UNITED STATES оf America v. Bernard L. BARKER, Appellant. UNITED STATES of America v. Eugenio R. MARTINEZ, Appellant.
Nos. 74-1883, 74-1884.
United States Court of Appeals, District of Columbia Circuit.
Argued 18 June 1975. Decided 17 May 1976.
546 F.2d 940
Daniel E. Schultz, Washington, D. C. (appointed by this Court), for appellants Barker and Martinez.
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
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.
PER CURIAM:
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
I. FACTS
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 agеnt for the CIA after Castro came to power in Cuba. Although Barker‘s formal
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; Hunt‘s instructions and actions were in complete accord with what their previous experience had taught them to expect. They were trained agents, accustomed to rely on the discretion of their superiors and to operate entirely on a “need-to-know” basis.
On 2 September 1971 Hunt and Liddy met Barker, Martinez, and deDiego at a hotel in Beverly Hills, California. Hunt informed the defendants that they were to enter an office, search for a particular file, photograph it, and replace it. The following day the group met again. Hunt showed Barker and Martinez identification papers and disguises he had obtained from the CIA. That evening the defendants entered Dr. Fielding‘s office. Contrary to plan, it was necessary for them to use force to effect the break-in. As instructed in this event, the defendants spilled pills on the floor to make it appear the break-in had been a search for drugs. No file with the name Ellsberg was found.
The next day Barker and Martinez returned to Miami. The only funds they received from Hunt in connection with the entry of Dr. Fielding‘s office were reimbursement for their living expenses, the costs of travel, and $100.00 for lost income.
On 7 March 1974 the defendants were indicted under
On 12 July 1974 the jury returned verdicts of guilty against both Barker and Martinez.
II. LEGAL ISSUES
The court‘s determination at the outset that a mistake of law could not excuse defendants’ conduct led to two important legal errors which require reversal of the Barker and Martinez convictions.
First, the defendants were prevented during the trial from offering complete evidence as to the reasonableness of their belief in Hunt‘s authority to engage them in the Fielding operation.4
Second, at the end of the trial, the District Court rejected the defendants’ proposed instructions setting forth their theory of the case.5 The jury was advised that to convict they need find only that the purpose of the break-in was to enter and search Dr. Fielding‘s office without a warrant or his permission, and for governmental rather than purely private purposes; a mistake as
Barker and Martinez raise two arguments to sustain their position that they lacked the mens rea required for a conviction under section 241. The first is that their reasonable reliance on Hunt‘s authority—their “mistake of fact mixed with law“—negated the element of intent which is common to most serious criminal offenses, including conspiracy. It is this claim which requires reversal. Had the law as it stood in 1971 been correctly appraised by the trial judge, a more ample scope of proof and different jury instructions would have been granted appellants, all as discussed in Part IV, infra. The second argument is based upon the particular element of “specific intent” contained in section 241. While the court‘s opinion in Ehrlichman analyzes this second argument in detail,7 a summary here may be helpful to distinguish the two arguments.
III. THE “SPECIFIC INTENT” REQUIREMENT OF 18 U.S.C. § 241
It is settled law that a conviction under this section requires proof that the offender acted with a “specific intent” to interfere with the federal rights in question.8 This does not mean that he must have acted with the subjective awareness that his action was unlawful. It is enough that he intentionally performed acts which, under the circumstances of the case, would have been clearly in violation of federal law, absent any other defense.
In the instant case, the District Court instructed the jury that a conviction was appropriate under section 241 if they found that the defendants conspired to enter and search Dr. Fielding‘s office, for governmental rather than personal reasons, without a warrant and without Dr. Fielding‘s permission. Barker and Martinez argue, however, citing United States v. Guest,9 that the сourt erred in failing to advise the jury that a conviction was only possible if they further found that an unauthorized search of Dr. Fielding‘s office was the predominant, as opposed to incidental, purpose of the conspiracy. They conclude that such a test could not be met here, since their primary objective was the inspection of Ellsberg‘s records, not the burglary of Dr. Fielding‘s office.
Admittedly, the Supreme Court‘s brief discussion in Guest of the “specific intent” requirement is susceptible of the interpretation the defendants would place upon it. The Court did use the words “predominant purpose” to characterize the kind of intent to interfere with the right of interstate travel which could trigger the application
A single conspiracy may have several purposes but if one of them—whether primary or secondary—be the violation of federal law, the conspiracy is unlawful under federal law.12
Moreover, the Court emphasized, there was no requirement under section 241 that the defendants have entertained the purpose of changing the outcome of the federal election. It was enough that they intended to cast false votes for candidates for federal office and thereby dilute the voting power of their fellow citizens.13
Thus, under Anderson, even if the defendants had as their primary objective the photographing of Daniel Ellsberg‘s medical file, so long as one of the purposes of the entry was to search Dr. Fielding‘s office without a warrant or his consent, the “specific intent” requirements of section 241 were met. Like that of Ehrlichman, the appeal of Barker and Martinez on this ground alone would falter.
IV. THE DEFENSE OF GOOD FAITH, REASONABLE RELIANCE ON APPARENT AUTHORITY
A.
The primary ground upon which defendants Barker and Martinez rest their appeal is the refusal of the District Court to allow them a defense based upon their good faith, reasonable reliance on Hunt‘s apparent authority. They characterize this defense as a mistake of fact “couрled with” a mistake of law which negated the mens rea required for a violation of section 241. “The mistake of fact was the belief that Hunt was a duly authorized government agent; the mistake of law was that Hunt possessed the legal prerequisites to conduct a search—either probable cause or a warrant.”14
It is a fundamental tenet of criminal law that an honest mistake of fact negatives criminal intent, when a defendant‘s acts would be lawful if the facts were as he supposed them to be.15 A mistake of law, on the other hand, generally will not excuse the commission of an offense.16 A defendant‘s error as to his authority to engage in particular activity, if based upon a mistaken view of legal requirements (or ignorance thereof), is a mistake of law. Typically, the fact that he relied upon the
Thus at first blush the trial judge‘s rejection of the defense proffered by the defendants—both in his pre-trial order and in his instruction to the jury—seems legally sound. He advised the jury that if the defendants honestly believed a valid warrant had been obtained, this would constitute a mistake of fact which would render them innocent of a conspiracy to conduct a search in violation of the Fourth Amendment. If, in contrast, they simply believed, despite the absence of a warrant, that for reasons of national security or superior authority the break-in was legal, such a mistake of law would not excuse their acts.18
B.
