Lead Opinion
Opinion for the court
PER CURIAM:
On Mаrch 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.
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.
I. THE FACTS
Evidence at trial
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.
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,
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 La-Rue 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 frontrunner. 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,
Dean met with Liddy on June IP and received a full briefing on the background of the break-in. He then imparted his own substantial knowledge to Ehrlichman, detailing the roles of Hunt and Liddy and mentioning the pledge he had received from Liddy that Liddy would keep silent. Tr. 2648-2656. There was no similar assurance regarding Hunt; Ehrlichman consequently
It was becoming increasingly clear that the grand jury investigation would eventually tie Liddy and Hunt to the break-in scheme, primarily by tracing the currency that had been found on the burglars.
Hunt presented an additional problem. He, like Liddy, apparently knew that Gemstone was a project approved at the highest levels of CRP. Like Liddy he had participated earlier in several “seamy things” for the White House, as he once described them. Tr. 3088. For example, as members of the White House Special Investigation
Thus were born the two major parts of the conspiracy: the cover story to explain the frolicsome Liddy’s ability to draw so deeply on the CRP treasury, and the payment of hush money to those indicted and later convicted for the burglary.
C. The Cover Story
Magruder first suggested that CRP officials simply say that the $199,000 had gone to Liddy for security at the Reрublican nominating convention. He broached this story to a meeting attended by Mitchell, Mardian, LaRue, and Dean. Mardian expressed doubts that it would hold up — the sums seemed too large. Tr. 2759-2763. Thereafter Magruder tried again. He came to a subsequent meeting of the same group with the story that $100,000 was delivered to Liddy for protection of “surrogate speakers”
Magruder refined the story, reviewed it with Mitchell (who urged him to minimize Mitchell’s role in running the campaign), and then rehearsed it with Dean, all in preparation for his appearance before the grand jury on August 16. His delivery of it on that date proved sufficiently persuasive that he escaped indictment — “by the skin of his teeth,” according to Dean’s intelligence from the investigation. Tr. 2773-2776, 4605-4612. Magruder was recalled before the grand jury in September to explain the January and February meetings that were entered in his calendar, the meetings where Gemstone was first discussed. With the assistance of Mitchell and Dean, however, he had prepared a subsidiary cover story to hide the purposes of these meetings. The first, he told the grand jury, had been can-celled, and the second related solely to the new election law. Tr. 2824-2829, 4612-4616.
Mitchell and Ehrlichman, meantime, were being careful to say nothing that might ruffle the veil the cover story had cast over Gemstone activities. Each denied to FBI agents that he knew anything about the break-in except what he read in the newspapers. Tr. 2820-2824, 5393-5402. Then on September 14 Mitchell told the grand jury that he was not aware of any clandestine CRP intelligence program, nor did he know of Liddy’s illegal activities. Tr. 7094-7095. This testimony formed the basis for Mitchell’s false declarations conviction under Count 4 of the indictment. 18 U.S.C. § 1623 (1970).
D. Hush Money
On June 20 or 21 Liddy met with Mardian and LaRue. He told them the full story concerning the background of the break-in, confessed his own role in the planning and execution, and explained that all those arrested would remain silent. He went on to
With the approval of Haldeman and Ehrlichman, Dean on June 28 turned to another source. He contacted Herbert Kalmbach, a long-time Nixon fund-raiser. Tr. 2740-2742. He told Kalmbach that funds were needed to meet certain CRP commitments to the burglars, and that absolute secrecy was essential. Kalmbach agreed to take on the task. Tr. 2743-2745, 6298-6308. He obtained money from LaRue (money which came from excess cash held at the CRP offices), from the chairman of the Finance Committee to Re-elect the President, CRP’s finance arm, and from a private contributor. Tr. 6309-6312, 6326-6345. Before he approached the private contributor, however, he checked with Ehrlichman to be sure that Dean had authority to put this fund-raising in motion. Ehrlichman quieted his doubts and took the occasion to stress the need for confidentiality. If the operation did not remain secret, he warned, “they would have our heads in their laps.”
To distribute the money Kalmbach employed a courier who devised a complex scheme of leaving the funds in pay telephone booths and airport lockers. He was responsible for delivering $187,000 to the burglars through Hunt’s lawyer, Hunt’s wife, Hunt himself, and Liddy. All this took place between July 1 and mid-September, when Kalmbach made his final accounting and insisted he did not want to continue. Tr. 4213-4216, 6315-6348, 6350-6356, 6477-6511. Dean and LaRue kept Haldeman, Ehrlichman, and Mitchell posted throughout on the “money problem.” Tr. 2751-2754, 6620-6628, 6683-6684.
On September 15 the grand jury handed up indictments against the five burglars, plus Hunt and Liddy. No one else was implicated. Tr. 42214222. The initial policy of “containment,” as Dean was later to call it, had proven successful. Tr. 2855-2860, 3100.
The need to channel hush money continued nonetheless. LaRue inherited Kalmbach’s role. He delivered $20,000 or $25,000 to Hunt’s lawyer immediately, and for a while the demands abated. Tr. 2872, 2907-2908, 6662, 6684-6685. But on November 13, only a few days after Nixon’s re-election, Hunt called Colson at his White House office. With a tone of urgency he maintained that the commitments had not been met, and he reminded Colson that loyalty “is a two-way street.” Colson taped the full conversation. Tr. 4250-4254, Govt. Ex. 35B, Tape Tr. 642-658. Dean made a copy of the tape and took it to Camp David, Maryland, the presidential retreat, to play it for Haldeman and Ehrlichman. They agreed that the money was Mitchell’s responsibility and dispatched the Hunt tape to New York in the possession of Dean— Dean to play the tape for Mitchell and impress upon him his responsibility. Tr. 2909-2931.
Mitchell did not shoulder it alone. Instead he promptly inquired, through Dean, about the availability of a secret $350,000 fund under Haldeman’s control, transferred to the White House from excess CRP funds. Haldeman approved use of part of it to meet. the burglars’ demands. Tr. 2935-2941, 6687-6692, 6705-6708. Those involved initially expected that the fund would be replenished through LaRue’s fund-raising, but that hope soon vanished. It ultimately became necessary to transfer the entire fund to LaRue (all with Haldeman’s approval), and by February he had
Money was not enough to assure silence. Hunt had decided to plead guilty and wanted a guarantee that his sentence would be short. Colson, his erstwhile friend at the White House, checked with the President and then provided some veiled assurances which Hunt took to mean he would be granted clemency at Christmas 1973. Tr. 2987-2992, 4261-4270. Hunt and four of the burglars did plead guilty. Liddy and McCord insisted on going to trial, although neither took the stand. They were found guilty, and sentencing was set for March 23, 1973. Tr. 4271. When McCord began to get restless as that date approached (he threatened in a letter to the White House that “all the trees in the forest will tumble”
E. The Cover-up Unravels
The greatest apparent threat to the conspirators’ plans lay in the impending hearings of the Senate Select Committee on Presidential Campaign Activities, chaired by Senator Ervin. Dean, Haldeman, and Ehrlichman met at Rancho LaCosta in California in mid-February to plot strategy. They worried most about what the break-in defendants might say before the Committee if granted immunity. Knowing that more demands for money had been made, they decided it was essential that Mitchell meet what they all agreed was his responsibility — the providing of funds. A presidential assistant was sent to New York to tell Mitchell the results of the meeting and, once again, to remind him of his responsibility. Tr. 3032-3034.
Hunt demanded another $122,000 on March 16, in order to settle his financial affairs before sentencing. Dean relayed this word to Ehrlichman and, at his suggestion, on to Mitchell. Tr. 3086-3090. But Dean decided he had to speak with the President directly about the dangers inherent in guaranteeing the continued flow of money. On March 21, 1973 Dean thus told Nixon that there was a “cancer” growing on the presidency in the form of the endless hush money demands. He recounted all that he knew about the origin of the break-in and the subsequent payment of hush money. He guessed that future demands would come to another million dollars. Nixon replied that “you could get a million dollars. And you could get it in cash. I, I know where it could be gotten.”
Haldeman, Ehrlichman, and Dean met later that day to discuss possible strategies. They agreed that Mitchell should step forward and take the full blame, thinking the prosecutors and the Senate Committee would thereby be pacified and would press no further. Tr. 3140-3141.
Mitchell, meanwhile, was meeting his “responsibility.” Informed of the Hunt demand by LaRue, he directed LaRue to deliver $75,000 to Hunt’s attorney that night. After this delivery Hunt, according to his own testimony at trial, repeatedly perjured himself before the grand jury. Tr. 4276-4290, 6726-6732.
The next day, March 22, Mitchell came to Washington and told the others that the Hunt problem was under control. Tr. 3208-3213, 8589-8590, 10280. Nixon, Dean, Mitchell, Haldeman, and Ehrlichman then took up a discussion that had begun the day before: the best strategy for dealing with the upcoming Senate hearings. Despite the previous day’s plans, no one had the fortitude to suggest directly to Mitchell that he take the full blame and go to jail to save the Nixon presidency. Lacking that alternative, they all focused on a plan Nixon had discussed with Dean on March 17 — indeed, it had been mentioned as an option for several months. Dean would make a report to the President. It would be quite general and would indicate that no one from the White House was involved. They might deliver it to the Senate Committee, but in any event it would serve as a safeguard for Nixon. Ehrlichman explained that if “some corner of this thing comes unstuck,” the President could say he relied on the report.
