U.S. v. Haldeman

Decision Date08 December 1976
Docket NumberNos. 75-1381,75-1382,75-1384 and 76-1441,s. 75-1381
Citation181 U.S.App.D.C. 254,559 F.2d 31
Parties, 1 Fed. R. Evid. Serv. 1203 UNITED STATES of America v. Harry R. HALDEMAN, Appellant. UNITED STATES of America v. John D. EHRLICHMAN, Appellant. UNITED STATES of America v. John N. MITCHELL, Appellant. UNITED STATES of America v. Harry R. HALDEMAN and John D. Ehrlichman, Appellants. District of Columbia Circuit
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia (D.C. Criminal No. 74-110).

John J. Wilson, Washington, D. C., with whom Frank H. Strickler, Ross O'Donoghue, and George A. Fisher (at the time the case was argued), Washington, D. C., were on the brief, for appellant in No. 75-1381. Messrs. Strickler and O'Donoghue were on the brief for appellant Haldeman in No. 76-1441.

William Snow Frates, Miami, Fla., with whom Andrew C. Hall, Miami, Fla., was on the brief, for appellant in No. 75-1382. Messrs. Frates and Hall were on the brief for appellant Ehrlichman in No. 76-1441.

William G. Hundley, Washington, D. C., with whom Plato Cacheris, Robert S. Erdahl, and Cary Mark Feldman, Washington, D. C., were on the brief, for appellant in No. 75-1384.

Peter M. Kreindler, Washington, D. C., Counsel to the Sp. Prosecutor, with whom Henry S. Ruth, Jr., Sp. Prosecutor at the time the brief was filed, Peter F. Rient, Kenneth S. Geller, Maureen E. Gevlin, Jay B. Stephens, and Judith A. Denny, Asst. Special Prosecutors, and Sidney M. Glazer, Atty., Department of Justice, Washington, D. C., were on the brief, for appellee in Nos. 75-1381, 75-1382, and 75-1384. Charles F. C. Ruff, Sp. Prosecutor, and Peter M. Kreindler, and Paul Hoeber, Sp. Assts. to the Sp. Prosecutor, Washington, D. C., were on the brief, for appellee in No. 76-1441.

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

Opinion for the court per curiam.

Page 51

Dissenting opinion filed by MacKINNON, Circuit Judge.


On March 1, 1974 a grand jury in Washington, D. C. returned a 13-count indictment against seven individuals. It charged what amounted to an unprecedented scandal at the highest levels of government, for most of the defendants had held major positions in the Nixon administration. Charged were John N. Mitchell, former Attorney General of the United States and later head of the Committee to Re-elect the President (CRP), President Nixon's campaign organization for the 1972 election; Harry R. Haldeman, former Assistant to the President, serving basically as chief of the White House staff; John D. Ehrlichman, once Assistant for Domestic Affairs to the President; Charles W. Colson, former Special Counsel to the President; Robert C. Mardian, earlier an Assistant Attorney General, then an official of CRP; Kenneth W. Parkinson, hired in June of 1972 as CRP's lawyer; and Gordon Strachan, once a staff assistant to Haldeman at the White House. 2 The counts of the indictment embraced conspiracy, 18 U.S.C. § 371 (1970), obstruction of justice, id. § 1503, and various instances of false statements made to the Federal Bureau of Investigation (FBI), id. § 1001, to the grand jury, id. § 1623, and to the Senate Select Committee on Presidential Campaign Activities, id. § 1621. 3 J.A. 65-112.

Five defendants ultimately went to trial together before Judge Sirica; prior to trial the charges against Colson had been dropped after his guilty plea in another case, and the case against Strachan was severed with the Government's consent due to legal problems stemming from prior grants of use immunity. 4 The jury acquitted Parkinson, found Mardian guilty of conspiracy, the only offense with which he was charged, and convicted Mitchell, Haldeman, and Ehrlichman of both conspiracy and obstruction of justice as well as all the individual perjury counts submitted. 5 Sentences of imprisonment were imposed, 6 and those convicted have appealed. We deal in the instant appeals only with the convictions

Page 52

of Haldeman, Ehrlichman, and Mitchell. 7 We affirm.


Evidence at trial 8 consisted of both direct testimony and actual tape recordings of key conversations of the co-conspirators. It established a wide-ranging conspiracy designed to impede a grand jury investigation into the break-in at the Democratic National Committee (DNC) headquarters in the Watergate Office Building in Washington, D.C., and into other related matters.

