U.S. v. Barker

Citation514 F.2d 208,168 U.S.App.D.C. 312
Decision Date25 February 1975
Docket NumberNos. 73-2185,s. 73-2185
PartiesUNITED STATES of America v. Bernard L. BARKER, a/k/a Frank or Fran Carter, Appellant. UNITED STATES of America v. Eugenio R. MARTINEZ, a/k/a Gene or Jene Valdes, Appellant. UNITED STATES of America v. Frank A. STURGIS, a/k/a Frank Angelo Fiorini, a/k/a Edward J. Hamilton,a/k/a Joseph DiAlberto or D'Alberto, Appellant. UNITED STATES of America v. Virgilio R. GONZALEZ, a/k/a Raul or Raoul Godoy or Goboy, Appellant. to 73-2188.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Daniel E. Schultz, Washington, D. C., for appellants.

Robert L. Palmer, Asst. Special Prosecutor, Watergate Special Prosecution Force, with whom Leon Jaworski, Special Prosecutor at the time the brief was filed, Philip A. Lacovara, Counsel to the Special Prosecutor, and Sidney M. Glazer, Kenneth S. Geller, and David H. Kaye, Asst. Special Prosecutors, Watergate Special Prosecution Force, were on the brief, for appellee.

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

J. SKELLY WRIGHT, Circuit Judge:

Appellants challenge denial by the District Court of their motions to withdraw guilty pleas to seven counts of an indictment arising out of the now-famous "Watergate Break-in." We affirm. We find in the court's action a proper exercise of its discretion under Rule 32(d), Federal Rules of Criminal Procedure. 1

I. THE PROCEEDINGS

Appellants were the foot soldiers of the Watergate Break-in. They came to the affair from the anti-Castro movement, centered in Miami's Cuban-American community, and from a long history of service in the Central Intelligence Agency (CIA) and, apparently, in other official or quasi-official agencies specializing in "clandestine" operations. In the early morning hours of June 17, 1972, District of Columbia police found them inside the headquarters of the Democratic Party's National Committee (DNC) in the Watergate office complex. They had entered surreptitiously, picking the locks; they wore rubber surgical gloves to obscure fingerprints; they had been rifling through the DNC's documents and papers and carried with them devices and tools for electronic "bugging" and "wiretapping."

Arrested with them was James McCord, 2 a former CIA agent who was then employed as a security officer by the Committee for Re-Election of the President (Richard M. Nixon) (CRP); the next few days brought the arrest of their immediate supervisors in the bizarre enterprise: E. Howard Hunt, 3 a former CIA agent who was then, or had recently been, employed as a "consultant" to the White House, with an office in that building; and G. Gordon Liddy, 4 a former White House employee who was then employed as General Counsel to the Finance Committee for the Re-Election of the President (FCRP).

The purpose of the operation was to gather political information damaging to the Democratic Party and, by consequence, useful to the President's re-election effort. But appellants now claim that, at the time of the break-in, they sincerely, though erroneously, believed the operation to be a "national security" mission, authorized by a "government intelligence agency," to examine Before exploring the legal issues raised by appellants' contentions, it is necessary to recount in rather extensive detail the proceedings as they evolved in the District Court.

alleged financial ties between the Democratic Party and the Castro regime in Cuba; appellants further contend that, at the time they tendered their guilty pleas, they sincerely, though again erroneously, believed that the selfsame "intelligence agency" wished them to maintain silence about the operation and forfeit their right to a trial. Referring to these twin erroneous beliefs, appellants urge that withdrawal of their pleas should be granted because the pleas were entered under circumstances of "fraud" and "duress," and because the break-in was executed, on their part at least, without the "criminal intent" requisite to conviction.

A. The Indictment, the Trial, and the Pleas

An indictment issued on September 15, 1972, charging each of the appellants with seven counts, including burglary, illegal electronic surveillance, and conspiracy. 5 McCord, Hunt, and Liddy were also charged in the indictment. The seven defendants pleaded not guilty to all charges, and on January 8, 1973, jury selection commenced for a trial before then Chief Judge John J. Sirica. Appellants were represented by retained counsel, Henry Rothblatt, Jr., a noted criminal trial lawyer.