With all due deference to the trial judge, I must conclude that both charges were in fact incorrect, and that this error must be faced by the court on this appeal. The technical difficulty with the first instruction points up the deeper problem with the second.
A governmental search and seizure is not rendered lawful under the Fourth Amendment by the simple fact that a warrant has been obtained. The search is constitutionally proper only if the accompanying warrant is based upon legally sufficient probable cause. A factual mistake as to whether a warrant has been obtained, therefore, would not necessarily excuse an unlawful search—because that search would not necessarily have been legal under the facts as the defendant believed them to be. As the District Court instructed the jury, only a mistake as to whether a valid warrant has bеen obtained would excuse the defendant‘s action, and that is a mistake of law. That the recipient of the warrant may have relied upon the opinion of a judge in determining that he had legally adequate probable cause to make a search does not, under traditional analysis, alter the situation. His mistake remains one of law, and, under a strict construction of the rule, will not excuse his unlawful act.
It is readily apparent that few courts would countenance an instruction to a jury—even assuming a criminal prosecution were brought against government agents in such a situation19—which advised that since the mistake in acting on an invalid warrant was one of law, it would not excuse the agent‘s unlawful search. It is neither fair nor practical to hold such officials to a standard of care exceeding that exercised by a judge. Moreover, although the basic policy behind the mistake of law doctrine is that, at their peril, all men should know and obey the law,20 in certain situations there is an overriding societal interest in having individuals rely on the authoritative pronouncements of officials whose decisions we wish to see respected.21
For this reason, a number of exceptions to the mistake of law doctrine have developed where its application would be peculiarly unjust or counterproductive.22 Their recognition in a particular case should give the defendant a defense similar to one based upon mistake of fact, I submit, with one important difference. His mistake should avail him only if it is objectively
Other situations in which a government official enlists the aid of a private citizen to help him perform a governmental task are not so obviously reasonable on their face.26 If the official does not order the citizen to assist him, but simply asks for such assistance, the citizen is not under a legal compulsion to comply.27 Also, if the circumstances do not require immediate action, the citizen may have time to question the lawfulness of the planned endeavor. Nevertheless, the public policy of encouraging citizens to respond ungrudgingly to the request of officials for help in the performance of their duties remains quite strong. Moreover, the gap (both real and perceived) between a private citizen and a government official with regard to their ability and authority to judge the lawfulness of a par-
C.
This brings us to the District Court‘s second instruction to the jury. Although the defendants characterized their mistake as to Hunt‘s authority as one of fact, rather than law,28 they requested an instruction which substantially coincides with my view of the proper test:
[I]f you find that a defendant believed he was acting out of a good faith reliance upon the apparent authority of another to authorize his actions, that is a defense to the charge in Count 1, provided you find that such a mistake by a defendant was made honestly, sincerely, innocently and was a reasonable mistake to make based upon the facts as that defendant perceived them.29
The District Court refused this instruction, regardless whether denominated a mistake of fact or an exception to the doctrine of mistake of law, and advised the jury simply that a mistake as to the legality of an unlawful search was no excuse.30
It is clear from the above discussion of the search innocently conducted under an invalid warrant that the court‘s instruction did not state the law, and that a mistake as to the legality of an unlawful search may sometimes be an excuse. The trial judge can justify such an instruction in this context only if there is no legal possibility of equating the reliance of Barker and Martinez on Hunt‘s apparent authority with the reliance of a police officer on a judicial warrant subsequently held invalid. And this will be true if and only if Barker and Martinez could not show both (1) facts justifying their reasonable reliance on Hunt‘s apparent authority and (2) a legal theory on which to base a reasonable belief that Hunt possessed such authority.
Barker and Martinez meet the test as to facts. There was abundant evidence in the case from which the jury could have found that the defendants honestly and reasonably believed they were engaged in a top-secret national security operation lawfully authorized by a government intelligence agency. They were enlisted for the break-in by a White House official, E. Howard Hunt, whom they knew as a long-time government agent with the CIA. They were told that the operation concerned national security involving “a traitor to this country who was passing . . . classified information to the Soviet Embassy.” Further, their long experience with the CIA had taught the defendants the importance of complete reliance on, and obedience to, their supervisor. That they should be expected to operate on a “need-to-know” basis was neither unusual nor cause for inquiry.
Barker and Martinez likewise meet the test as to the legal theory on which Hunt could have possessed such authority. That the President had the authority to confer upon a group of aides in the White House “more authority than the FBI or CIA,” was in 1971 and is now by no means inconceivable as a matter of law. I certainly do not assert that the President here actually did so act (see the court‘s opinion in Ehrlichman), nor do we in this case need to decide the question of Executive authority to conduct warrantless searches pertaining to foreign agents, which issue was left open by the Supreme Court in United States v. United States District Court (Keith).31
That the President would have such power under the Constitution is and has always been the clear position of the Executive Branch. Significantly, the present Attorney General only recently commented on Keith to this effect: “In United States v. United States District Court, while holding that the warrant requirement of the Fourth Amendment applied in the domestic security field, the Court expressly stated that ‘the instant case requires no judgment with respect to the activities of foreign powers, within or without this country.’ (Emphasis the Attorney General‘s.) It is not without significance that the words of the Court focus on the subject matter of the surveillance, rather than on the physical location where it is conducted.”33 No court has yet ruled that the President lacks this prerogative in a case involving wiretapping of foreign agents or collaborators with a foreign power.34
In the instant case, the Department of Justice, while supporting the Special Prosecutor on other issues, within the limits of a 300-word Memorandum, took the pains to state:
In regard to warrantless searches related to foreign espionage or intelligence, the Department does not believe there is a constitutional difference between searches conducted by wiretapping and those involving physical entries into private premises. One form of search is no less serious than another. It is and has long been the Department‘s view that warrantless searches involving physical entries into private premises are justified under the proper circumstances when related to foreign espionage or intelligence (See U.S. Brief p. 45, n. 39).35
Finally, on 19 February 1976, the Attorney General announced his decision, on the recommendation of the Deputy Attorney
The trial court rejected the pleas of appellants Barker and Martinez that they should have been allowed a defense on proof of reasonable, though mistaken, belief that their actions were duly authorized by an organization “at the White House level . . . above the FBI and the CIA.” Either the Attorney General was wrong on 19 February 1976 when he declined prosecution of Director Helms, or the trial judge here was wrong when he barred the evidence and jury instruction which might have acquitted Barker and Martinez. I believe, as set forth in the previous nineteen pages, that the trial judge was wrong and the Attorney General right. But even if I am in error on this, of one thing I am certain: In 1971 there was not in the United States of America one Fourth Amendment for Richard Helms and another for Bernard Barker and Eugenio Martinez.
