546 F.2d 940 (D.C. Cir. 1976), 74-1883, United States v. Barker

Docket Nº:74-1883, 74-1884.
Citation:546 F.2d 940
Party Name:UNITED STATES of America v. Bernard L. BARKER, Appellant. UNITED STATES of America v. Eugenio R. MARTINEZ, 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 940 (D.C. Cir. 1976)



Bernard L. BARKER, Appellant.



Eugenio R. MARTINEZ, Appellant.

Nos. 74-1883, 74-1884.

United States Court of Appeals, District of Columbia Circuit

May 17, 1976

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Daniel E. Schultz, Washington, D. C. (appointed by this Court), for appellants Barker and Martinez.

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, Washington, D. C., Maureen E. Gevlin 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.

Appellants Bernard L. Barker and Eugenio R. Martinez were convicted by a jury of the United States District Court for the District of Columbia of conspiracy to violate the civil rights of Dr. Lewis J. Fielding, in violation of 18 U.S.C. § 241. Appellants were members of the "Special Investigations" unit which burglarized Dr. Fielding's office in search of records on his patient, Daniel Ellsberg. The convictions were appealed to the United States Court of Appeals, where argument was heard in conjunction with the companion appeals of

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John D. Ehrlichman and G. Gordon Liddy. In opinions by Judges Wilkey and Merhige, to which Judge Leventhal dissents in part, the convictions of Barker and Martinez are reversed.

The opinions by the majority deal with two substantial points raised on appeal. First, Appellants argue that the conviction under 18 U.S.C. § 241 must be reversed because the specific intent requirement of that statute has not been met. Barker and Martinez assert that the requisite specific intent is present only where the conspirators' predominant purpose is an act in violation of civil rights, and thus that it is lacking in this case where the primary objective was the inspection of Ellsberg's records rather than the burglary of Dr. Fielding's office. Citing Anderson v. United States, 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), the court unanimously rejects this argument on the basis that specific intent is present whether actions violating federal civil rights are a predominant or incidental objective of the conspiracy. (Wilkey op. at ---- - ---- of 178 U.S.App.D.C., at 948 of 546 F.2d, Merhige op. at --- of 178 U.S.App.D.C., at 954 of 546 F.2d, Leventhal op. at ---- - ---- of 178 U.S.App.D.C., at 970-971 of 546 F.2d).

Second, Appellants challenge their convictions on the ground that the District Court's evidentiary rulings and jury instructions denied them the opportunity to prove a defense of good faith reliance on apparent authority. More specifically, Barker and Martinez complain: (1) that evidence was excluded as to the reasonableness of their belief in the authority of E. Howard Hunt, their White House superior, to order such an operation; and (2) that the District Court rejected a proposed jury instruction allowing a defense for reasonable, good faith reliance on apparent authority, and instructed instead that absent belief that a valid warrant had been obtained, any mistake as to the legality of the operation was no defense.

Judges Wilkey and Merhige conclude that the District Court erred in rejecting the possibility of a limited mistake of law defense. While both recognize the general rule that a mistake of law is no defense, they conclude that the District Court's refusal to recognize an exception to that doctrine possibly applicable to this case requires reversal of the convictions.

Judge Wilkey states that Appellants might have been able to bring themselves within an exception to the mistake of law doctrine relating to assistance of a governmental official in the performance of a governmental function. In order to establish such a defense they would have to prove (1) facts justifying their reasonable reliance on Hunt's apparent authority and (2) a plausible legal theory under which Hunt could in fact have such authority. He concludes that the facts justifying reliance might have been proven had the court admitted the evidence offered by Appellants, and that a plausible legal theory supporting such a defense is presented by the longstanding Justice Department view that the President may authorize warrantless searches related to foreign espionage or intelligence. (Wilkey op. at --- - --- of 178 U.S.App.D.C., at 949-953 of 546 F.2d).