A. The Gemstone Plan

In the early morning hours of June 17, 1972, roughly four and a half months before the presidential election, police discovered five men inside the DNC offices carrying electronic equipment, cameras, and large sums of cash. These were no ordinary burglars. They were operating as part of a larger CRP intelligence gathering plan code-named Gemstone, and they had been in the DNC offices once before, in late May. Their mission this time was to fix a defective bugging device placed during the prior entry on the telephone of the DNC chairman; these orders had come after high officials at CRP expressed dissatisfaction with the information theretofore produced by the expensive Gemstone. 9 Tr. 2649, 4143-4147, 4519-4521.

Gemstone was the brainchild of G. Gordon Liddy, CRP's general counsel, who had been hired in late 1971 with the expectation that he would develop plans for gathering political intelligence and for countering demonstrations. Tr. 2625-2628, 4507. That expectation was abundantly fulfilled. Collaborating with E. Howard Hunt, Jr., a former CIA agent whom Liddy knew well from previous ventures undertaken at White House behest, 10 Liddy went to work on his assignment. In two meetings held during January and February 1972 he presented his initial Gemstone plan and budget to Mitchell, at that time Attorney General but even then the functional head of the Nixon re-election effort. These meetings were attended by Jeb Stuart Magruder, Deputy Director of CRP and later an important Government witness, and John W. Dean, III, counsel to the President and eventually the Government's prime witness at trial. 11 At these first meetings Liddy failed to win approval. Mitchell indicating that the original million-dollar budget had to be scaled down. 12 Tr. 2628-2634, 4507-4513. By March 30, however, Liddy had pared his budget to $250,000, and Mitchell had resigned his duties as Attorney General to become head of CRP in title as well as function. On that date, in Key

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Biscayne, Florida, Magruder obtained Mitchell's approval for Gemstone in a meeting attended only by Mitchell, Magruder, and Fred LaRue, a close personal friend to Mitchell then serving as a top campaign aide. 13 Tr. 3276-3277, 4514-4517, 4638-4639.

Magruder, who had once served on Haldeman's staff, was keeping the White House informed of campaign developments, including Gemstone plans and operations, by regularly transmitting documents and information on to Strachan, Haldeman's assistant. Tr. 4511-4513, 4518, 6612-6613. Haldeman himself had learned directly about an early version of the Liddy plan when Dean reported to him shortly after the February meeting. Tr. 2635-2636.

B. The Early Stages of the Conspiracy

The five burglars arrested inside the DNC gave aliases to the D.C. police, but within hours of the break-in Liddy, who had been monitoring the operation from a safe vantage point in a nearby building, reported the capture to CRP's highest officials, then in California. He told them that one of the captured burglars was James McCord, on CRP's payroll as chief of security. In an apparent effort to avoid the appearance of any link between CRP and the burglars, Mitchell, Mardian, LaRue, and Magruder met and decided to contact the new Attorney General, Richard Kleindienst, urging him to have McCord released from jail before the police penetrated his alias. Mardian placed the call, but ultimately sent Liddy to find the Attorney General when Kleindienst could not be reached directly. Tr. 4530-4536, 6563-6565. This fitful effort foundered, however, on Kleindienst's insistence that the burglars receive no special treatment. If Mitchell wanted to talk to him about it, Kleindienst said, Mitchell should contact him directly. Tr. 5898-5909.

Aware that McCord's true identity would come to light. Mardian, Magruder, and LaRue the next day worked on a press release that would deny any CRP tie to the break-in. Tr. 4537-4540, 6565-6569. It suggested instead that McCord might have been working for clients of his private security firm. Haldeman, contacted by long-distance telephone, approved the statement and urged that the release issue as soon as possible, even though Magruder had already informed him that the break-in was "Liddy's operation." Tr. 4542-4544. The release appeared on June 18 under Mitchell's name and with his approval. J.A. 912.

Meanwhile, in Washington, White House and CRP files were being cleansed of sensitive materials relating to Gemstone. Strachan performed this function at the White House, under orders from Haldeman to remove anything embarrassing. Among the items destroyed were DNC wiretap reports and a memorandum from Haldeman to Magruder urging that the intelligence operation shift from Senator Muskie to Senator McGovern, the emerging Democratic front-runner. Tr. 2651-2653, 4547-4548. Magruder immediately ordered removal of all Gemstone materials from the files at CRP; he took them to his home upon his return from California on June 19. At a meeting that night, attended by Mitchell, Magruder, LaRue, Dean, and possibly Mardian, 14 Magruder asked Mitchell what to do with the papers. Mitchell suggested that he "have a fire," and he did destroying the Gemstone documents in his home fireplace. Tr. 4540-4550, 4823, 6570-6573.

Dean met with Liddy on June 19 and...

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