As to the reasonableness of the legal theory on which Barker‘s and Martinez‘s actions rest, they thus have at least the posi-
Since the issue here is not the correctness of the legal theory, but the reasonableness in 1971 of acting consonant with it, and since the Department of Justice addressed the issue to this court in only one paragraph, a brief reply to Judge Leventhal may suffice: (1) a physical trespass is usually necessary to install a wiretap, whether the tap is authorized by the Judiciary or the Executive; (2) such physical trespasses have repeatedly been authorized by judges, Presidents, and Attorneys General; (3) they will continue to be so authorized until the Supreme Court rules otherwise; (4) what is the constitutional difference between a physical entry (Presidentially authorized) for the purpose of an auditory search (wiretap) and a physical entry (Presidentially authorized) for the purpose of a visual search (photographing documents)? What is the constitutionally relevant distinction between surreptitiously listening to (or recording) a citizen‘s spoken words and looking at (or photographing) his written words? (5) If there is no difference, then when the Supreme Court reserved the question of wiretapping (auditory searches) in Keith, did it not also logically and necessarily reserve the same issue in regard to visual searches?
We all know that physical entry for the purpose of auditory search has been authorized by President and Attorney General
That auditory and visual searches and physical entry to effect them stand on the same footing, is what the Department of Justice memorandum maintained. It also stated that both are vаlid in the strictly limited espionage and intelligence area. After Katz41 in 1967 ruled out completely the patently untenable distinction between trespassory and non-trespassory wiretaps and held that the application of the Fourth Amendment could not turn on the presence or absence of a physical intrusion, it would appear arguable that physical entry for either an auditory or visual search for material related to an agent or collaborator with a foreign nation, if authorized by the President or Attorney General, would be valid under the Executive‘s constitutional foreign affairs powers.
This court need not pass and does not pass on the correctness of the Attorney General‘s position. I do think that defendants Barker and Martinez were entitled to act in objective good faith on the facts known to them in regard to Hunt‘s position and implicitly on the validity of a legal theory, still to be disproved, which has been vigorously espoused by President and Attorney General for the last forty years. I think it plain that a citizen should have a legal defense to a criminal charge arising out of an unlawful arrest or search which he has aided in the reasonable belief that the individual who solicited his assistance was a duly authorized officer of the law. It was error for the trial court to bar this defense in the admission of evidence and instructions to the jury, and the convictions must accordingly be
Reversed.
MERHIGE, District Judge:
While I generally concur with the positions taken by my Brothers with respect to the “specific intent” requirement of
Defendants Barker and Martinez rest their appeal on the district court‘s refusal to instruct the jury that a “good faith reliance upon the apparent authority of another to authorize [their] actions” is a defense to the charge of conspiracy under
Exceptions to the rule, however, have developed in situations where its policy foundations have failed to apply with strength, and alternative policy consideration strongly favor a different result. The exceptions have been both statutory, e. g., Act of August 22, 1940, § 49,
The Model Penal Code states the defense as follows:
A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: . . . (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense. § 2.04(3)(b).
See also Proposed New Federal Criminal Code, Final Report of a National Commission on Reform of Federal Criminal Laws § 610 (1971). The rationale of the section is well illustrated by the case of United States v. Mancuso, 139 F.2d 90 (3d Cir. 1943). The legal issue therein was whether a defendant could be punished for failure to obey an order made by a local draft board when its issuing of such an order to the defendant was interdicted by a judicial decree which was itself, erroneous and subject to reversal. The court in that case stated:
We think the defendant cannot be convicted for failing to obey an order, issuance of which is forbidden by the court‘s injunction. While it is true that men are, in general, held responsible for violations of the law, whether they know it or not, we do not think the layman participating in a lawsuit is required to know more than the judge. 139 F.2d at 92. (Footnote omitted)
The introduction of an “official” source for an individual‘s reliance on a mistaken concept of the law in acting “illegally” significantly diminishes the strength of the policy foundations supporting the general rule on mistake of law, and adds policy considerations of grave import that would favor an apposite result. In my view, the defense is available if, and only if, an individual (1) reasonably, on the basis of an objective standard, (2) relies on a (3) conclusion or statement of law (4) issued by an official charged with interpretation, administration, and/or enforcement responsibilities in the relevant legal field. The first three issues are of course of a factual nature that may be submitted to a jury; the fourth is a question of law as it deals with interpretations of the parameters of legal authority.
Exoneration of an individual reasonably relying on an official‘s statement of the law would not serve to encourage public ignorance of law, for the defense requires that the individual either seek out or be cognizant of the official statement upon which he or she relies. Some knowledge of the law, verified by an independent and typically competent source, is required. Furthermore, pleas of ignorance of the law will neither be so universal nor so abnormally
Furthermore, the defense advances the policy of fostering obedience to the decisions of certain individuals and groups of individuals that society has put in positions of prominence in the governing structure—i. e., courts, executive officials and legislative bodies. While the policy is unquestionably strongest when applied to those bodies that apply or make law with the most apparent finality, i. e., legislatures and the courts, it has application as well to those in official positions that “interpret” the law in a largely advisory capacity, i. e., opinions of the United States Attorney General. The reasonableness of the reliance may dissipate if one depends on unenforceable advisory opinions of minor officials however. The policy is limited by the actual existence of an appropriate “official(s)” and does not support an abrogation of the policies behind the general mistake of law rule if an individual places his or her reliance, though reasonable, in a stranger to public office erroneously believing him to be an official.2 Similarly, the defense does not extend to reliance on individuals, who although employed in a public capacity, have no interpretative or administrative responsibilities in the area associated with the legal concepts involved in the mistaken opinion or decision.