The Dean report was never written, for on March 23 the conspiracy was dealt a heavy blow. McCord, facing sentencing, had written a letter to Judge Sirica breaking the word that the burglar’s silence was the result of pressure, that others were involved, and that perjury had been committed. The letter was released to the public at the sentencing hearing that day. Tr. 3253-3254, 3259-3262. Shortly thereafter Magruder, Dean, and LaRue began to talk to the prosecutors. Tr. 3277-3280, 4639-4643, 6732-6733.
Throughout the month of April 1973 Haldeman, Ehrlichman, and Nixon met frequently at the White House trying to decide how to respond to the new developments.
This scenario also dealt tentatively with the second problem — explaining the hush
When Haldeman was called before the Senate Select Committee in late July and early August 1973, he carried out the scenario laying all blame on Dean. He told the Committee that no one at the White House, except Dean, knew that the payments to the burglars were for “hush money” before March of 1973. He said Nixon discussed with Dean on March 21 the possible payment of a million dollars to the burglars, but he insisted that Nixon .had followed that up by saying “it would be wrong.”
In early May Ehrlichman told the grand jury that he had no recollection of Dean’s having told him of Liddy’s involvement in the break-in during the first weeks after the burglary. He also testified that he had spoken generally with Kalmbach about Kalmbach’s fund-raising efforts, but he denied all recollection of any mention of the purposes the money was to serve, and he claimed no memory of telling Kalmbach to keep the efforts secret. Tr. 7180-7192. For this testimony he was charged in Counts 11 and 12 with making false material declarations, 18 U.S.C. § 1623 (1970), and the jury found him guilty of both offenses.
Mitchell too, although he had not been privy to most of the April meetings where scenarios were devised, advanced the coverup through his testimony before the grand jury and the Senate Committee in the spring and summer of 1973. On April 20 he denied before the grand jury any recollection of having been told of Liddy’s confession to LaRue and Mardian. Tr. 7158, 7166-7167. Before the Senate Committee in July he claimed not to have heard of Gemstone as of June 19, 1972, and he denied that there was any mention of destroying documents at the meeting he held that evening with Magruder, Mardian, Dean, and LaRue. Tr. 7177-7180. These statements founded Counts 5 and 6 of the indictment, charging false declarations, 18 U.S.C. § 1623 (1970), and perjury, id. § 1621, respectively. Mitchell was convicted under each.
II. PRETRIAL PUBLICITY
The. unveiling of the conspiracy which is the central element of this case received extraordinarily heavy coverage in both national and local news media. In addition, the media fully covered allegations of wrongdoing at the upper levels of the Nixon Administration in matters unrelated to the Watergate break-in. Appellants contend that this pretrial publicity was so pervasive and so harmful to them that it must be assumed they could not receive a fair adjudication of the charges against them at the time and in the place at which they were tried. Alternatively, they contend that the voir dire of veniremen
A. The Motions for Continuance or Change of Venue
It is fundamental that “the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd,
It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror’s impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. * * *
Id. at 722-723,
Irvin establishes “a common-sense standard” of juror qualification. United States v. Caldwell,
The Supreme Court has reversed a conviction because it presumed that pretrial publicity had made a fair trial impossible only in the case of Rideau v. Louisiana, 373
For anyone who has ever watched television the conclusion cannot be avoided that this spectacle [the filmed confession], to the tens of thousands of people who saw and heard it, in a very real sense was Rideau’s trial — at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.
Id. at 726,
“A confession or statement against interest is the paradigm” of “facts that strongly implicate an accused * *.” Nebraska Press Ass’n v. Stuart,
The federal courts can, of course, establish more rigorous standards for their own governance than those minimum guarantees of fairness imposed on the state courts by the Constitution. See, e. g., Ristaino v. Ross,
For these reasons we hold that the District Court was correct to follow this
B. Selection of the Jury
Conduct of the voir dire is a matter left primarily to the trial judge:
Pursuant to Rule 24(a), Fed.R.Crim.P., the trial judge is vested with “broad discretion” in the conduct of voir dire —both as to the mode and manner of proceeding, * * * and as to the range of questions put to the prospective jurors * * *. The exercise of this discretion is “subject to the essential demands of fairness.” * * * But absent abuse of his broad*288 discretion, and a showing that the rights of the accused have been substantially prejudiced thereby, the trial judge’s rulings as to the scope and content of voir dire will not be disturbed on appeal.
United States v. Robinson, 154 U.S.App. D.C. 265, 269,
The voir dire in this case lasted eight days and is recorded in over 2,000 pages of transcript. The first phase was devoted to identifying veniremen who would not be able to be sequestered for the expected length of the trial. This process resulted in elimination of 170 of the 315 veniremen. The remainder were then asked general questions concerning their relationships with any of the individuals or organizations involved in the case. Eighty-five veniremen remained following those questions. After questioning two individually,
Since the answers to the court’s questions were met with appropriate follow-up questions, the individual voir dire interrogation was not uniform.
After determining the venireman’s degree of interest in and exposure to the case, the court inquired whether he had formed or expressed an opinion of the guilt or innocence of any defendant. In addition, the judge determined whether the venireman knew of Ehrlichman’s trial and conviction in the “plumbers” ease,
Appellants claim that this interrogation was inadequate. Their principal complaint
Following an objection by the Government, the District Court decided not to ask these questions. The positions of the parties and the court’s reasoning emerge clearly from the dialogue with the lawyers:
[DEFENSE COUNSEL]: But it is basic for us to know whether it is disabling or not, what they have heard, seen, about Watergate. Otherwise, I mean, every citizen in the District of Columbia we*291 would assume would come in and say, yes, they Piad] heard about it, read about it, and seen it on television.
THE COURT: If I ask them if they heard about it I am not going into specifics, what did you hear, some commentator implied somebody is guilty or innocent. They are not going to try this case on hearsay or what somebody might have said. If they haven’t got any more intelligence than that, we ought to quit now. * * * * * *
[PROSECUTOR]: * * *
We are now taking the extraordinary course in the Federal system of examining jurors individually. Regardless of what Your Honor does and how Your Honor pairs [sic] down these questions, it is still going to be remarkably liberal voir dire if you get down to eight or ten questions; but to ask a question as, what have you heard about Watergate, I could not answer that, Your Honor, myself, and I believe I have a threshold intelligence.
THE COURT: I don’t think I could, myself.
[DEFENSE COUNSEL]: * * *
We feel strongly what they read, heard, their sources, their opinions, even though it takes six months, is absolutely essential to the Defendants * * *, whether or not we can get a fair and impartial jury.
Tr. 486-489.
We agree with the District Court that the questions requested by appellants would have been unreasonable in the circumstances of this case. Appellants were not seeking to discover whether some particular piece of highly prejudicial, inadmissible information had made an impression on the members of the venire.
We also find unconvincing appellants’ attempts to identify legal support for their claimed right to ask “content” questions. Appellants rely principally on Sec
Both of tlie cases relied on by appellants refer to the ABA Standards. In Silverthorne the voir dire relating to pretrial publicity was both minimal
The extensive voir dire in the instant case, with its detailed inquiry into the sources and intensity of the veniremen’s exposure to Watergate publicity, is a far cry from the minimal questioning which took place in Silverthorne and Dellinger. Thus on their facts those cases do not suggest that the voir dire here was insufficient. Moreover, the language in Silverthorne on which appellants have seized appears to have been intended as an adoption of the ABA Standards. As we have shown, those Standards do not require that “content” questions be asked in the circumstances of this case. Rather, the Standards recognize that, as the Seventh Circuit said in Dellinger, “the court could probe the impact of pretrial publicity without requiring the veniremen to describe what they had heard.”
As the Supreme Court stated in Nebraska Press Ass’n v. Stuart,
Our conclusion that the voir dire was adequate does not end our review of the jury selection. As is our duty, we have reviewed the record to ascertain for ourselves whether appellants were tried by an unbiased jury capable of basing its verdict solely on the evidence introduced at trial.
III. EHRLICHMAN’S MOTION FOR SEVERANCE
Appellant Ehrlichman contends that his motion for severance under Rule 14, filed May 1,1974, was improperly denied. In his motion he claimed that severance was required because his co-defendants would assert defenses inconsistent with, and hostile to, his own. As he puts it, Mitchell and Haldeman asserted that their contacts with then President Nixon were lawful and proper in every respect, while “[i]n direct contrast, Appellant Ehrlichman sought to establish that his contact with Mr. Nixon was lawful, but that he had been misled by the former President.”
While there are situations in which inconsistent defenses may support a motion for severance, the doctrine is a limited one. As set forth in Rhone v. United States,
Ehrlichman’s claim that the defenses of Haldeman and Mitchell were in “direct contrast” to his assertion that he should be judged innocent because he had been misled by former President Nixon does not meet this standard. The defenses of the co-defendants were simply not at the requisite level of conflict. The jury could have accepted or rejected both. “[T]he mere presence of hostility among defendants or the desire of one to exculpate himself by inculpating another have both been held to be insufficient grounds to require separate trials.” United States v. Barber,
Ehrlichman stresses the difference between his claim and Haldeman’s concerning their meeting with CIA representatives on June 23, 1972. Each contended his purpose in attending the meeting was lawful. Haldeman had to overcome the tape recording of his earlier June 23 meeting with then President Nixon with respect to the need to use the CIA to “derail” the FBI investigation because, in Haldeman’s words, “the FBI is not under control.”