Judge Merhige finds possibly applicable to Appellants an exception to the mistake of law rule for reasonable reliance upon official interpretations of the law. He states that the jury could have concluded that Assistant to the President, John Ehrlichman, had expressed or implied that the break-in was legal under a national security rationale, and that this view was relayed to Appellants by Hunt. Further, in view of the substantial power of the Executive Branch in the field of foreign affairs, a jury could further find that Appellants acted reasonably in relying on this interpretation of the law. (Merhige op. at ---- - ---- of 178 U.S.App.D.C., at 954-957 of 546 F.2d).

The convictions are accordingly REVERSED.

Judge Leventhal dissents on the ground that Appellants have failed to allege facts which might bring them within any established exception to the doctrine that a mistake of law is no defense.

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

Opinion Per Curiam.

Circuit Judge WILKEY and District Judge MERHIGE filed opinions reversing the judgment of the District Court.

Dissenting Opinion filed by Circuit Judge LEVENTHAL.


The mandate of the court is that the Judgment of the District Court is reversed and the case is remanded for a new trial. Judges Wilkey and Merhige have filed separate opinions. Judge Leventhal dissents.

WILKEY, Circuit Judge:

Two of the "footsoldiers" of the Watergate affair, Bernard Barker and Eugenio Martinez, are with us again. They haven't been promoted, they are still footsoldiers. They come before us this time to challenge their convictions under 18 U.S.C. § 241, for their parts in the 1971 burglary of the office of Dr. Lewis J. Fielding.


During the summer of 1971, following the publication of the now famous "Pentagon Papers," a decision was made to establish a unit within the White House to investigate leaks of classified information. This "Room 16" unit, composed of Egil Krogh, David Young, G. Gordon Liddy, and E. Howard Hunt and under the general supervision of John Ehrlichman determined, or was instructed, to obtain all possible information on Daniel Ellsberg, the source of the Pentagon Papers leak. 1 After Ellsberg's psychiatrist, Dr. Fielding, refused to be interviewed by FBI agents, the unit decided to obtain copies of Ellsberg's medical records through a covert operation.

Hunt had been a career agent in the CIA before his employment by the White House. One of his assignments was as a supervising agent for the CIA in connection with the Bay of Pigs invasion, and, as "Eduardo," he was well known and respected in Miami's Cuban-American community. A fact destined to be of considerable importance later, he had been Bernard Barker's immediate supervisor in that operation. When the "Room 16" unit determined that it would be best if the actual entry into Dr. Fielding's office were made by individuals not in the employ of the White House, Hunt recommended enlisting the assistance of some of his former associates in Miami.

Hunt had previously reestablished contact with Barker in Miami in late April 1971, and he met Martinez at the same time. He gave Barker an unlisted White House number where he could be reached by phone and wrote to Barker on White House stationery. On one occasion Barker met with Hunt in the Executive Office Building. By August 1971 Hunt returned to Miami and informed Barker that he was working for an organization at the White House level with greater jurisdiction than the FBI and the CIA. He asked Barker if he would become "operational" again and help conduct a surreptitious entry to obtain national security information on "a traitor to this country who was passing . . . classified information to the Soviet Embassy." He stated further that "the man in question . . . was being considered as a possible Soviet agent himself."

Barker agreed to take part in the operation and to recruit two additional people. He contacted Martinez and Felipe deDiego. Barker conveyed to Martinez the same information Hunt had given him, and Martinez agreed to participate. Like Barker, Martinez had begun working as a covert agent for the CIA after Castro came to power in Cuba. Although Barker's formal

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relationship with the CIA had ended in 1966, Martinez was still on CIA retainer when he was contacted.

Both testified at trial that they had no reason to question Hunt's credentials. He clearly worked for the White House and had a well known background with the CIA. During the entire time they worked for the CIA, neither Barker nor Martinez was ever shown any credentials by their superiors. Not once did they receive written instructions to engage in the operations they were ordered to perform. Nevertheless, they testified, their understanding was always that those operations had been authorized by the Government of the United States. That they did not receive more detail on the purpose of the Fielding operation or its target was not surprising to them...

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