The defense has been most commonly accepted when an individual acts in reliance on a statute later held to be unconstitutional,3 or on an express decision of unconstitutionality of a statute by a competent court of general jurisdiction that is subsequently overruled.4 Most jurisdictions will not permit a defense based on reliance upon the advice of counsel.5 The defense, however, is not limited to those which have been most commonly accepted as I have heretofore made reference. It has been extended to cases of reliance on official advisory opinions. In State v. Davis, 63 Wisc.2d 75, 216 N.W.2d 31 (1974), the defendant was exonerated on the basis of a reliance on erroneous advice of a county corporation counsel and assistant district attorney. In People v. Ferguson, 134 Cal. 41, 24 P.2d 965 (1933), reliance on the advice of the state corporation commissioner and deputy commissioners was held to excuse a violation of the state‘s blue sky laws. See also Texas Co. v. State., 31 Ariz. 485, 254 P. 1060 (1927); State v. White, 237 Mo. 208, 140 S.W. 896 (1911); State v. Pearson, 97 N.C. 434, 1 S.E. 914 (1887). But see U. S. v. Mansavage, 178 F.2d 812 (7th Cir. 1949); Hopkins v. State, 193 Md. 489, 69 A.2d 456 (1949); Staley v. State, 89 Neb. 701, 131 N.W. 1028 (1911); State v. Foster, 22 R.I. 163, 46 A. 833 (1900).
Arguments against extending the defense to reliance on the advice of government officials take a form of the following proposition: Minor government officials will have the ability to effectively “immunize” individuals from prosecution. In response, it must be noted that with respect to a particular statement, a government official is himself culpable if he knowingly mistakes the law. Hence he may proffer mistaken advice without retribution only until he dis-
Still some will have cause to be concerned about the extent of the exception to the general rule. Judge Leventhal notes that “[t]he potentially broad range of illegal activities that a government official might request a private citizen to do, would make it impossible to rely on the educational value that normally inheres when a mistake of law is recognized as an excuse in one case that serves to define them all for similarly circumstanced defenders in the future.” The argument is one of great appeal. Nevertheless, it smacks of a distrust of public officials yet to so categorize it may be unfair. In essence, it asserts that since there exists a large number of public officials who may well be asked to advise or decide on a myriad of legal problems, that many mistaken judgments may be advanced, and members of the public should be required before acting in accordance therewith to examine those interpretations at their peril. The argument, assuming as I do that it is not directed at corrupt officials, requires the individual citizen to be more cognizant of and have a better understanding of the law than a public official who is responsible for and specifically employed to make interpretations of the law in the relevant legal field. Such a burden is, in my view, unreasonable. Finally, it should be noted that the strength of the arguments premised upon the potential extent of the defense is mitigated by the requirement of objective reasonableness. If a public official‘s opinion of the law is fairly outrageous, the jury may conclude that a reasonable man would take appropriate steps to verify it prior to reliance thereon.
Applying the defense to the facts of this case, the record discloses sufficient evidence of reliance on an official interpretation of the law for the matter to have been submitted to the jury. Barker and Martinez assert that they relied on Hunt‘s authority as delegated from an intelligence superstructure controlled by the White House, and firmly believed that they were acting in a legal capacity. The Executive Branch of the United States Government is vested with substantive responsibilities in the field of national security, and decisions of its officials on the extent of their legal authority deserve some deference from the public.6 A jury may well find that John Ehrlichman, then Assistant to the President for Domestic Affairs, expressed or implied that the break-in of Dr. Fielding‘s office was legal under a national security rationale, and that Hunt, as an executive official in a go-between capacity, passed the position on to the defendants, which they, acting as reasonable men, relied upon in performing the break-in.7
Accordingly, while I concur with Judge Wilkey that the jury should have been instructed on a limited mistake of law defense, I believe any such instruction should, in the event of a retrial be couched consistent with the views herein expressed.
LEVENTHAL, Circuit Judge (dissenting):
This opinion considers the appeals of Bernard L. Barker and Eugenio R. Martinez,
Barker and Martinez present considerations and issues that differ in some respects from those discussed in the opinions issued today in the cases of Ehrlichman and Liddy. I would reach the same result, of affirmance. Whatever equities may pertain to the case of these defendants of Cuban origin, who claim that their actions reflect their patriotism, were taken into account when the trial judge limited their sentence to a modest probation. Their quest for complete exculpation does not entitle them, in my view, to a ruling that the trial judge was mistaken as to the pertinent principles of law.1
My opinion explaining why I dissent from the reversals contemplated by Judges Wilkey and Merhige, is cast in the conventional form of opinions that present first a statement of facts, then an orderly discussion of the legal principles more or less seriatim. This case also calls, I think, for an opening exclamation of puzzlement and wonder. Is this judicial novelty, a bold injection of mistake of law as a valid defense to criminal liability, really being wrought in a case where defendants are charged with combining to violate civil and constitutional rights? Can this extension be justified where there was a deliberate forcible entry, indeed a burglary, into the office of a doctor who was in no way suspected of any illegality or even impropriety, with the force compounded by subterfuge, dark of night, and the derring-do of “salting” the office with nuggets to create suspicion that the deed was done by addicts looking for narcotics?
Judge Wilkey begins to cast his spell by describing Barker and Martinez as “footsoldiers” here in court again. Of course, they are here this time for an offense that took place the year before the notorious 1972 Watergate entry that led them to enter pleas of guilty to burglary. Every violation of civil rights depends not only on those who initiate, often unhappily with an official orientation of sorts, but also on those whose active effort is necessary to bring the project to fruition. To the extent appellants are deemed worthy of sympathy, that has been provided by the probation. To give them not only sympathy but exoneration, and absolution, is to stand the law upside down, in my view, and to sack legal principle instead of relying on the elements of humane administration that are available to buffer any grinding edge of law. That this tolerance of unlawful official action is a defense available for selective undermining of civil rights laws leads me to shake my head both in wonder and despair.
