546 F.2d 910 (D.C. Cir. 1976), 74-1882, United States v. Ehrlichman

Docket Nº:74-1882.
Citation:546 F.2d 910
Party Name:UNITED STATES of America v. John D. EHRLICHMAN, Appellant.
Case Date:May 17, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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546 F.2d 910 (D.C. Cir. 1976)

UNITED STATES of America

v.

John D. EHRLICHMAN, Appellant.

No. 74-1882.

United States Court of Appeals, District of Columbia Circuit

May 17, 1976

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Certiorari Denied Feb. 22, 1977.

See 97 S.Ct. 1155.

William Snow Frates and Andrew C. Hall, Miami, Fla., for appellant John Ehrlichman.

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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.

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 546 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. at ---- - ---- of 178 U.S.App.D.C., 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 Criminal

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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), 1 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. 4 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 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

The publication of the "Pentagon Papers" 5 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,

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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 the White House." 6

The members of the unit were clear that the "covert operation" in question would be a surreptitious entry into Dr. Fielding's office. 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 Cuban-American 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 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...

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