546 F.2d 973 (D.C. Cir. 1976), 75-1383, United States v. Mardian

Docket Nº:75-1383.
Citation:546 F.2d 973
Party Name:UNITED STATES of America v. Robert C. MARDIAN, Appellant
Case Date:October 12, 1976
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 973

546 F.2d 973 (D.C. Cir. 1976)

UNITED STATES of America

v.

Robert C. MARDIAN, Appellant

No. 75-1383.

United States Court of Appeals, District of Columbia Circuit

October 12, 1976

Argued Jan. 6, 1976.

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David Ginsburg, Washington, D. C., with whom David G. Bress, Ronald P. Wertheim, and Thomas C. Green, Washington, D. C., were on the brief, for appellant.

Peter M. Kreindler, Washington, D. C., Counsel to the Sp. Prosecutor, with whom Henry S. Ruth, Jr., Sp. Prosecutor, Washington, D. C., at the time the brief was filed, Peter F. Rient, Kenneth S. Geller, Maureen E. Gevlin, Jay B. Stephens and Judith A. Denny, Asst. Sp. Prosecutors, Washington, D. C., and Sidney M. Glazer, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellee.

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

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge.

Robert C. Mardian appeals from his conviction of conspiracy under 18 U.S.C. § 371 (1970). He was tried in the District Court along with H. R. Haldeman, John D. Ehrlichman, and John N. Mitchell, whose appeals we are also deciding today. United States v. Haldeman, Nos. 75-1381, 75-1382, 75-1384 & 76-1441. The jury found a conspiracy to obstruct justice and defraud the United States by impeding a grand jury investigation into a break-in at the Watergate Office Building and into other related matters. The basic facts of the case are recited at length in our Haldeman opinion and need not be repeated here. A brief summary of the Government's evidence as to Mardian's involvement will suffice.

1. Mardian met with Mitchell, Jeb Magruder, and Frederick LaRue in California on June 17, 1972, the day of the Watergate break-in, to discuss how the Committee to Re-elect the President (CRP) should respond to the incident. Mardian then placed a number of calls in an effort to contact Attorney General Kleindienst and have the burglars released before their identities became known. Tr. 4530-4536, 6562-6565.

2. On June 18 Mardian helped Magruder and LaRue prepare a press release to be issued by Mitchell, disclaiming any CRP tie to the break-in, although by then Mardian knew that Mitchell and Magruder, Director and Deputy Director of CRP, and G. Gordon Liddy, CRP General Counsel, were involved. Tr. 4537-4540, 6565-6569, JA 912.

3. On June 19 Mardian was present at a meeting where Mitchell suggested that Magruder destroy Gemstone documents. Tr. 4540-4550, 6570-6573.

4. On June 20 or 21 Mardian and LaRue met with Liddy. After receiving assurances of confidentiality, Liddy described the Gemstone intelligence-gathering program, Mitchell's and Magruder's involvement, and

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his own role in carrying out the plan. Mardian, in accordance with his promise, did not reveal this information except to Mitchell. Moreover, even after gaining this knowledge, Mardian actively misled Kenneth Parkinson into believing that Liddy was acting on a lark of his own. Parkinson, a co-defendant whom the jury found not guilty, was the lawyer hired by Mardian to serve as trial counsel for CRP in civil suits growing out of the Watergate break-in. Tr. 2816-2817, 4570-4573, 6598-6604, 6655-6659.

5. Mardian told John Dean that Dean could monitor the Government investigation of the break-in most effectively by getting copies of FBI lead sheets, and, although he was no longer a Government official, Mardian himself examined FBI documents during the course of the conspiracy. He also urged Dean to slow down the FBI investigation. Tr. 2830-2831, 2836-2837.

6. Mardian attended meetings where the participants developed a false cover story to explain the $199,000 Magruder had authorized for disbursement to Liddy. Mardian participated at least to the extent of suggesting that the original tale simply would not hold up before the grand jury. Tr. 2759-2763, 4552-4562, 6652-6660.

7. Mardian had some small role in the development of hush money plans. He learned from Liddy on June 20 or 21 of CRP "commitments" to the burglars for legal fees and other expenses, and was present when LaRue assured Liddy that the commitments would be kept. Tr. 4010-4011, 6601-6603. At a meeting on June 24 where possible sources for the money were discussed, Mardian encouraged the others to look to the Central Intelligence Agency (CIA) to provide the funds. Tr. 2728-2730, 6610.

