U.S. v. Liddy

• Citation: 177 U.S. App. D.C. 1,542 F.2d 76
• Decision Date: 17 May 1976
• Docket Number: No. 74-1885,74-1885
• Parties: UNITED STATES of America v. G. Gordon LIDDY, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 76

542 F.2d 76

177 U.S.App.D.C. 1

UNITED STATES of America v. G. Gordon LIDDY, Appellant.

No. 74-1885.

United States Court of Appeals,

District of Columbia Circuit.

Argued June 18, 1976.

Decided May 17, 1976.

Peter L. Maroulis, Poughkeepsie, N. Y., for appellant.

Philip B. Heyman, Sp. Asst. to the Sp. Prosecutor, Washington, D. C., with whom Henry S. Ruth, Jr., Sp. Prosecutor, Peter M. Kreindler, Counsel to the Sp. Prosecutor, Maureen E. Gevlin and Richard D. Weinberg, Asst. Sp. Prosecutors, Washington, D. C., were on the brief for appellee. Leon Jaworski, Sp. Prosecutor, Washington, D. C., at the time the record was filed entered an appearance as Sp. Prosecutor.

Ivan Michael Schaeffer, Atty., Dept. of Justice, Washington, D. C., for United States, amicus curiae.

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

Opinion for the Court filed by District Judge MERHIGE.

MERHIGE, District Judge:

On July 12, 1974, a jury convened in the United States District Court for the District of Columbia and convicted the Appellant, George Gordon Liddy, of conspiring with co-defendants John D. Ehrlichman, Bernard Barker, and Eugenio Martinez to violate the Fourth Amendment rights of Doctor Lewis J. Fielding in contravention of Title 18, United States Code, Section 241. ¹ Sentence was imposed on the Appellant on July 31, 1974, by District Judge Gerhard A. Gesell for a term of from one to three years, ² to run concurrently with the sentence he received in United States v. Liddy, CR. No: 1827-72 (D.D.C.). The appellant seeks reversal of his conviction on the grounds that his indictment was constitutionally defective, that his right to a speedy trial under the Sixth Amendment and his right to due process under the Fifth Amendment were violated by the dismissal, over his objection, of a California prosecution arising from his participation in the break-in of Dr. Fielding's office, and that his constitutional and statutory rights were violated by the refusal of the trial court to enforce two subpoenae duces tecum. For the reasons delineated below, we reject these contentions and affirm the Appellant's conviction.

The basic facts of the case are well known, set out in some detail in the companion cases, and are partially reiterated and supplemented herein primarily for the purpose of specificity as to Appellant Liddy's involvement in the illegal conduct engaged in by the principals. On September 3, 1971, Bernard Barker, Eugenio Martinez, and Felipe de Diego, unlawfully entered the office of Doctor Lewis J. Fielding, a Beverly Hills, California, psychiatrist, and rummaged through his files in an unsuccessful effort to examine and photograph the confidential medical records of a former patient, Doctor Daniel Ellsberg. Doctor Ellsberg was largely responsible for the publication in the New York Times of several government documents concerning this country's war effort in South Vietnam ("Pentagon Papers"). ³ The break-in was intended to provide material for Dr. Ellsberg's prosecution ⁴ and to generally discredit his motives for releasing the documents. ⁵

The Appellant, George Gordon Liddy, employed by the White House, was one of the principal organizers of the scheme. Mr. Liddy was hired by Egil Krogh, a presidential aide, for what has been described as the "Room 16" unit with the approval of John D. Ehrlichman to investigate leaks of classified information. ⁶ Doctor Ellsberg was the unit's primary target. After Doctor Fielding refused to confer with Federal Bureau of Investigation agents about Doctor Ellsberg's psychiatric history, the unit recommended that a surreptitious entry be undertaken to gain access to Doctor Fielding's files. Mr. Ehrlichman approved the entry, and the proposal was put into effect. ⁷ The Appellant did not dispute during the trial his participation in the plan to enter and search Doctor Fielding's office. ⁸ The evidence produced at trial indicates that not only was he actively involved in the planning process of the break-in, but that on August 25, 1971, he gained entry to Doctor Fielding's office by misrepresenting his identity to a charwoman for the purpose of taking reconnaissance photographs. Additionally, he purchased supplies for the operation, and maintained a look-out position in the vicinity of Doctor Fielding's office during the actual unauthorized entry.