I. FACTUAL BACKGROUND
Barker and Martinez are both American citizens.2 They fled Cuba for Miami, Florida, after Fidel Castro came to power. Both Barker and Martinez have been covert agents for the Central Intelligence Agency. Martinez worked for the CIA from 1959 until 1972, and was involved in infiltrating Cuba and supplying arms and ammunition to Cuba from a United States base. Barker
Hunt, along with Egil Krogh, David Young and G. Gordon Liddy, composed the White House “Room 16” Unit. The unit was established under the supervision of John Ehrlichman, then Assistant to the President for Domestic Affairs, to investigate and stop leaks of classified information. Publication of the “Pentagon Papers” was the catalyst for the Room 16 unit‘s formation, and obtaining information on the source of that famous leak—Daniel Ellsberg—became the unit‘s primary concern. After Ellsberg‘s psychiatrist, Dr. Fielding, refused to be interviewed by FBI agents, the unit decided to obtain copies of Ellsberg‘s medical records by a surreptitious entry of Dr. Fielding‘s office.
To avoid White House employee involvement in the actual search, Hunt recruited Barker, and through Barker, Martinez and Felipe De Diego.3 Barker testified (Tr. 2197ff) that Hunt said he was in an “organization that had been created in the White House level—this organization he described as a sort of superstructure that was above the FBI and the CIA” and “had been formed because the FBI was tied by Supreme Court decisions . . . and the Central Intelligence Agency didn‘t have jurisdiction in certain matters.” He spoke of “some kind of upheaval in the intelligence community in Washington” and asked if Barker would like to become operational again, which Barker termed a “very happy thing to us.”
While conducting these negotiations, Hunt represented himself accurately as working in the White House.4 We may assume for present purposes that a jury might reasonably find that Barker and Martinez did, as they later put it, believe or assume that Hunt was a “CIA man” in the White House, notwithstanding contrary indications.5 Martinez was aware that his participation in the plan might have been illegal for a “normal citizen.” (Tr. 2170).
On September 2, 1971, Hunt and Liddy met Barker, Martinez and De Diego at a hotel in Beverly Hills, California. Hunt informed the defendants that they were to enter Dr. Fielding‘s office and photograph the files of one of his patients. They were told that Dr. Fielding was not himself the subject of investigation. There was no discussion of authorization for the entry and search. The group met the following day, and Hunt showed Barker and Martinez identification papers and disguises obtained from the CIA.
On the evening of September 3, Barker and De Diego, dressed as delivery men, delivered a valise containing photographic
As a defense to the March 7, 1974, indictment for conspiring to violate Dr. Fielding‘s
II. AFFIRMATIVE DEFENSES
The defendants’ principal argument on appeal is the claimed error of the District Court in refusing them a defense based upon their good faith reliance on Hunt‘s apparent authority. They say the mens rea required for a violation of section 241 was negatived by a mistake of fact “coupled with” a mistake of law.8 They amplify: “The mistake of fact was the belief that Hunt was a duly authorized agent; the mistake of law was that Hunt possessed the legal prerequisites to conduct a search—either probable cause or a warrant.”9 In the alternative, they contend that Hunt‘s inducement estops the government from prosecuting under entrapment principles. I turn to the entrapment question first.
A. Entrapment
The defense of entrapment, developed as a construction of legislative intent, has been evolved for the case of an otherwise innocent person who has been induced to commit a crime by a law enforcement agent whose purpose was prosecution. Recognition of the defense works as an estoppel on the government, preventing it from reaping the benefits of the prosecution and conviction it sought to obtain by unconscionable means.10
The entrapment rationale is wholly inapplicable to this case. In recruiting Barker and Martinez, Hunt was not acting as a law enforcement official seeking to induce their participation in order to have them prosecuted and punished. He instead sought their aid for other governmental ends which his unit judged best served by illegitimate invasion of the rights of others. The true entrapment defense seeks to prevent government officials from realizing benefits from unlawful inducement, and thereby to deter official illegality. Extension of the defense to reach Hunt‘s inducement of Barker would serve to reinforce the illegal conduct of the government agent, who could then delegate the “dirty work” to private citizens shielded from responsibility by the defense that they had been recruited by a government agent.11
B. The Claim of Mistake of Fact
It is settled doctrine that an honest mistake of fact generally negatives criminal intent, when a defendant‘s acts would be lawful if the facts were as he supposed them to be.12 This is considered a matter of essential fairness.13 Even had the facts been as Barker and Martinez claim now to have supposed them, however, their Fielding break-in would still have contravened the clear requirements of the
Classifying mistakes as either of fact or of law is not always an unambiguous task.14 At trial, defendants offered an instruction that rather elusively muddled the two types of mistakes, and sent them in an incorrect context as to the “specific intent” required for the crime.15 The brief before this court attempts to correct that prior lack of clarity
For purposes of this appeal it can be assumed that Barker and Martinez undertook the Fielding break-in while believing that the ultimate “target” was a foreign security risk for the United States. The defendants do not simply claim that they were factually mistaken about the purpose of their mission, however; they also urge that their error in believing that Hunt was a “duly authorized” agent was a factual error. Although defendants claim to maintain a distinction between mistake of fact and mistake of law, this contention entirely erodes the distinction. Defendants did not claim, or offer to prove a belief, that the President or Attorney General personally authorized the break-in; nor did they seek to advance any other specific factual basis for the belief that Hunt was “duly authorized.” They certainly did not offer to prove that they believed John Ehrlichman “expressed or implied that the break-in of Dr. Fielding‘s office was legal under a national security rationale.” (Merhige, concurring at — of 178 U.S.App.D.C., at 957 of 546 F.2d). They did not seek outside advice about the factual requirements necessary for such an undertaking. The appellants do not claim they mistakenly believed they were acting under a warrant. Nor do they claim any other representation of fact, express or implied, or mistake of fact.
Martinez says he believed that Hunt was still employed by the CIA. He has apparently put himself in a no-lose position on this point, for when his CIA case officer replied to his inquiry that Hunt was not then employed by CIA, he assumed this answer was a ruse or cover. But this mistake of fact—whether reasonable or not—was irrelevant, for even if Hunt had then been employed by CIA, his employment would not have validated the break-in and search.