On January 10, 1973, the prosecution made a detailed opening statement to the jury, outlining the evidence and testimony which the Government planned to introduce. The prosecutor alleged that Liddy, Hunt, and McCord had used funds from the FCRP in a systematic program of espionage against the Democratic Party and its presidential candidates. This program allegedly included, among other oddities, an unsuccessful conspiracy to break into and "bug" the Washington headquarters of Senator George McGovern, and two break-ins, to install electronic eavesdropping devices, at the DNC's Watergate headquarters. The prosecutor charged that each appellant participated in the conspiracy to bug McGovern headquarters and in the two Watergate break-ins; that appellant Barker had interviewed ex-CIA personnel for an information-gathering "operation" against the Democratic National Convention and "against certain (Democratic Party) leaders," particularly Lawrence O'Brien, Chairman of the DNC; and that Barker had received from the FCRP, and cashed, five checks totalling $114,000. As to the defendants' motives, the prosecutor stated:

Obviously it was a political motive, political campaign. The operation was directed against the Democratic Party, particularly Senator George McGovern, because of his alleged left-wing views. You heard me you (sic) tell you what defendant McCord was primarily interested in on those monitored conversations Mr. Baldwin was hearing (conversations monitored from a wiretap installed at DNC headquarters), whether a sensitive or personal nature.

The interests of the persons, the defendants in this case may vary, that is, the motivation of defendant Hunt and defendant Liddy may have been different Tr. 62-63. The prosecutor claimed that appellants had been in dire financial straits before joining the conspiracy and that they had been given very large sums of money for their participation.

from the motivations of the four defendants from Miami, and they in turn may have had a different motivation from defendant McCord. Certainly the facts will suggest itself to you based on the information that we produce before you it was a financial motive here, financial motive. At least on the part of those who were arrested inside the Watergate the early morning hours of June 17th.

Opening statements were also made by McCord's lawyer and by Rothblatt, appellants' counsel. Both attorneys emphasized the issue of motives. Thus, McCord's lawyer said:

I can tell you what the evidence will not show. The evidence will not show that Mr. McCord was present at the Watergate on the night in question for any type of financial reward or gain.

We will show that Mr. McCord had no criminal intent. We will show that Mr. McCord was not aware of all of those facts which might make his conduct criminal.

He had no evil-meaning mind. He had no evil-doing hand.

Tr. 78-79. Rothblatt's opening argument outlined a similar defense.

But I ask you on behalf of my clients to pinpoint the evidence as it unfolds on Barker, Sturgis, Gonzalez, and Martinez (appellants here), as to their criminal intent, evil mind, and motives.

* * * (W)e underline "motives" and we ask you to concentrate your attention on the motives in this case.

The evidence will show that all of these four accused were part of our Government and served our Government during a planned operation on behalf of our Government back in 1951 that Mr. Silbert (the prosecutor) referred to as the Bay of Pigs.

These were men who took orders in military fashion and never questioned orders. These were men who were used to serving their Government loyally and following orders.

THE COURT: Let me ask you a question. Is it your (d)efense that they were taking orders from somebody, were ordered to go into the Watergate? Is this what you are going to show?

MR. ROTHBLATT: I think the evidence even as outlined by Mr. Silbert shows that in part, Your Honor.

THE COURT: I wish you would get down to the basic issues here: why did they go into the Watergate? Tell the (j)ury what you think the evidence is going to be.

MR. ROTHBLATT: * * * The evidence will show that they were following their instructions in typical military fashion; that they have been trained to follow with no evil motive.

Tr. 82, 86, 88. During these opening statements, the judge made clear that he viewed the issue of "criminal intent" as an important one.

Of course the Jury is going to want to know why the men went in there. * * * That is one of the crucial issues in the case. Who paid them. Did they get any money to go in there. Was it purely for political espionage. What was the purpose.

I think these are the things that might be discussed in a case like this.

Tr. 88.

Immediately following these opening arguments, Hunt's attorney announced in open court that his client wished to change his plea to guilty with respect to three of the six counts charged against him. The prosecutor stated his acceptance of this compromise plea, but the next day, January 11, 1973, the court rejected the plea offer, noting the Government's apparent ability "to introduce On January 12 appellants wrote an extraordinary letter to their attorney, Rothblatt, which he immediately delivered to the court. The letter read:

substantial evidence relating to all eight counts of the indictment" "against Mr. Hunt and the...

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