More broadly, Ehrlichman is claiming that he was prejudiced because there was strong evidence implicating his co-defendants. There are instances where severance is necessary to overcome gross disparity in the weight of the evidence which might tend to prejudice a defendant involved in a relatively “inconsequential part of the trial.”
IV. DISCOVERY BY EHRLICHMAN
Months ahead of trial, Ehrlichman and other defendants filed motions for extensive discovery. Ehrlichman’s demand included a large volume of documentary matter in the possession of the Special Prosecutor or one of his investigative arms. It also embraced additional materials, some held by the White House and others by a congressional subcommittee.
In his response to the motions the Special Prosecutor agreed to adduce a great deal of what was sought. While disclaiming responsibility for items beyond his control, he also represented that he would search for and try to obtain for the defendants all possibly exculpatory evidence in the custody of executive and congressional bodies. The District Court temporarily withheld action on the motions in order to facilitate voluntary efforts by the parties, leaving open to each defendant the opportunity to contend individually for additional discovery if dissatisfied with the outcome. The arrangement seems to have worked quite well, for the Special Prosecutor’s production was massive.
Ehrlichman, however, continued to press his motion, which the District Court eventually denied.
Our attention has not been directed to any arguably helpful information possessed by the Special Prosecutor,
Ehrlichman’s demand for the White House files fell far short of legal requirements.
(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (4) that the application is made in good faith and is not intended as a general “fishing expedition.”86
Ehrlichman’s discovery motion, aptly described by the District Court as a “sweeping and broadly phrased” endeavor to secure “a tremendous array of materials,”
Beyond these considerations, the White House files may well have an extra dimension. Ehrlichman, who is in position to know, makes no claim that the files do not reflect intercommunication and other interaction with President Nixon,
Turning now to Ehrlichman’s complaint in reference to congressional materials, we find that his discovery motion was similarly flawed. By no measure could his call for virtually everything related to the oncoming trial
V. ALLOCATION OF PEREMPTORY CHALLENGES
Fed.R.Crim.P. 24(b) provides that “[i]f the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges.” It further provides that “[i]f there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.” The defendants requested 15 additional peremptory challenges, for a total of 25. The District Judge awarded them five extra challenges to be exercised individually, one to each defendant. Together with the mandated 10 challenges, to be exercised jointly,^, this award gave the defendants a total óp( 15 challenges. The judge indicated his unwillingness to grant the request in full because of the imbalance it would create between prosecution and defense. After noting that there is no power to award the Government extra challenges unless all defendants agree to the award, the District Judge indicated that if such agreement was forthcoming he would be willing to increase both the Government’s and the defendants’ totals. When no agreement was reached, the totals remained at six and 15 respectively. J.A. 509; Tr. 698.
Appellants’ objection to the treatment of peremptory challenges is easily disposed of. In multiple defendant cases the award of additional challenges is permissive rather than mandatory, and rests in the trial judge’s sound discretion. See, e.g., United States v. Mayes,
Indeed, a proposal to amend Rule 24(b) has been approved by the Advisory Committee on Rules and Practice of the Judicial Conference of the United States, the Judicial Conference itself, and most recently by the Supreme Court,
Appellants also complain that the trial judge’s unwillingness to award more than five additional challenges unless the defendants agreed to permit the Government additional challenges punished them for exercising their “right” to foreclose the Government from obtaining more than six challenges. We think this contention is without merit. The trial judge’s responsibility is to use his discretion in a way that he thinks provides a fair balance between the parties. Apparently, he believed that a ratio of 15 to 6 was fairer than one of 10 to 6; that permitting defendants more than 15 and the Government more than six challenges would be even fairer, but required defendants’ approval; and that in the absence of such approval, a ratio of 15 to 6 was fairer than a ratio of 25 to 6. Such a judgment on his part lies well within the scope of his discretion.
Appellants also take exception to the system established for exercising the peremptory challenges, whose features they have succinctly summarized:
a. Veniremen would be placed in the box according to a pre-determined order.
b. The ten joint defense peremptories had to be exercised two at a time.
c. Challenges would alternate between the government and the defense [the government to proceed first].
d. Two failures to exercise a challenge [or pair of joint challenges] would bring about a forfeiture of that challenge or challenges.
e. The government’s final challenge would be exempt from forfeiture.
Br. for Mitchell at 116; see J.A. 520.
Appellants’ principal objection to this scheme seems to be that at the end of the jury selection process, when the defense was left with two individual challenges and the Government with one challenge, the defendants thought it more advantageous to forfeit their challenges than to exercise them and permit the Government to then exercise its challenge, thereby reaching down the predetermined list to a venireman allegedly favorable to the prosecution. Assuming arguendo that appellants’ characterization of this strategic decision is accurate, we find nothing prejudicial about their having been required to face it.
VI. CONTINUANCE FOR NIXON TESTIMONY
Ehrlichman argues on behalf of all three appellants that the trial judge erred in denying their motions for a continuance until former President Nixon was physically well enough to be deposed. We find the contention without merit.
A. Background
On September 4, 1974 Ehrlichman issued a subpoena to Mr. Nixon, returnable on September 30, the day before trial was to begin. Two weeks later the Government
At a pretrial conference held on September 24 Herbert Miller, Nixon’s lawyer, reported that his client had been hospitalized the preceding day for tests. Miller requested that the subpoenas be stayed for two weeks until the tests were completed and he had an opportunity to make any appropriate motions regarding the subpoenas. With the assent of all parties it was agreed that Miller would report to the court on Nixon’s health by October 3rd. Tr. of Sept. 24th hearing at 7-11.
Three days after the conference, Ehrlich-man moved, pursuant to Fed.R.Crim.P. 15, for authorization to depose Nixon, for a severance, and for a continuance until Nixon was well enough to be deposed and for at least two weeks thereafter to conduct the deposition. Doc. 353. In this motion Ehrlichman noted that Nixon had informed the court that he was suffering from “thrombophlebitis, and as a result requires present hospitalization and treatment.” Ehrlichman then asserted that Nixon’s condition had been “complicated by the lodging of a blood clot in [his] lung, thereby precluding travel to the District of Columbia at this time.” Reciting 30 areas in which Nixon was said to have “sole and personal knowledge ... to which he can be expected to testify,” Ehrlichman contended that “the interests of justice compel . a severance, continuance and deposition.” The Government again opposed the motion, arguing that it was still premature to conclude that Nixon would be unavailable to testify or that his deposition should be taken. Doc. 354. Ehrlichman’s motion was denied orally at the start of trial. Tr. at 3.
As agreed at the pretrial conference, on October 3rd Miller filed an affidavit reporting on Nixon’s health. Miller’s affidavit, based on a telephone conversation with Nixon’s physician, stated that the testing of Nixon had been suspended shortly after he had been admitted to the hospital because a pulmonary embolus had been discovered; that a test performed on September 30 indicated the embolus was resolving itself; and that tests were resumed on the 30th and were to be completed by October 4th, at which time Nixon would be released from the hospital. The affidavit went on to state that for 3-6 months Nixon would be receiving anticoagulant medication, and that for an indefinite period of time until his condition stabilized Nixon would be required to avoid prolonged sitting, standing, or walking and any possible trauma.
Ehrlichman replied to the motion to quash by renewing his motions for leave to depose, a severance, and a continuance, again noting and expanding on the issues on which Nixon’s testimony was needed. Doc. 396. Haldeman filed a separate motion with the same requests, and listed 34 areas as to which Haldeman needed Nixon’s testimony. Doc. 371. The Government did not respond to the appellants’ motions, but opposed Nixon’s motion to quash on the ground that the supporting affidavits failed to establish that Nixon would be unable to testify under any conditions at any time during the trial. Doc. 386. The Government argued that at most the court should appoint an independent panel of doctors to
On October 17 a hearing was held on the motion to quash.
On November 7, 1974, Nixon’s counsel filed his report. Doc. 452. It stated that nine days earlier Nixon had undergone surgery and experienced post-operative shock, hemorrhaging, and other complications. He had been on the critical list for a week, and was expected to be hospitalized for an additional ten days to two weeks. Thereafter, he would be precluded from “any activity requiring substantial mental or physical effort . . . [for] two or three months.”
On November 13, 1974 Judge Sirica appointed a panel of three physicians to “make investigation” concerning Nixon’s condition and ability to testify. Doc. 472. On November 29 the panel submitted its unanimous report, estimating that, barring further complications, Nixon would be able to travel to Washington to testify by mid-February, to testify near his home in earlier February, and, starting January 6, would be able to be deposed in no more than two well-spaced daily sessions of no more than one hour each. Doc. 511.
