509 F.2d 334 (D.C. Cir. 1974), 73--2252, United States v. McCord

Docket Nº:73--2252.
Citation:509 F.2d 334
Party Name:UNITED STATES of America v. James W. McCORD, Jr., a/k/a Edward J. Warren a/k/a Edward J. Hamilton, Appellant.
Case Date:December 12, 1974
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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509 F.2d 334 (D.C. Cir. 1974)

UNITED STATES of America

v.

James W. McCORD, Jr., a/k/a Edward J. Warren a/k/a Edward J.

Hamilton, Appellant.

No. 73--2252.

United States Court of Appeals, District of Columbia Circuit

December 12, 1974

Argued En Banc June 14, 1974.

Certiorari Denied April 21, 1975.

See 95 S.Ct. 1656.

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Bernard Fensterwald, Jr., and William G. Ohlhausen, Washington, D.C., for appellant.

Sidney M. Glazer, Counsel to the Special Prosecutor, with whom Leon Jaworski, Special Prosecutor, Philip A. Lacovara, Counsel to the Special Prosecutor Maureen E. Gevlin, David H. Kaye and Robert L. Palmer, Asst. Special Prosecutors, were on the brief, for appellee.

Before BAZELON, Chief Judge, and WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON, and WILKEY, Circuit Judges, sitting en banc.

BAZELON, Chief Judge:

James McCord was arrested by Washington, D.C. police with four other persons at approximately 2:00 a.m. on June 17, 1972 in the offices of the Democratic National Committee at the Watergate Office Building. McCord had on his person or in his control documents removed from the files of the Democratic National Committee, burglary tools, electronic wiretapping and eavesdropping devices and a small mace dispenser. Along with G. Gordon Liddy, McCord was tried before a jury commencing on January 8, 1970 and was convicted on January 30 of three counts of illegal interception of oral and wire communications, 1 two counts of possession of intercepting devices, 2 two counts of burglary, 3 and one count of conspiracy to commit the foregoing offenses. 4 He has filed a petition seeking collateral relief from that conviction as well as an appeal from the sentence entered by the District Court on November 9, 1973.

We affirm McCord's conviction in its entirety. In Part I of our opinion, we discuss certain procedural issues created by the pendency of both an appeal and a petition for collateral relief. (Pp. 339--342). In Part II, we review McCord's claim that he deserves a new trial on the basis of newly discovered evidence and his claim that he has been subjected to a selective prosecution. We conclude that he has no valid defense to which this newly discovered evidence would be relevant (pp. 342--343) and alternatively, that the newly discovered evidence would not create a reasonable doubt about McCord's guilt. (Pp. 343--346). We furthermore hold that he has not timely asserted and has therefore waived his claim of selective prosecution. (P. 346). In Part III, we consider McCord's claim that Judge Sirica's allegedly 'inquisitorial' conduct of McCord's trial is grounds for a new trial. We conclude that this claim is without merit. (Pp. 346--348). In Part IV, we proceed to review McCord's most important contention: that serious prosecutorial misconduct during his trial was so repugnant to civilized notions of criminal justice that his indictment should be dismissed. We reject this contention. (Pp. 348--351). Finally, in Part V, we address McCord's claim that he has been denied the effective assistance of counsel and find this ground for reversal is without merit. (Pp. 351--353).

I. The Procedural Context of McCord's Claims of Error.

On June 8, 1973, better than four months after his conviction and five months before his sentence, McCord moved the District Court for relief 'in the nature of' a writ of error coram nobis, seeking a new trial on various grounds and also, in the alternative, a

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judgment of acquittal. 5 While coram nobis is available to McCord in these circumstances, 6 we take, as does the Special Prosecutor, the part of his motion requesting a new trial on the basis of newly discovered evidence as filed under Fed.R.Crim.P. 33 since that Rule permits such a motion within two years of final judgment and may involve a lesser standard of proof than coram nobis. 7 The writ is available for that part of McCord's motion seeking a new trial on grounds other than newly discovered evidence or alternatively a judgment of acquittal. 8 However, we construe McCord's major arguments for acquittal as directed to defects in the indictment and thus actually request a dismissal of the indictment and not technically a judgment of acquittal. We see no reason in the nature of coram nobis or the principle of collateral relief generally which would prevent coram nobis from being used to obtain dismissal of an indictment. Accordingly, we hold that the writ may be properly used to seek dismissal

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of McCord's indictment. 9 McCord also appeals from the judgment of guilty and sentence entered on November 9.