At bottom, the defendants’ “mistake” was to rely on Hunt‘s White House and CIA connections as legally validating any activities undertaken in the name of national security. They had been told that the matter was something that could not be handled by the FBI because of court decisions or by the CIA because of its limited jurisdiction. Martinez conceded in testimony that he was aware that the operation might have been illegal for a “normal citizen” (Tr. 2170). Barker and Martinez did not consider themselves “normal” because of their putative status as CIA-White House operatives. Their mistake as to who or what the law authorized or required cannot be repackaged as a mistake of “fact” that Hunt had been duly authorized.
It can be assumed for present purposes that defendants mistakenly believed they were entering Dr. Fielding‘s office in order to get information on some other person who was a “traitor.” However, their actions taken pursuant to that mistaken belief did not conform with the law‘s requirements. The fundamental right to be free from warrantless physical searches has been clear since Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886)16 recog-
On the separate issue of whether physical searches can properly be included in a foreign security exception to the warrant requirement, the Special Prosecutor says No, while the Attorney General has filed a short memorandum saying Yes, if specifically authorized by the President or the Attorney General.20 The fact that defendants do not assert a belief that the President or Attorney General authorized their violation of Dr. Fielding‘s fundamental right to be free of warrantless government forays into his office takes this case outside the mistake of fact defense, for whatever defendants’ other beliefs as to the facts, they would not, if true, establish exculpation.
In an earlier case involving these same defendants, and roughly the same defense as that advanced here, Judge Wilkey rejected the argument that “an error as to the legality of a particular activity, even if based upon the assurances of a governmental official” can be treated as a mistake of fact. He recognized the importance of the issue, for a mistake of fact defense would justify conduct whenever the mistake was honest whether reasonable or not, while the mistake of law defense, if held applicable, justifies conduct only if the mistake is reasonable. United States v. Barker, (dissent) 168 U.S.App.D.C. 312, 514 F.2d 208, 264-68 & n. 76 (1975). I subsequently consider whether the mistake of law defense should be expanded to reach this case. But certainly this should not be done behind the screen that what is involved is a mistake of fact. Defendants cannot avoid the limitations that have historically shaped exculpation because of legal mistake, by characterizing as factual error their belief that a generalized aura of executive branch authorization warranted their nighttime intrusion.
C. Mistake of Law—Generally
Viewed as a mistake of law, the defense raised by defendants requires us to confront a fundamental tension in our criminal law. The criminal law relies in general on the concept of culpability or blameworthiness as a prerequisite to guilt, expressed as a requirement of mens rea.21 The Supreme
defines the requirements of culpability so that “neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense unless the definition of the offense or the Code so provides.”24
The general principle that rejects the defense of ignorance of the requirements of the criminal law, or of mistake as to those requirements, is not a casual or happenstance feature of our legal landscape. It formed a part of English and canon law for centuries and all the time with recognition that it diverged from an approach of subjective blameworthiness.25 Its continuing vitality stems from preserving a community balance, put by Holmes as a recognition that “justice to the individual is rightly outweighed by the larger interests on the other side of the scales.”26 Great minds like Holmes and Austin have struggled with the tension between individual injustice and society‘s need and have concluded that recognition of the mistake of law defense would encourage ignorance rather than a determination to know the law, and would interfere with the enforcement of law, be-
In some aspect the doctrine may be viewed as a doctrine of negligence, holding individuals to minimal conditions of responsibility and making acting without legal knowledge blameworthy for the failure to obtain that knowledge.28 Hall suggests in addition that the rationale can be expressed in terms of ethical policy—that the criminal law represents certain moral principles and that to recognize ignorance or mistake of law as a defense would contradict those values.29 Still, it must in the last analysis be recognized that at its core, the basic mistake of law doctrine imposes liability even though defendant acted in good faith and made a “reasonable” mistake. Otherwise, criminal statutes would be in suspense on any point not authoritatively settled.30 In a particular case adherence to a generally formulated rule may seem to work injustice, but the jurists pondering the general doctrine have both deemed such individual hardships outweighed by the common good, and have taken into account that certain features of the overall system of criminal
Every mature system of justice must cope with the tension between rule and discretion. Rules without exceptions may grind so harsh as to be intolerable, but exceptions and qualifications inflict a cost in administration and loss of control. The balance struck by the doctrine with which we are now concerned provides for certain rigorously limited exceptions (inapplicable to defendants’ claim) but otherwise leaves amelioration of harsh results to other parts of the system of justice. In my view, history has shaped a rule that works, and we should be slow to tinker. Consequently, defendants here must be held to a responsibility to conform their conduct to the law‘s requirements. To hold otherwise would be to ease the path of the minority of government officials who choose, without regard
D. Exceptions to the Mistake of Law Doctrine
I do not discount defendants’ claims that their background, and particularly their previous relations with the CIA32 and Hunt explain their good faith reliance on Hunt‘s apparent authority and their consequent failure to inquire about the legality of the activities they were to undertake on his request.33 I feel compassion for men who were simultaneously offenders and victims, and so did the trial judge when it came to sentencing. But testing their special circumstances against analogies they rely on to project a mistake of law defense, leads me to reject their claim to be relieved of personal accountability for their acts.
1. Claim of Good Faith Reliance on an Official‘s Authority
Appellants invoke the acceptance of good faith reliance defenses in the Model Penal Code. However, the American Law Institute carefully limited the sections cited to persons responding to a call for aid from a police officer making an unlawful arrest,34 and to obeying unlawful military orders,35 and specifically rejected the defense for other mistake of law contexts.36 In both instances, the A.L.I. recognizes limited curtailment of the doctrine excluding a mistake of law defense on the ground that the actor is under a duty to act37—to help a police officer in distress to make an arrest when called upon, or to obey military orders. In each case, society has no alternative means available to protect its interest short of imposing a duty to act withоut a correlative duty to inquire about the legality of the act.38 Punishing an individual for
There is no similar incapacity of the government to act to protect its ends when a citizen takes action when he is under no duty to do so. Thus under the Model Penal Code, a citizen who volunteers to assist another citizen, or volunteers to assist a police officer in making an unlawful arrest, cannot avail himself of the defense—available to a person responding to an officer‘s call—that he participated without making an inquiry as to whether the arrest was lawful. The volunteer is exculpated only if he believed that the arrest was lawful and believed in the “existence of facts which, if they existed, would render the arrest valid.”40 Thus, even if private citizen intervention appears socially desirable in a particular case, the citizen‘s scope of action and protection in the event of mistakes are narrow, because, overall, forceful citizen enforcement of the law is susceptible of abuse41 and mischief.