After receiving the medical report, all three appellants filed motions to depose Nixon and to continue the trial until that was possible. Docs. 516, 524, 525, 526. Haldeman and Ehrlichman repeated the statements from their earlier motions concerning their need for Nixon’s testimony; Mitchell listed a number of areas as to which Nixon’s testimony allegedly would be vital to Mitchell’s defense. Each appellant waived his right to a sequestered jury during the requested continuance. Docs. 524, 526, 527. Co-defendant Mardian filed a statement opposing the continuance and the suggestion to unsequester the jury, Doc. 529; co-defendant Parkinson opposed only the latter, Doc. 530. Mr. Nixon took no position other than to note that even if he were well enough to be deposed starting January 6, he would not be well enough to prepare prior to that date, and would need a “substantial” amount of time to do so. Doc. 532. The United States opposed the motions of all three appellants. Doc. 524.
In an opinion dated December 5, 1974, discussed infra, the court denied the motions.
Defendants sought a continuance here to enable them to produce an unavailable witness who, they alleged, could offer evidence favorable to the defense. Criminal defendants plainly have a substantial interest in being able to present the testimony of such witnesses to the jury. Indeed, this interest implicates constitutional values, since the Sixth Amendment right to compulsory process is “in plain terms the right to present a defense.”
From the decisions of the Supreme Court and of this and other circuit courts, at least some of the factors that should be considered by district judges in evaluating the competing interests can be readily discerned. First, the court must assess the likelihood — as it appears from defendant’s motion for a continuance, his supporting papers, and from anything else in the record — that defendant will be able to and will produce the missing evidence if the continuance were granted.
C. Application of Law to Facts
In denying the final requests for a continuance,
The District Court’s exclusive focus on the burdens of a continuance and the likely significance of Nixon’s testimony was entirely proper. Appellants were not responsible for Mr. Nixon’s absence, and thus could not be taxed for lack of diligence in seeking a continuance. And although there was no guarantee that Nixon would recover his health so as eventually to be able to testify, there was nothing in the medical reports suggesting the contrary. Thus the dispositive question before the District Court was whether the burdens of granting an indefinite continuance outweighed the likely value of Nixon’s testimony.
The District Court’s conclusion that securing Nixon’s testimony would have required a lengthy delay is abundantly supported by the record. The court relied on three factors in reaching its conclusion. First, it predicted, based on rеpresentations made to it by counsel, that all the evidence
That granting a continuance of this duration would have entailed significant risks and costs is plain. First, leaving the case in limbo might have made it difficult for the court and the parties opposing the continuance — Mardian and the Government — to carry on their normal business during the continuance. Second, because of the public attention that would have been focused on the adjourned trial (and perhaps on the jurors), and because neither the Government
The question before us, then, is whether, in light of these costs, the District Court abused its discretion in concluding that appellants had failed to show that Nixon’s testimony would be of such importance as to warrant a continuance. After carefully reviewing the proffers of all three appellants, we conclude it did not. We reach this conclusion for three reasons.
First, not only was there no assurance that Nixon’s testimony would be favorable to the defense, as the District Court observed,
Second, Nixon’s testimony on many of the topics listed in appellants’ proffers would have been cumulative of other evidence which was or could have been produced, as the District Court also noted. In several instances one or more appellants sought Nixon’s testimony regarding conversations Nixon had with persons who were neither defendants nor unindicted co-conspirators;
Third, Nixon could not have disputed the central propositions in the Government’s case, and thus his testimony would have been of marginal significance. The Government’s case against the appellants for the most part rested on evidence of their participation in discussions and decisions outside Nixon’s presence from January 1972 to March 1973 and on tape recordings of their participation in discussions and decisions within his presence starting in March 1973. Nixon could not have directly contradicted testimony that Mitchell approved the Gemstone plan, see pages 274-275 of
The limited significance of Nixon’s testimony is clearly revealed by those portions of appellants’ proffers that are specific. Because of the large number of topics listed on the proffers, we discuss only general problems with illustrative examples.
(a)In a few instances a topic listed on one of the proffers does not even appear relevant, let alone significant, to the issues involved in the trial. For example, Ehrlich-man indicated he wanted Nixon to testify that Ehrlichman had urged the President in 1972 to discontinue prosecution of Daniel Ellsberg, and that Nixon had directed Ehrlichman in April 1973 to meet with the judge presiding over the Ellsberg trial. The proffer does not indicate why such testimony would be relevant, and Ehrlich-man did not testify about these matters when he was on the witness stand.
(b) In a great number of instances Nixon’s testimony was desired to establish a point not in contention. For example, Mitchell indicated he wanted Nixon to testify that “matters discussed by Mr. Nixon with Mr. Colson” — presumably relating to clemency — and “matters discussed with Messrs. Dean, Haldeman and Ehrlichman on March 21,1973” — presumably relating to the payment of hush money — were not “conveyed by Mr. Nixon to Mr. Mitchell.” But the Government never claimed otherwise. Rather, it showed that Mitchell was made aware by Dean that veiled assurances of clemency had been given to Hunt, see Tr. 2992-2993, 2998-2999, and by Dean and La-Rue of Hunt’s March, 1973 money demands, Tr. 3086-3090, 6728-6732. That Mitchell may not have been informed of the details of Nixon’s conversations is of little consequence.
(c) In largest measure, appellants sought Nixon’s testimony to provide indirect support to their defenses. For example, Haldeman and Ehrlichman each indicated they wanted Nixon to testify that he instructed them to speak to Dean about the Nixon Estate plan in June, 1972; not to make offers of clemency or to limit the FBI investigation; not to spend time on Watergate; and to meet at LaCosta to discuss strategy regarding the Senate Watergate Committee. Again, the Government did not contend that contrary instructions had been given. But Haldeman and Ehrlich-man apparently desired this testimony in the hope that the jury would infer that they talked to Dean only about the Nixon Estate in June 1972, talked only about the Watergate Committee at LaCosta, and did not violate Nixon’s instructions regarding work on Watergate, clemency, or the FBI. The weakness of these inferences is patent.
In sum, we conclude that the District Court did not abuse its discretion in denying the requested continuance. According
VII. EVIDENCE OF THE ELLSBERG BREAK-IN AND EHRLICHMAN’S INVOLVEMENT
Both Ehrlichman and Haldeman contend that the trial court committed error in allowing the Government to introduce evidence that Ehrlichman had authorized an illegal break-in at the offices of Dr. Lewis J. Fielding, a Beverly Hills psychiatrist, for the purpose of examining the psychiatric records of one of his patients, Daniel Ells-berg, who had misused some classified defense documents.
A. The Claim of Prejudice
Objection was made to the introduction of evidence of the Ellsberg break-in on the ground that the prejudice engendered by the admission into evidence of such prior acts of criminal misconduct outweighed their legitimate probative value. Ehrliehman br. at 45-53a; Haldeman br. at 4. Rejecting this objection, the court admitted the evidence as being probative of motive. The Government now contends it was properly admitted on two grounds:
(1) to show a central motive for the conspiracy by proving the occurrence of activity the conspirators desperately wanted to conceal, and (2) to explain the background and meaning of Hunt’s threats to expose the “seamy things” he had done for the White House if his money demands were not met.
Govt. br. at 222. As Mr. James Neal, the Government prosecutor, explained to the court in arguing for the admission of the evidence in question:
MR. NEAL: Your Honor, we say the purpose of the conspiracy was to conceal those involved in the planning and implementation of the break-in as well as other matters.
Now, our contention and theory in this case — and we will put on proof this was one of the reasons for covering up — was that if they really got into this matter, if the investigation of the planning and implementation of the break-in was explored and divulged, it would lead them to the operations of Hunt and Liddy and others with respect to the Ellsberg affair.
Tr. 2298-2299.
The general rule in this country is that evidence of other crimes is admissible to show, inter alia, motive, so long as its probative value outweighs its prejudicial effect.
Appellants list four factors which, they contend, made this evidence unduly prejudicial and therefore inadmissible: (1) the “tenuous” connection between the Ellsberg affair and the Watergate cover-up;
B. Application of the Governing Principles
As regards the first source of claimed prejudice, the “tenuous” connection between the Ellsberg-Fielding break-in and the Watergate cover-up, we find evidence introduced at the instant trial which could well have allowed the jury to find a definite link between the two events. It could be concluded from the Hunt Memorandum, Tr. 7554-58, and the payment of money thereafter that concealing responsibility for the Ellsberg break-in was part of the motivation for the payment of money to those involved in Watergate.
Evidence of the Ellsberg-Fielding break-in also casts light upon the meaning of Hunt’s threat to reveal the “seamy things” he had done for the White House if he were not paid certain sums of money. This incident came about during Hunt’s conversation with co-conspirator Colson, which was
In addition, the evidence of Ehrlichman’s connection to the Ellsberg break-in was also probative on the issue of whether he had consistently urged full disclosure about Watergate as he contended.
Second, Ehrlichman asserts that the prosecution presented an “avalanche” of evidence concerning the Ellsberg operation which in effect resulted in his retrial and reconvietion on the Ellsberg charges.
Third, 'we find no impropriety in the introduction and reading of the August 11 memorandum from Krogh to Ehrlichman to the jury. Tr. 7668-7672. Given that there was evidence linking the EllsbergFielding break-in to the Watergate coverup, it was certainly appropriate to introduce the one piece of documentary evidence which clearly tied Ehrlichman, who was accused of the coVer-up,' to the California break-in. It is exactly because the memorandum “went to the very heart of the Government’s [Ellsberg break-in] case and was one of the principal instruments employed to bring about Mr. Ehrlichman’s conviction,” Ehrlichman br. at 53, that its use was so apposite. The alternative would have been the use of more speculative and less probative evidence which would undoubtedly have prejudiced appellants far more.