With the exception of the claims discussed in Part III infra, McCord did not raise any of the claims at trial that he now presses in this appeal. Thus, we cannot decide these claims on McCord's appeal from his sentence unless we find that the District Court's failure to rule on these claims on its own motion was plain error. 10 The individual views of the author of this opinion on the plain error rule are set out in the margin. [*] These various claims, which McCord asserts now on appeal, could be reached under the writ of error coram nobis. However, coram nobis, like § 2255 and the writ of habeas corpus, may collaterally attack only constitutional or jurisdictional errors or serious defects in the trial either not correctible on direct appeal or where exceptional circumstances justify the failure to appeal on those grounds. 11 Here McCord does appeal on the appropriate grounds but he cannot have us hear the appeal unless the claim is plain error since he did not raise the claims below. In order to accommodate the pendency of the appeal and the claim for collateral relief, we apply similar standards to determine whether a claim of error should be reached under principles of plain error and whether that claim may be reached under principles applicable to collateral relief. 12 This ruling relates to

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a consolidated appeal and is not intended as an en banc ruling that any error that might have been noticed on the direct appeal under the plain error rule as a ground for reversal also warrants the granting of relief on collateral attack. A conceptually distinct issue is whether McCord has deliberately by-passed his remedies at trial or waived his claim to relief at trial such that he cannot press such a claim on his appeal or in his petition for collateral relief. 13

II. The Claims Based on Newly Discovered Evidence and the Alleged Selective Prosecution.

McCord's motion for a new trial on the basis of newly discovered evidence encompasses three general claims. First, he presents a straightforward claim that new evidence which bears on his guilt or innocence has been discovered and standing alone it justifies a new trial. Second, he claims that this new evidence was within the control of the prosecution 14 and thus he deserves a new trial under the principle of Brady v. Maryland,373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Third, he claims that the prosecution not only failed to disclose this evidence relevant to his guilt or innocence but actually used perjured testimony to obtain his conviction.

McCord points to four particular areas in which new evidence has been developed which could be relevant to his trial. First, McCord directs our attention to the fact that Jeb Magruder, deputy director of the Committee to Re-elect the President, and Herbert Porter, also associated with that Committee, have both admitted that they perjured themselves at McCord's trial when asked whether they authorized or had knowledge of McCord's illegal entry into the Democratic National Committee offices. Second, McCord notices that former Acting Director of the FBI, Patrick Gray, has admitted destroying materials relating to the authorization of the break-in and that certain persons, possibly including John Dean, Counsel to the President, destroyed the contents of coconspirator Howard Hunt's safe in the White House, material which also might be relevant to the authorization of the burglary. Third, new evidence has come forward concerning the role of Howard Hunt and Gordon Liddy, co-conspirators with McCord in the Watergate entry, in the White House Special Investigations Unit, evidence allegedly relating to a domestic security justification for the Watergate break-in. Fourth, McCord claims there is other newly discovered evidence, largely on the various tape recordings of conversations between former President Richard Nixon and his subordinates, which directly implicates John Mitchell, former Attorney-General of the United States, and persons formerly in the White House in the authorization of the Watergate break-in.

McCord's claims relating to the existence of newly discovered evidence and the prosecution's failure to disclose that evidence are really two sides of the same coin and both may be disposed of by the same reasoning. Unless the newly discovered evidence not disclosed by the prosecution would create in either

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our minds or the minds of the jury 'a reasonable doubt about appellant's guilt', 15 neither the existence of newly discovered evidence nor the prosecution's failure to disclose it is grounds for a new trial. In McCord's case, this newly discovered evidence not disclosed by the prosecution is simply not relevant at all to the basic issue at his trial: did he or did he not break into the offices of the Democratic National Committee with the intent to install or remove wiretaps and in concert with other individuals. Indeed, the evidence on that issue is virtually conceded by McCord. The only possible issue in a new trial to which this newly...

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