On September 4, 1973, Mr. Liddy was indicted by the State of California and charged with violating California law for his participation in the break-in. Approximately five months later, on March 11, 1974, at the request of Mr. Leon Jaworski, Special Prosecutor of the Watergate Special Prosecution Force, and over the objection of the defendant Liddy, the California prosecution was dismissed. On March 7, 1974, Appellant Liddy had been indicted by a federal grand jury charging him with the offense of which he now stands convicted. Trial on this charge, presided over by Judge Gesell, commenced before a jury on June 26, 1974. By pretrial motion to dismiss in the trial court, the Appellant argued that his Sixth Amendment right to a speedy trial and his Fifth Amendment right to due process had been violated by collusive action between the California State Prosecutor and the Watergate Special Prosecution Force. The trial judge denied the motion by Memorandum Order on May 21, 1974, and the Appellant claims error in that regard. Appellant does not suggest that the period of less than three months between his indictment and trial in this case violated the constitutional requirements and speedy trial standards set out by the Supreme Court. E. g., Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972); United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). Rather, he argues that the California prosecution and the federal prosecution are coterminous because both prosecutions were directed by the federal authorities, and accordingly, that the extended period of time between his California indictment and his trial in federal court violated his Sixth Amendment right to a speedy trial. Furthermore, the Appellant protests that the loss of the California forum deprived him of the benefit of the California Rules of Evidence that require the corroboration of accomplice testimony, a rule not present in federal law.

Mr. Liddy's contention is premised upon the proposition that the California prosecution was a "sham and a cover for a federal prosecution." Bartkus v. Illinois, 359 U.S. 121, 124, 79 S.Ct. 676, 678, 3 L.Ed.2d 684 (1959). Successive prosecution in state and federal courts have long been held constitutionally permissible. E. g., Abbate v. United States, 359 U.S. 187, 79 S.Ct. 666, 3 L.Ed.2d 729 (1959); United States v. Lanza, 260 U.S. 377, 43 S.Ct. 141, 67 L.Ed. 314 (1922). In Bartkus, the Supreme Court alluded to the fact that a state prosecution subsequent to an unsuccessful federal prosecution may, under appropriate circumstances, be held to violate the Double Jeopardy Clause of the Fifth Amendment, if the state prosecution is, "merely a tool of the federal authorities." Bartkus v. Illinois, supra, 359 U.S. 121, 123, 79 S.Ct. 676, 678 (1959). Bartkus, as we view it, stands for the proposition that federal authorities are proscribed from manipulating state processes to accomplish that which they cannot constitutionally do themselves. To hold otherwise would, of course, result in a mockery of the dual sovereignty concept that underlies our system of criminal justice. See Abbate v. United States, supra, 359 U.S. 187, 194-95, 79 S.Ct. 666 (1959). As Appellant correctly urges, federal authorities cannot be allowed to circumvent the speedy trial requirements of the Sixth Amendment by manipulating the state criminal processes before the initiation of federal prosecutorial proceedings. The burden, however, of establishing that federal officials are controlling or manipulating the state processes is substantial; the Appellant must demonstrate that the state officials had little or no independent volition in the state proceedings.

As held by Judge Gesell, the evidence presented does not sustain such a proposition. Prior to the linking of the White House to the illegal entry, the Federal Government had decided to defer to the state criminal processes of California for any criminal action brought against the Appellant. The evidence does not support the contention that the California prosecution was begun at the direction of the Justice Department or the Special Watergate Prosecution Force. When White House supervision of the entry was discovered, the Special Prosecutor appropriately changed his position and sought to bring the Appellant and his alleged co-conspirators to trial in federal court. Federal indictments were properly procured, and Special Prosecutor Jaworski, concerned with the problems inherent in parallel prosecutions, recommended that the state officials move to dismiss the California prosecution. His recommendation was heeded; the California District Attorney moved to dismiss the California action, and the presiding state judge granted the motion. The federal case against the Appellant then proceeded without further hinderance. Cooperation between state and federal law enforcement officials can hardly be faulted on a case of the public importance, enormity and complexity of the instant one. The evidence was devoid of any indication that California state officials were "tools" of the Special Prosecutor and, accordingly, we reject the contention that the California prosecution was conterminous with the federal prosecution.

The Appellant also moved pretrial to dismiss the indictment on the ground that he was charged with a violation of an inapplicable statute, and later asserted, in the alternative, that he had the right to be charged with an applicable lesser included offense. Judge Gesell denied the pretrial motion by...