Finally, we reject the argument that our holding in Bailey, supra, was violated.
We therefore conclude that the probative value of the Ellsberg-Fielding break-in evidence far outweighed its prejudicial effect,
VIII. USE OF MITCHELL’S TESTIMONY BEFORE CONGRESSIONAL COMMITTEES
Appellant Mitchell contends that the trial court committed constitutional error in permitting the Special Prosecutor to use testimony given by Mitchell under subpoena to the Senate Select Committee in July, 1973 and to the House Judiciary Committee in July, 1974. Mitchell objects to the use of this testimony as a basis for the charge of perjury to the Senate Committee contained in Count 6 and in cross-examination on critical aspects of the other charges.
1. Mitchell relies principally on Miranda v. Arizona,
a. The Miranda warnings were developed in response to the compulsion believed inherent in police custodial interrogation. The Supreme Court has yet to decide whether they extend to the context of a grand jury inquiry. Four Justices in United States v. Mandujano,
c. Seeking to avoid the impact of these rulings, Mitchell argues that in both cases the Court specifically found that the confessions used for impeachment purposes were neither involuntary nor coerced,
Mitchell’s “dilemma” simply does not fit the pre-Miranda “coerced confession” rulings. Mitchell was represented by counsel throughout the proceedings. He was not subjected to any physical ordeal. The hearings were held in public. The inquiring congressmen repeatedly indicated that they would abandon any question that met with invocation of the self-incrimination privilege. The House Judiciary Committee informed Mitchell in advance that his appearance would not be required if he announced an intention to rely on the Fifth Amendment. There was absolutely no effort made to overcome Mitchell’s will and produce statements not “freely self-determined.”
2. We have met Mitchell on his home ground, pointing out that even if his Fifth Amendment rights had been violated by the Committee’s questioning it was permissible to use his non-coerced testimony in the perjury count and for impeachment purposes.
But we would not want in such an important case to leave the implication that we accept Mitchell’s claim that the Self-Incrimination Clause embodies an absolute right of silence. Appellant has mistaken what is a narrow exception, born of very special circumstances, for the general rule.
a. Mitchell was merely required to follow the usual path for asserting the privilege against self-incrimination. Generally the privilege must be claimed to be respected. The reason for this is that government acting within its proper sphere and by proper process — Mitchell does not argue that the committees were acting otherwise — has a right to everyone’s testimony, and that the Fifth Amendment privilege "addresses only a relatively narrow scope of inquiries,” which' the individual being questioned is in the best position to identify. “Unless a witness objects a government ordinarily may assume that its compulsory processes are not eliciting testimony that he deems to be incriminating. Only the witness knows whether the apparently innocent disclosure sought may incriminate him, and the burden appropriately lies with him to make timely assertion of the privilege. If, instead, he discloses the information sought, any incriminations properly are viewed as not compelled.” Garner v. United States,
This principle, often stated by the Court, and the operative principle of many decisions,
b. The general rule is subject to a few narrowly delineated exceptions where the privilege against self-incrimination need
The first category of exception is exemplified by the Miranda decision, involving situations so rife with coercion as to “deny an individual the ability freely to choose to remain silent” and where “the inquiring government is acutely aware of the potentially incriminatory nature of the disclosures sought.”
We are not called upon to anticipate whether in the review already granted the Supreme Court will affirm lower court rulings extending Miranda to the grand jury situation. These rulings are based on the premise that there is coercion in the grand jury situation, not overcome by the judicial supervision available, since the witness under subpoena obligation may not be aware that he is a potential defendant, and therefore not on alert to avoid incriminating disclosures, and he does not have a lawyer at his side during the questioning.
The purpose of the grand jury inquiry is to obtain information about criminal activities in order to determine whether to return an indictment and launch a criminal proceeding. Although the grand jury’s focus may extend beyond the particular witness, it has been found “smackpng] of entrapment” to “bait” a witness already suspected of being guilty of a precise offense into either committing perjury or offering incriminating testimony.
c. The second exception from the general rule requiring assertion of the privilege involves situations where the very invocation of the privilege is likely to result in criminal sanctions. We do not require the defendant in a criminal trial to take the stand and assert the privilege in open court, and indeed we do not permit comment on the failure to testify in one’s own defense,
Mitchell cannot claim to have been under a similar compulsion to forego assertion of the privilege. While his assertion might lead to public speculation or oрprobrium, the public would not be in a position to impose or precipitate criminal sanctions, and hence failure to assert the privilege is not justified in law.
It is only in the exceptional case that the privilege can be relied upon without claim
We find no error in the Special Prosecutor’s use of Mitchell’s testimony before the committees as the basis for the perjury count and in impeachment by contradiction of Mitchell’s assertions on the stand.
IX. HALDEMAN’S PERJURY CONVICTIONS — THE EVIDENCE AND THE INSTRUCTIONS
In addition to finding the defendant Haldeman guilty of conspiracy and obstruction of justice, the jury also found him guilty on three counts of perjury — Counts 7, 8, and 9 — in violation of 18 U.S.C. § 1621 (1970). All of these offenses were allegedly committed from July 30 to August 1, 1973, when he testified before the Senate Select Committee on Presidential Campaign Activities (the Ervin Committee). Count 7 charged Haldeman with falsely testifying that, prior to March 21, 1973, no one in the White House other than John Dean had any idea that hush money was being paid to the Watergate burglars. Count 8 alleged that Haldeman committed perjury in testifying that he had listened to a tape recording of the President’s March 21,1973, conversation with Dean and that he (Haldeman) was “absolutely positive that the tapes” recorded the President as saying, “We can [raise $1,000,000 for hush money] * * * but it would be wrong.” Count 9 alleged that perjury was committed when Haldeman told the Senate Committee that, during a March 21,1973, meeting among himself, the President, and John Dean, “I don’t believe there was any reference to [Jeb] Magruder committing perjury.”
A. Count 7: The Two-Witness Rule
Haldeman first contends that the trial court erred in not explaining the meaning of “corroboration” in connection with the “Two-Witness Rule” applicable to perjury offenses.
As to the second element, the law requires in a case such as this that the falsity of the testimony in question be proved by the sworn testimony of at least one witness, and that the testimony as to falsity given by such witness be corroborated by some other evidence in the case. In other words, a person cannot be convicted of perjury when the evidence simply consists of his oath against another’s; there must be some corroboration of the testimony against him before he can be convicted. This is one of the factors which distinguishes this perjury law from the false declaration law which forms the basis of Counts Four, Five, Eleven, and Twelve as I noted a while ago.
Accordingly, if you find, with respect to any of these perjury counts, namely,*321 Six, Seven, Eight, and Nine, that the prosecution has presented only one witness who has testified to the falsity of a Defendant’s Senate testimony, and no independent corroborating evidence of the falsity of the Defendant’s testimony, you must find the Defendant not guilty on that count.
Tr. 12390-12391.
Haldeman contends that this instruction constitutes “reversible error on count Seven” because the trial court failed to define “corroboration.” Haldeman br. at 137. His apparent point is that the court should have additionally instructed that “corroborative evidence necessary to sustain a perjury conviction is that which tends to show the perjury independently.”
* * * if you find * * * that the prosecution has presented only one witness who has testified to the falsity of a Defendant’s Senate testimony, and no independent corroborating evidence of the falsity of the Defendant’s testimony, you must find the defendant not guilty on that count.
J.A. 12391 (emphasis added). We are of opinion that this instruction was adequate and appellant’s objection to it is not well taken.
A second argument raised by Haldeman is that, even assuming an adequate instruction on corroboration, there was no “independent corroborating evidence” of the falsity of this testimony. The main proof of perjury is John Dean’s testimony that Haldeman was aware at the very outset of the conspiracy that money was being paid to the break-in defendants to keep them silent. See, e. g., Tr. 2741-2742. The “corroborating” proof of this, however, is said to be only allegations by Dean that Haldeman heard a tape recording of a conversation between E. Howard Hunt and Charles Colson in which Hunt complained that the Administration’s promises of money payments were not being fulfilled. Tr. 2909-2912, 2920-2923, 2928-2931, 4250-4254; Tape Tr. 646-647, 651.
If this were the only corroborating evidence, it would be insufficient, for it is not “independent” — it is only Dean affirming Dean. But contrary to Haldeman’s argument, there is independent evidence to support Dean’s allegations in this regard. Several of the taped conversations involving Haldeman and the President, which were heard by the jury, could reasonably be interpreted to include admissions by Haldeman of knowledge, prior to March 21, 1973, of hush money payments to the Watergate break-in defendants. For example, on April 14,1973, the President, Haldeman, and Ehrlichman discussed Dean’s June 28,1972, request that Herbert Kalmbach be asked to raise hush money:
EHRLICHMAN: As a matter of fact, I didn’t refer him [Dean] to Kalmbach. He came to me and said, “May I go to Kalmbach?”
HALDEMAN: He did the same thing to me.
PRESIDENT: Go to Kalmbach for the purpose of?