Barker and Martinez were under no tension of conflicting duties comparable to that experienced by a soldier or citizen responding to orders. They had and claim no obligation to aid Hunt. Nor did they have a belief of fact rendering their voluntary assistance lawful within § 3.07(4), supra note 33. Nor is there a compelling social interest to be served in allowing private citizens to undertake extra-legal activities, acting simply on the word of a government official. The purposes of the law in rejecting such a defense are underscored by the very kinds of extra-governmental, outside-normal-channels conduct that Barker and Martinez engaged in here. Government officials who claim to be seeking to implement the ends of government by bypassing the agencies and personnel normally responsible and accountable to the public transmit a danger signal. Barker and Martinez acted to help Hunt on his explanation that he sought their recruitment because the FBI‘s “hands were tied by Supreme Court decisions and the Central Intelligence Agency didn‘t have jurisdiction in certain matters.”42 There is reason for the law to cаrve out limited exceptions to the doctrine negating defenses rooted in mistake of law, but the pertinent reasons have minimal weight, and face countervailing policies, when they are invoked for situations that on their face are outside the basic channels of law and government—in this case, requests for surreptitious or, if necessary, forcible entry and clandestine files search. These are plainly crimes, malum in se, unless there is legal authority. Citizens may take action in such circumstances out of emotions and motives that they deem lofty, but they must take the risk that their trust was misplaced, and that they will have no absolution when there was no authority for the request and their response. If they are later to avoid the consequences of criminal responsibility, it must be as a matter of discretion. To make the defense a matter of right would enhance the resources available to individual officials bent on extra-legal government behavior. The purpose of the criminal law is to serve and not to
2. Exception for Official Misstatements of Law
Although defendants relied on the analogy to a police officer‘s request for assistance, Judge Merhige votes to reverse on the ground that appellants could claim as a defense that a citizen has a right to take action in reliance on a government official‘s assurance that such action is permissible. The Model Penal Code has addressed itself to that broad problem, and has approved a defense that is narrowly confined in order to protect social interests.43 Its provision yields no excuse for defendants’ conduct. Section 2.04(3) of the Code provides a carefully and properly drawn recognition of a defense based on reasonable reliance on a statute, judicial decision, administrative order or “an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.” Mainly directed to the mala prohibita offenses, the categories protected “involve situations where the act charged is consistent with entire law-abidiningness of the actor, where the possibility of collusion is minimal . . .”44
The section contemplates both accountability and responsible action on the part of the government official giving advice about the law. But defendants do not claim they received any advice, either express or implied, from Ehrlichman, and Hunt had only an ad hoc, undefined position in the White House.45 He had no on-line enforcement or interpretative powers or responsibilities. His undifferentiated power stemmed solely from membership in a large White House bureaucracy.46 The potential for official abuse of power would be greatly magnified if such a government official can recruit assistance from the general public, constrained neither by accountability guidelines guiding agency action under statutorily mandated powers, nor by the recruited citizen who, under the defendants’ formulation, would be under no duty to inquiry about the legality of the official‘s request.47
To stretch the official misstatement of law exception for the facts of this case is to undercut the entire rationale for its recognition as an exception. The Model Penal Code hedges in the defense to permit reliance only on an “official interpretation of the public officer . . . charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.” (emphasis added). Certainly Hunt cannot sensibly be described as having been charged by law with responsibility for interpreting or enforcing either
The “offiсial interpretation” defense thus structured is a functional analogue of the defenses of reliance on a statute, judicial decision or administrative order. It is justified by its twin underlying assumptions that the official is one to whom authority has been delegated to make pronouncements in a field of law, and that the authority can be held accountable by explicitly grounding it in the hands of an identifiable public official or agency. So grounded, the interest of both private citizens and government is served by protecting actions taken in reliance on that interpretative authority. But none of these safeguards of regularity is present in this case. A staff man or even a lower echelon official of the White House may be taken as a man of presumptive standing and even influence, but not seriously as a source of official interpretation of law, much less of such matters as the validity of a stealthy breaking and entering. Even cases postulating a national security exception for wiretaps have never suggested more than that the President or the Attorney General could have authority to evaluate and authorize an exception. No claim of Presidential or Attorney General authorization has been made in this case. The official misstatement of law defense embodies a fundamental requirement that the erroneous interpretation be made by an official in fact possessing the power to make a binding interpretation; it is wholly inapplicable to a case like this, of a claim of reliance on a government official in an area in which he has no power to interpret. And it is blatant incongruity to stretch an escape clause for mistakes of law arising in the innately public business of official interpretations of law to immunize a secret conference for planning a stealthy entry into a private home or office.
3. The Inapplicability of Other Exceptions
While a mistake of law may negative a specific element of certain crimes,48 or may be accepted where the mistake pertains to a violation of purely civil law as contrasted with the requirements of the criminal law,49 none of these carefully wrought exceptions have application to the case at bar. Defendants’ mistake of law did not pertain to some rule irrelevant to or remote from the criminal law. Nor does
This brings me to the question whether the civil rights offenses involved here are of such a character, either in terms of required intent or affirmative defense, as to make available an extension of criminal defenses to include mistake of law. I conclude, on the contrary, that this consideration reinforces the rejection of the proffered defense.
