new evidence regarding the Watergate break-in and concluded that the purpose of the break-in was not simply to replace a malfunctioning listening device that had been installed in an earlier break-in at the DNC in May 1972.5 Rather, Colodny and Gettlin concluded that John Dean had personally authorized the Watergate break-in to protect his own reputation and the reputation of his now-wife, Maureen Biner.6

In Silent Coup, Colodny and Gettlin assert that an attorney, Phillip Mackin Bailley, assisted a woman named Erica L."Heidi" Rikan expand her preexisting call-girl operation located at the Columbia Plaza apartments, near the Watergate, by promoting Rikan's services to Bailley's DNC connections. The book also notes that Maureen Biner was a close friend of Rikan. According to Silent Coup, when Bailley came to visit the DNC, he asked for Spencer...

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