EHRLICHMAN: For the purpose of getting Herb to raise some money. For the purpose of paying the defendants. For the purpose of keeping them, quote, on the reservation, unquote.
PRESIDENT: Right. With that they could try to tie you and Bob in a conspiracy to obstruct justice.
EHRLICHMAN: That’s his theory.
Tape Tr. 456 (emphasis added). In another conversation on March 22, 1973, between Haldeman and the President, Haldeman essentially admitted approving transfer of $350,000 from a fund under his control for use to pay off the Watergate break-in de
Therefore, we reject both the challenge to the instructions and the challenge to the evidence - under Count 7, and affirm Haldeman’s conviction on this count.
B. Count 8
The next attack on the instructions by Haldeman relates to his conviction on Count 8 — the “but it would be wrong” count. This charge arises from the false statement to the Senate Select Committee that, on March 21, 1973, during a meeting among Haldeman, the President, and John Dean, the President discussed the possibility of raising hush money but concluded by saying “we can do that but it would be wrong.” Indictment, Count 8, ¶ 4, J.A. 141-143. Haldeman complains that the jury was not instructed on the theory of his defense to this charge, although appropriate requests were made. Specifically, he asserts in his brief that the
Jury Was Not Told that Defendant Haldeman Challenged the Accuracy of the Alleged Perjurious Senate Testimony Which Formed the Basis for Count Eight on the Ground that He Did Not Quote President Nixon but Rather Paraphrased His Statements
Defendant Haldeman testified at trial that he was not quoting President Nixon to this effect but was only paraphrasing*323 the former Chief Executive. Claiming a variance from the Indictment, defendant Haldeman submitted a proposed instruction that would have advised the jury of this theory of defense (J.A. 711) but the court rejected this request without explanation (J.A. 776).
Haldeman br. at 137.
The requested instruction, which he now asserts he was entitled to because it would have presented the theory of his defense, would have instructed the jury:
If you find that Mr. Haldeman did not purport to quote former President Nixon at the date, time and place alleged in Count Eight, then you should find Mr. Haldeman not guilty of the offense charged in Count Eight. Otherwise, you should apply to Count Eight the instructions on perjury which I have heretofore given you.
J.A. 711.
[A]s I will mention again in a minute, Mr. Haldeman is contesting the accuracy of his testimony as it set forth in Count Eight of the indictment. Let me now remind you that even though there are some stipulations, you must decide for yourselves whether the first element has been proved beyond a reasonable doubt.
Tr. 12390 (emphasis added).
* * jf: sfc #
The jury must note that the Defendant, Mr. Haldeman, has challenged the accuracy of the testimony alleged in Count Eight of the indictment to be false. So on this count of the indictment, the jury must also determine whether the Defendant testified before the Senate Committee as alleged in Count Eight.
Thus, in each of these counts the Government must prove beyond a reasonable doubt the falsity of the alleged perjurious testimony.
Tr. 12391-12392 (emphasis added).
While these instructions were not worded exactly as Haldeman requested, they did fairly present to the jury the fact that he was challenging the accuracy of his alleged perjurious Senate testimony as alleged in Count 8. In fact, that point was twice stated. We see no error in the instructions on this matter.
Haldeman also challenges the evidence on Count 8, arguing that “a fair and liberal construction of the March 21 tape, as explained by the defendant, finds the statements true, and surely they were believed to be true”
Senator Baker. Did you hear it with your own voice?
Mr. Haldeman. With my own ears, yes.
C. The Interruption in Count 8
Haldeman next asserts that the court erred in failing to grant his requested instruction with respect to the effect of an alleged interruption in his testimony.
As is indicated by the transcript of Haldeman’s testimony before the Senate Committee, the following colloquy occurred with Senator Baker:
Senator Baker. What I want to point out to you is that one sentence in your addendum . . . the third from the last sentence on page 2, “The President said there is no problem in raising a million dollars. We can do that but it would be wrong.” Now, how sure are you, Mr. Haldeman, that those tapes, in fact say that?
Mr. Haldeman. I am absolutely positive that the tapes—
Senator Baker. Did you heard it with your own voice?
Mr. Haldeman. With my own ears, yes.195
Haldeman points to what appears to be an interruption by Senator Baker of the reply to the Senator’s first question. At trial, Haldeman “testified that his answer was incomplete and that if he had been allowed to do so he would have enlarged upon his answer to avoid what on the face of the record [he now contends] appears to be a misinterpretation of his statement (Tr. 8676).” Haldeman br. at 138. To assist in making this point to the jury, Haldeman proffered the following proposed instruction:
You may not convict a defendant of perjury merely because his testimony was factually incorrect, or if he gave incorrect testimony because of surprise, confusion, haste, inadvertence, an honest mistake as to the facts, carelessness, negligence, or if an incorrect impression was created because the defendant was interrupted whiie making his statement.
J.A. 712 (emphasis added). He now claims error because this instruction was denied.
The court, however, did give the following instruction:
A Defendant may not be found guilty of perjury simply because he gives testimony which is factually incorrect. He may have given incorrect testimony because of surprise, confusion, inadvertence, honest mistake of facts, carelessness or negligence. Also, if a Defendant believed a statement to be true when he made it, you must find that Defendant not guilty, even if it so happens that the statement was, in fact, false.
This instruction covers all the principal points of the requested instruction, except it omits the italicized words, i. e., a defendant may not be found guilty of perjury “if an incorrect impression was created because the defendant was interrupted while making his statement.” We do not find error in the refusal to so instruct the jury.
We likewise find no error in the denial of the following instruction suggested by Haldeman:
The essence of the crime of perjury is that the challenged sworn testimony must be false and that the witness believes it to be false. No one may be convicted of perjury where he gives an answer that is literally accurate or is reasonably susceptible of more than one interpretation, one of which is truthful. Nor is it a criminal act for a witness to willfully state any material matter that implies any material matter that he does not believe to be true.
Bronston, however, dealt with an answer that was undisputably true, which is not the case here. The appellant’s statement to the Committee under Count 8 in this case was untrue (though responsive) unless the jury accepted his explanation. Bronston cannot be read to shield from prosecution answers or statements which are arguably true under some defense theory, for such a holding would all but void the federal perjury statute. Therefore, we hold that the instruction which was given
D. Count 9
This count charges Haldeman with perjury in testifying before the Senate Committee that he did not believe there had been any reference during a March 21,1973, meeting to Magruder’s having committed perjury.
The Government’s evidence at trial included tape recordings of conversations among President Nixon, appellants Ehrlich-man and Haldeman, and other conspirators. The bulk of the conversations occurred in the Oval Office or the Executive Office Building, while others took place over the telephone. Appellants object to the introduction of the recordings on three grounds, each of which we find to be without merit.
A. Admissibility under the Omnibus Act
Under Title II of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. § 2510 et seq. (1970), interceptions of oral or wire communications may not be introduced in evidence except under specified circumstances, one of which is that one of the parties to the conversation consented to the interception. Id. § 2511(2)(c), (d). Appellants contend that the District Judge made no finding of consent, or, alternatively, that there was not an adequate basis for such a finding.
The transcript reveals some confusion in the hearing on the consent issue. There was only one genuine issue to be decided at that hearing — whether the interceptions that were effected by recording the conversations in question were consented to by Mr. Nixon, a party to them. However, the trial judge appears to have believed there was a second issue — whether the overall supervision of the recording equipment by the Secret Service, and specifically the custody of the completed recordings, was itself an interception. Many of the judge’s comments, including his statement that the statute was not intended to apply “to the situation we have in this case,” Tr. 5841, appear to relate to this second issue.
As to the first issue — the only genuine interception involved — the record cannot be considered crystal clear. Yet on reviewing it in its entirety, we are persuaded that the District Judge did find Mr. Nixon to have consented to the interceptions by directing the installation of the recording equipment. The District Judge stated that “[t]hese are completed conversations that were ordered according to the testimony and it can be inferred I think by the President through Mr. Higby.” Tr. 5826. That view was immediately reiterated: “[the tapes] were made at the direction of the President.” Tr. 5827. This finding of presidential consent is reflected in the statement that the Secret Service employees could be “construed as agents of the President,” Tr. 5839, and in yet another suggestion that the President “consented to [the interception] by directing somebody to give the word to Mr. Higby, who gave the word to somebody else,” Tr. 5840. Certainly, a greater measure of clarity and precision in formulating the finding would not have been amiss in view of its importance. Nonetheless, we believe the complete record reveals that the District Judge based his decision to admit the tape recordings on an unmistakably implicit finding that President Nixon directed the installation of the
Although appellants urge that such a finding is not supported by the evidence, we believe there is no merit to this contention. Findings of District Judges are not to be set aside unless clearly erroneous. Fed.R.Civ.P. 52(a). This rule is fully applicable to transcribed oral findings, and its scope extends even to inferences drawn from undisputed facts. Case v. Morrisette,
The record before the trial judge provided a more than adequate basis for inferring that President Nixon directed the installation of the recording system. Alexander Butterfield, a Deputy Assistant to the President, testified that Lawrence Higby, the principal aide to Mr. Haldeman, the President’s Chief of Staff, told him to arrange for the Secret Service to install recording equipment in the President’s Oval Office. Tr. 5521, 5524-5526. Butterfield then told the head of the Secret Service’s Technical Security Division at the White House that the President wanted a tape recording system installed.