Mardian denied that most of these incidents took place, and for others he offered plausible explanations consistent with his innocence. 1 The evidence was sufficient to go to the jury, but it must be acknowledged that the proof as to most of these incidents was not as strong as the evidence relating to the other three defendants who were convicted. For example, only Jeb Magruder placed Mardian with any confidence at the June 19 meeting at the precise time when Mitchell directed Magruder to destroy Gemstone documents. Tr. 4548-4550. LaRue was there but could not confirm Mardian's presence at the crucial time. Tr. 6572-6573. Dean too was uncertain about when Mardian left, but in any event Dean heard no suggestion that documents be burned. Tr. 2673-2674. Under cross-examination even Magruder expressed some uncertainty as to when Mardian departed. Tr. 5215. Mardian insisted he left early to begin making phone calls to find a trial lawyer for the Watergate civil suits. Tr. 10746-10747.

Mardian did, however, admit the occurrence of one major incident the June 20 or 21 meeting with Liddy. He did hear Liddy's story in its entirety, and Mardian even agreed that he had subsequently been "less than honest" in his relationship with Parkinson concerning Liddy's role. Tr. 11014. He defended these actions, however, on the ground that he was convinced his conduct was compelled by the ethical canons governing the actions of a lawyer serving, as he was, as "in house" counsel to a corporate client, Parkinson being "outside" counsel hired for a limited purpose. We shall have more to say about this defense in due course.

Mardian principally contends that the District Court erred in failing to sever his trial from that of the other defendants. Under the particular circumstances presented we agree and remand for a new trial.

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I. SEVERANCE

A motion for severance, see Rule 14, Fed.R.Crim.P., 2 is addressed to the sound discretion of the trial court, and a ruling denying severance will not be reversed unless there is shown an abuse of that discretion. Opper v. United States, 348 U.S. 84, 95, 75 S.Ct. 158, 99 L.Ed. 101 (1954); United States v. Peterson, 173 U.S.App.D.C. 49, 54, 522 F.2d 661, 666 (1975); United States v. Leonard, 161 U.S.App.D.C. 36, 46, 494 F.2d 955, 965 (1974); United States v. Gambrill, 146 U.S.App.D.C. 72, 83, 449 F.2d 1148, 1159 (1971); United States v. Wilson, 140 U.S.App.D.C. 220, 226-228, 434 F.2d 494, 500-502 (1970). In applying this well established rule, however, courts have always kept in mind the problems inherent in trial of conspiracy cases involving numerous defendants. The Supreme Court has long recognized that in such cases "the liberal rules of evidence and the wide latitude accorded the prosecution may, and sometimes do, operate unfairly against an individual defendant * * *." Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 468, 86 L.Ed. 680 (1942). The "dangers of transference of guilt" are such that a court should use "every safeguard to individualize each defendant in his relation to the mass." Kotteakos v. United States, 328 U.S. 750, 774, 773, 66 S.Ct. 1239, 1252, 90 L.Ed. 1557 (1946). See Blumenthal v. United States, 332 U.S. 539, 559-560, 68 S.Ct. 248, 92 L.Ed. 154 (1948).

Particularly where there is a great disparity in the weight of the evidence, strongly establishing the guilt of some defendants, the danger persists that that guilt will improperly "rub off" on the others. United States v. Kelly, 349 F.2d 720, 756-759 (2d Cir. 1965), cert. denied, 384 U.S. 947, 86 S.Ct. 1467, 16 L.Ed.2d 544 (1966). In Kelly the Court of Appeals for the Second Circuit emphasized that severance is among the most important safeguards available to minimize the risk of prejudice, and it ordered a new separate trial for the one alleged co-conspirator who was disadvantaged by the disproportion in the evidence. Id. at 756. See United States v. Donaway, 447 F.2d 940, 943 (9th Cir. 1971). This court has often expressed its acceptance of the rule announced in Kelly, requiring severance when the evidence against one or more defendants is "far more damaging" than the evidence against the moving party. United States v. Bolden, 169 U.S.App.D.C. 60, 69, 514 F.2d 1301, 1310 (1975); United States v. Leonard, supra, 160 U.S.App.D.C. at 47, 494 F.2d at 966; United States v. Gambrill, supra, 142 U.S.App.D.C. at 83, 86, 449 F.2d at 1159, 1162; McHale v. United States, 130 U.S.App.D.C. 163, 164, 398 F.2d 757, 758, cert. denied, 393 U.S. 985, 89 S.Ct. 462, 21 L.Ed.2d 447 (1968). 3

Mardian made out a fairly strong case under the Kelly doctrine when he moved for severance before trial. JA 318-325. He pointed out that, unlike the other six original indictees, 4 he had been named only in the conspiracy count. All the others were named at least in Count 2, charging the substantive offense of obstruction of justice; four were accused as well of one or more individual counts of perjury. Count 1, charging them all with conspiracy...

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