The court is dealing here with violations of civil rights. We all agree that “the law is clear that Dr. Fielding‘s
Conviction under
In essence, defendants Barker and Martinez claim that the destructive social impact wrought by their invasion of another‘s civil rights is exonerated by the law so long as an individual is acting at the request of a government official and on his implication that he has legal authority. The price to society of tolerating reliance on the very official misconduct
III. CONCLUSION
I do not propose to consider whether appellants were unreasonable in accepting a particular view of the law. In the first place, Barker and Martinez do not urge as justification that they had a specific view of the law, but rather that they are entitled to absolution because they relied on a government employee‘s credentials and his assurance, by implication, that their action was lawful. Even so, one might well raise the question as to how appellants could reasonably believe that what they were doing was
The ultimate point is that appellants’ mistake of law, whether or not it is classified as reasonable, does not negative legal responsibility, but at best provides a reason for clemency on the ground that the strict rules of law bind too tight for the overall public good. Any such clemency is not to be obtained by tinkering with the rules of responsibility but must be рrovided by those elements of the system of justice that are authorized by law to adjust for hardship and to provide amelioration. We should refuse to cut away and weaken the core standards for behavior provided by the criminal law.58 Softening the standards of conduct rather than ameliorating their application serves only to undermine the behavioral incentives the law was enacted to provide. It opens, and encourages citizens to find, paths of avoidance instead of rewarding the seeking of compliance with the law‘s requirements. The criminal law cannot “vary legal norms with the individual‘s capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility. The most that it is feasible to do with lesser
The sentence performed its proper function here. Our system is structured to provide intervention points that serve to mitigate the inequitable impact of general laws while avoiding the massive step of reformulating the law‘s requirements to meet the special facts of one hard case. Prosecutors can choose not to prosecute, for they are expected to use their “good sense . . . conscience and circumspection” to ameliorate the hardship of rules of law.60 Juries can choose not to convict if they feel conviction is unjustified, even though they are not instructed that they possess such dispensing power.61 In this case, Barker and Martinez were allowed to testify at length about the reasons motivating their involvement in the Fielding operation. This was an exercise of discretion by the judge that gave elbow room to both defendants and jury.62
In sentencing Barker and Martinez after they were convicted to only three years probation, the trial judge made a subjective evaluation of the defendants’ conduct in light of the goals of the criminal law.63 Barker and Martinez‘s patriotic motives, good intentions, and prior experience with the CIA and Hunt must all have influenced the sentence imposed.64 The trial judge
UNITED STATES of America v. Robert C. MARDIAN, Appellant, No. 75-1383.
United States Court of Appeals, District of Columbia Circuit.
Argued Jan. 6, 1976.
Decided Oct. 12, 1976.
Notes
This is not to say that I concur in the view of the Attorney General that there is a “national security” exceptiоn permitting physical intrusion in a citizen‘s home or office on specific approval of the President or Attorney General, even in the absence of a valid warrant. That issue is not before us. See United States v. Ehrlichman, 376 F.Supp. 29, 35-36 (D.D.C.1974); Barker Appendix at 104-05. The text of the proffered instruction is set out in note 15 infra.In order to establish the requisite intent the Prosecutor must show that the object of the conspiracy and the purpose of each defendant was to carry out a warrantless entry into and search of Dr. Fielding‘s office without permission.
In determining whether or not each defendant had the requisite intent, you should keep in mind that a mistake of fact may constitute a defense to the conspiracy charge but a mistake of law is not a defense.
Thus, if one of the defendants honestly believed that a valid warrant had been obtained, such a mistake of fact would render him innocent of the alleged conspiracy because it cannot be said that he intended to conduct a warrantless search.
On the other hand, if the defendant was fully aware of the relevant facts—that the search lacked both warrant and Dr. Fielding‘s permission, but erroneously believed that the search was still legal, that would constitute a mistake of law and a mistake of law is no excuse.
In other words, an individual cannot escape the criminal law simply because he sincerely but incorrectly believes that his acts are justified in the name of patriotism, or national security, or a need to create an unfavorable press image, or that his superiors had the authority without a warrant to suspend the Constitutional protections of the Fourth Amendment.
See Hall & Seligman‘s summary, supra at 643-46.(a) A private person who is summoned by a peace officer to assist in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, provided he does not believe the arrest is unlawful.
The written announcement was amplified, according to The Washington Post of 20 February 1976, pp. Al and A6, as follows:The Department of Justice will not prosecute former CIA Director Richard Helms and others for their role in a 1971 break-in at a photographic studio in Fairfax City, Virginia, Attorney General Edward H. Levi announced today.
The Department‘s investigation involved the surreptitious entry by CIA agents and Fairfax City police into a photographic studio on February 19, 1971.
The Federal statute under which prosecution was considered is Section 242 of Title 18, United States Code.
The leading case interpreting that statute, Screws v. United States, 325 U.S. 91, 104, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), requires proof that the accused willfully deprived an individual of a specific and well-defined constitutional right.
After studying the facts carefully and interrogating the witnesses at length, the Department concluded that the evidence did not meet the standard set by the Screws case to establish a criminal violation of the statute.
When § 3.07(4) does not specifically apply, § 3.09(1) withdraws any justification defense to the use of improper force where the actor‘s “error is due to ignorance or mistake as to the provisions of the Code, any other provision of the criminal law or the law governing the legality of an arrest or search.” The Commentary explained that provision as dealing with a “body of law [which] is not stated in the Code and may not appear in the form of penal law at all. It seems, clear, however, that the policy which holds mistake of penal law to be immaterial applies with no less force to the law of arrest or search.” A.L.I. Model Penal Code § 3.09(1) comment referring to § 3.04(1) comment (Tent. Draft, No. 8, 1958), at 18.Justice Department sources said that Helms clearly thought he had the authority to approve a break-in and did so to complete a security investigation.
“It was impossible to prove he (Helms) had intent to violate anyone‘s civil rights,” one Justice Department source said.
The 1947 law setting up the CIA says, “The Director of central intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.”
Under this law Justice Department attorneys said they felt Helms could reasonably argue the protection required extraordinary means.
Mr. Helms’ counsel is reported as commenting, “If the government has a right to conduct electronic surveillance, then it has a right to make surreptitious entry.” The Washington Post, 20 February 1976, at Al.
Even under circumstances of conflicting obligations, the reasonableness of a soldier‘s obedience to an unlawful order is tested against the objective standard provided by “a man of ordinary sense and understanding.” 22 U.S.C. M.A. supra, at 542-43. See also footnote 31a supra.[E]lectronic surveillance is perhaps the most objectionable of all types of searches in light of the intention of the Fourth Amendment. It is carried out against an unsuspecting individual in a dragnet fashion, taking in all of his conversations whether or not they are relevant to the purposes of the investigation and continuing over a considerable length of time. If the government‘s “reasonableness” rationale is accepted in this case, then it would apply a fortiori to other types of searches. Since they are more limited in time, place and manner, they would be even more “reasonable.” Id. at 429.