Finally, even if it were thought that additional evidentiary support were needed to sustain the District Judge’s ruling, such support exists. For, in the course of the hearing on the consent issue, the Government read into the record testimony given by Mr. Haldeman in a hearing in the District Court on November 8, 1973, regarding the I8V2 minute gap that appeared on one of the recordings.
Question: Now, would you explain the circumstances of the installation of the equipment, how it came about and with whom you discussed the matter?
Answer: The matter was discussed with the President initially and the equipment for the procedure was established for the purpose of providing a complete accurate record of conversations held by the President in these two offices and on the particular telephones and on some occasions in the Cabinet Room for his reference and for historical purposes. He has made a practice of meeting with individuals and groups without having staff members present, and it was felt that*330 such a record was importatn [sic] to be maintained and a procedure was set up to provide it.
Tr. 5835.
The District Judge could surely take judicial notice, in a preliminary hearing merely on the admissibility of certain evidence, that this testimony was in fact presented in a hearing at which he presided on a not unrelated matter. See Gomez v. Wilson,
Appellants argue that, even if Haldeman’s testimony were judicially noticeable, it was hearsay and hence not admissible. Although the facts that the declaration was made in a prior judicial proceeding, that the declarant is a party-defendant, and that the other defendants were co-conspirators, might bring the declaration within an exception to the hearsay rule, we need not carry out such an inquiry. For the technical rules of evidence are inapplicable to a hearing before the trial judge on the preliminary legal question of the admissibility of evidence. This view is held by the commentators, see, e. g., id. § 53, at 122-123 n.91; 5 J. Wigmore, Evidence § 1385, at 87 (Chadbourn ed. 1974), finds ample support in the case law, see Schwimmer v. United States,
B. Authenticity of the Tape Recordings
Appellants challenge the foundation for the introduction of the tape recordings. In determining whether there was a sufficient showing of accuracy to warrant admissibility, we must keep in mind the governing standard: “the possibilities of misidentification and adulteration [must] be eliminated, not absolutely, but as a matter of reasonable probability * * .” Gass v. United States,
The record included adequate proof that the tape recordings were made by elaborate electronic recording devices installed in the White House and the Executive Office Building by the Technical Services Division of the Secret Service. See Tr. 5633-5634. There is no evidence that the system did not accurately record the conversations it was designed to preserve. See Tr. 5584. Although on rare occasions a reel
When a Secret Service agent placed a tape on a machine, a box associated with the tape was marked with the date and the location of the machine. Tr. 5672-5673, 5701. After a completed reel was removed, it was placed in the box and marked with the date of removal and the location of the machine and initialed by the Secret Service agent involved.
After a subpoena duces tecum was issued for particular conversations, White House attorneys removed from the safe those reels which appeared, from the date and location markings on the boxes, to contain the specified conversations.
The Government thus accounted for every stage from the inception of the tape recording system to the introduction of the tapes into evidence. There was never any significant risk, as there would be with a fungible piece of real evidence, such as blood sample, that the tape recordings were inadvertently exchanged with other evidence of a similar type. As the stipulation reflects, any possibility of misidentifying tapes or conversations was eliminated by the notation on the boxes, the identification of the voices on the tapes, the correspondence of each conversation sought with the detailed information in the daily diaries, and the distinctiveness of the evidence itself.
If the possibility of misidentification was virtually nonexistent, the risk of tampering with the tapes was also slight. There was very little opportunity at any stage for someone to obtain access to the tapes for the purpose of tampering with them. The only persons specifically shown to have known of the existence of the taping system were four Secret Service agents and Messrs. Butterfield and Higby (and the trial judge’s finding on the consent issue indicates that Nixon and probably Haldeman must have known). Only the four agents had access to the keys to the locked cabinets in which the tapes were initially stored. Tr. 5679-5680. Access to the safe located within the room protected by an alarm system was similarly restricted.
Appellants’ attempt to establish the probability of tampering by pointing to (1) the regular access of the Secret Service to the tapes and their occasional spot checks of the completed reels, Tr. 5675, 5707, (2) the rare instances in which completed reels
We may assume arguendo that the 18V2-minute gap resulted from intentional conduct, but that does not lead to the conclusion that the conversations introduced at trial were suspect. To begin with, none of those conversations was contained on the tape having the 18V2-minute gap. Moreover, the fact that one tape was erased hardly shows that other tapes, on which no erasures were present, were not authentic. All the conversations corresponded to the detailed information contained in the President’s daily diaries. The trial judge listened to all the conversations that were admitted. In doing so, he had the opportunity to confirm the Government’s claim that there was nothing on the tapes that raised a suspicion of tampering: no long or unusual pauses, choppy dialogue or incomplete conversations.
Although it is conceivable that sophisticated redubbing could escape detection by normal listening, real evidence is not admissible because one can conjure up hypothetical possibilities that tampering occurred. Appellants, who participated in many of the conversations, have raised no challenge to the accuracy of any one of them. John Dean testified that the six conversations to which he was a party accurately reflected his recollection of the discussions.
The determination of a District Judge to admit tape recordings rests in his sound discretion. E. g., United States v. Young,
C. Admissibility of Particular Excerpts
Mitchell objects on two different grounds to the admission of a number of specified excerpts in the tape recordings.
Mitchell contends that a number of out-of-court declarations recorded on the tapes are inadmissible because they contain expressions of opinion or statements not based upon the declarants’ firsthand knowledge.
2. Alleged Inadmissibility as Hearsay Falling Outside the Co-Conspirator Exception
Mitchell next contends that numerous excerpts on the tape recordings constitute mere narratives of past events, rather than statements made in furtherance of the conspiracy, and hence fall outside the co-conspirator exception to the hearsay rule. We agree with the point that mere narratives of past events are not admissible hearsay statements. But as applied to the facts in this case, the argument is of limited value to Mitchell.
The conspiracy at issue required the coordination and control of a large number of individuals who had knowledge of the events that were being covered up. It also required the conspirators to make regular strategic decisions on how best to proceed to prevent the full story of “Watergate” from becoming known to the press, prosecutors, Congress, and the public. The tape recordings thus contain discussions of many aspects of Watergate strategy: what would happen if particular individuals were to talk, e. g., Tape Tr. 195, how much knowledge those individuals possessed, e. g., Tape Tr. 306, who was likely to volunteer or be compelled to talk, e. g., Tape Tr. 213-214, 306, 310, what individuals could be dissociated from any responsibility for reprehensible or illegal activity, e. g., Tape Tr. 147, 265-267, 303, 458-459, whether certain officials should assert executive privilege, e. g., Tape Tr. 193-194, whether public statements should be issued and what they might contain, e. g., Tape Tr. 57, whether it was feasible to raise and distribute hush money, e. g., Tape Tr. 131-132, 179, 189-191, whether promises of money or aid had been extended to particular persons, e. g., Tape Tr. 325, and so forth, see e. g., Tape Tr. 64, 72, 82, 86, 89-91, 130, 135, 311.
As the threads of the cover-up began to unravel, it became increasingly important
In a conspiracy in which consideration of alternative strategies played so central a role,
We have reviewed each of the excerpts to which Mitchell objects in context. Although most of the 39 excerpts contain statements of past facts, almost all of these statements are integral parts of the continual strategy sessions that took place in the White House concerning what to do in the future about Watergate. Only four of the excerpts strike us as possibly falling outside of the “in furtherance” requirement.
The evidence of Mitchell’s participation in the conspiracy was overwhelming. As noted in our summary of the evidence supra, Mitchell was involved in the conspiracy from its inception on June 17 and played a
[tjhere was no aspect of the obstruction in which [Mitchell] was not involved; the attempt to “spring” McCord; the false press release; the destruction of documents; the Magruder “cover story”; the attempted misuse of the CIA; the “hush money” payments; the veiled offers of clemency; and, finally, the false statements and perjurious testimony.
And his complicity in these events was irrefutably established at trial through the testimony of Dean, Magruder, LaRue, and Kalmbaeh, as well as co-defendants Haldeman and Ehrlichman.
Finally, contained on the excerpts that were properly admitted were a large number of statements by Dean, Nixon, Ehrlich-man, and Haldeman that fully implicated Mitchell in the crimes of which he was convicted.
We have considered all of Mitchell’s arguments regarding the admission of the tapes, and we believe that none of them identifies any prejudicial error.
XI. THE JURY INSTRUCTIONS
Haldeman raises many challenges to the court’s instructions to the jury, a number of which are insubstantial and will not be discussed.
A. The Specific Intent Instruction
Haldeman raises a number of arguments which he contends demonstrate that the District Court failed to give a clear and correct definition of the essential element of specific intent. His major points appear to be: (1) the court failed to emphasize specific intent as an element of each offense charged; (2) the court failed to distinguish specific intent from general intent; and (3) the placement of the specific intent instruction tended to minimize its impact. For the reasons explained below, we find no error in the judge’s charge to the jury on this subject.
First, it becomes clear upon reading the entire charge (Tr. 12356-12415) that the jury was instructed with respect to each count that they must find the presence of specific intent as a prerequisite to returning a verdict of guilty. The judge first addressed the charge of conspiracy, telling the jury that one of the essential elements of the offense is “[t]hat each Defendant knowingly participated in this conspiracy with the intent to commit the offense or the fraud which was the object of the conspiracy * * *.” Tr. 12364 (emphasis added). This is a correct statement, for the specific intent required for the crime of conspiracy is in fact the intent to advance or further the unlawful object of the conspiracy.
The Government must also prove, as part of the second element of the crime of conspiracy, that each Defendant who allegedly participated in the conspiracy charged did so with criminal intents
“Intent” means that a person had the purpose to do a thing; it means that he made an act of the will to do the thing; it means that the thing was done consciously and voluntarily and not inadvertently or accidentally.
Now, some criminal offenses require only a general intent. Where this is so and it is shown that a person has knowingly committed an act which the law makes a crime, intent may be inferred from the doing of the act. Other offenses, such as this one [conspiracy], require a specific intent. Specific intent requires more than a mere general intent to engage in certain conduct or to do certain acts. A person who knowingly does an act which the law forbids intending with bad purpose either to disobey or disregard the law, may be found to act with specific intent.
Tr. 12367-12368 (emphasis added). The court’s charge on this point was nearly a verbatim statement of the applicable D. C. Standard Jury Instruction,
The jury instructions thus clearly spelled out for the jury that specific intent was an essential element of the crime of conspiracy charged under Count 1. Haldeman, however, argues that because the definition of specific intent does not appear in the same place as the recital of the elements of the crime of conspiracy, the jury could have been confused into believing that only general intent was required to
Similarly, the instruction on Count 2, the obstruction of justice count, was clear as to the need for specific intent. The judge told the jury:
I have already instructed you on what we mean when we use the words, “specific intent,” “knowingly,” and “wilfully.” These words center on the purpose an individual has when he does something, that is, his intent, his will. Specific intent is an important element of the crime charged in Count Two. To convict any Defendant charged in Count Two, you must find, in addition to the other elements, that he had the specific intent to obstruct, impair, or impede the due administration of justice and that his endeavor was not accidental or inadvertent.
Tr. 12381 (emphasis added). The argument, raised by Haldeman,
The second group of arguments made against the court’s specific intent instruction is that it failed to distinguish specific intent from general intent.
Charging that the jury could consider “all of the circumstances” was clearly proper. Except in extraordinary circumstances, criminal intent cannot be proved by direct evidence; it is therefore not only appropriate but also necessary for the jury to look at “all of the circumstanc
As to the “natural and probable consequences” instruction, we have previously approved this instruction — with the inclusion of the phrase “knowingly done or knowingly omitted” as indicated by the D.C. Criminal Jury Instructions
The final group of arguments which Haldeman makes against the court’s specific intent instruction is his criticism of its location within the overall charge to the jury. One source of prejudice is said to be the placement of the definition of “specific intent” (quoted in text at 339 of
Appellant’s other argument on this point is similar: he contends that, immediately after explaining that specific intent requires a finding that the accused acted “knowingly,” the District Judge did an “about-face,” Haldeman br. at 123, by stating that “[i]n attempting to show that a defendant acted wilfully, it is not essential that the Government establish that the Defendant knew he was breaking some particular rule or law.” Tr. 12368. The judge’s statement was correct: a defendant does not have to be aware that he was violating a particular law, such as 18 U.S.C. § 371, so long as he had the conscious intent to do that which the law in fact forbids. See generally United States v. Feola,
The only intent involved in the crime is the intent to do the forbidden act. The defendant “must have had knowledge of the facts, though not necessarily the law, that made” his act criminal.
Again, the placement of a caveat immediately following the specific intent definition in all likelihood tended to clarify the requirements for conviction rather than to confuse the jury.
In summary, we find the specific intent instruction given by the District Court to be adequate and nonprejudicial, and we reject this alleged ground for reversal.
B. The Instruction on Membership in the Conspiracy
In instructing the jury on the standards it must follow in determining whether a particular defendant became a member of the conspiracy the court stated:
Now, this element of participation or membership must be considered and decided with specific and individual reference to the particular Defendant you are considering in the case. This must be emphasized even though conspiracy and membership in a conspiracy involves relationships between participants.
Each Defendant’s participation in the alleged conspiracy, if it is to be found, must be established by evidence of the*341 Defendant’s own words, his own actions and the general course of his conduct.
Tr. 12365 (emphasis added).
Haldeman, relying on D.C. Criminal Jury Instruction 4.92,
Given this purpose to the rule, it is clear that a defendant’s own “conduct” may
It is seldom that a major case will be tried without some deviation from the approved instructions being fully justified to more closely fit a precise situation in the interest of clarity or desired emphasis. We so view the words which were added here. The questioned portion of the instruction merely called the attention of the jury to the fact that, if they wished, they might be able to arrive at a more perceptive conclusion from the “words and acts” by viewing the “general course” indicated thereby. We see no error in the added words. They merely add an element of common sense.
C. The Scope of the Indictment
A final major objection made to the court’s instructions to the jury is that they are alleged to have described the offenses charged by Counts 1 and 2 in language that went beyond the scope of the indictment
1. The Alleged Merger of Counts 1 and 2
In the course of its instructions on the charge of obstruction of justice as set forth in Count 2,
Count Two charges, in substance, that the Defendants Messrs. Mitchell, Haldeman, Ehrlichman and Parkinson, as well as other alleged conspirators, not Defendants here or conspirators, either one, corruptly endeavored to influence, obstruct, and impede the due administration of justice. .
Tr. 12379 (emphasis added). Haldeman contends that this single reference to “conspirators” in connection with Count 2 introduced “elements of the law of conspiracy into the second count of the indictment, thereby commingling the elements of [the
2. “Misuse” of the Central Intelligence Agency (CIA): Count 1
Haldeman next contends that, since the indictment did not specifically allege that “misuse” of the CIA to interfere with the FBI’s investigation was part of the conspiracy charged in Count l,
We must disagree with Haldeman’s argument that “[n]owhere in the Indictment was any defendant in this case charged with any crime pertaining to the Central Intelligence Agency or with any crime committed, in whole or in part, by reason of alleged ‘misuse’ of the Agency.” Haldeman br. at 111. This is simply incorrect. While it is true that the indictment did not use the words “misuse of the CIA,” it is wrong to say that the conspiracy count did not allege facts that, if proved, would constitute misuse of the CIA. Count 1 (the conspiracy count) of the indictment charged that the defendants unlawfully conspired
to obstruct justice in violation of Title 18, United States Code, Section 1503 * * and to defraud the United States and Agencies and Departments thereof, to wit, the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the Department of Justice, of the Government’s right to have the officials of these Departments and Agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty, unlawful impairment and obstruction, all in violation of Title 18, United States Code, Section 371.
Count 1, ¶ 10, J.A. 115-116; and that
11. It was a part of the conspiracy that the conspirators would corruptly influence, obstruct and impede, and corruptly endeavor to influence, obstruct and impede, the due administration of justice in connection with the investigation referred to in paragraph three (3) above and in connection with the trial of Criminal Case No. 1827-72 in the United States District Court for the District of Columbia, for the purpose of concealing and causing to be concealed the identities of the persons who were responsible for, participated in, and had knowledge of (a) the activities which were the subject of the investigation and trial, and (b) other illegal and improper activities.
Count 1, ¶ 11, J.A. 116;
13. It was further a part of the conspiracy that the conspirators would, by deceit, craft, trickery and dishonest means, defraud the United States by interfering with and obstructing the lawful governmental functions of the CIA, in that the conspirators would induce the*344 CIA to provide financial assistance to persons who were subjects of the investigation referred to in paragraph (3) above, for the purposes stated in paragraph eleven (11) above.
Count 1, ¶ 13, J.A. 117;
15. * * * (g) The conspirators would attempt to obtain CIA financial assistance for persons who were subjects of the investigation * * *.
Count 1, ¶ 15, J.A. 119.
The Overt Acts also contained allegations of the attempted misuse of the CIA:
7. On or about June 24, 1972, JOHN N. MITCHELL and ROBERT C. MARDIAN met with John W. Dean, III, at 1701 Pennsylvania Avenue in the District of Columbia, at which time MITCHELL and MARDIAN suggested to Dean that the CIA be requested to provide covert funds for the assistance of the persons involved in the Watergate break-in.
8. On or about June 26, 1972, JOHN D. EHRLICHMAN met with John W. Dean, III, at the White House in the District of Columbia, at which time EHRLICHMAN approved a suggestion that Dean ask General Vernon A. Walters, Deputy Director of the CIA, whether the CIA could use covert funds to pay the bail and salaries of the persons involved in the Watergate break-in.
J.A. 120-121.
The unlawful agreement to attempt to use the CIA to interfere with the investigation of the Watergate break-in was thus fairly charged in Count 1 of the indictment as one of the means by which the defendants intended to accomplish one of the principal objects of their conspiracy — defrauding the United States of its right to have its officials and agencies transact their business honestly, impartially, and free from corruption or undue influence or obstruction. The indictment was thus sufficient to put the defendants on notice of the charges against them and to enable them to plead an acquittal or conviction in bar of future prosecution of the same offense based on the same CIA evidence. Hamling v. United States,
Therefore, the trial judge did not commit error in instructing the jury at the close of trial that
the second part of the conspiracy statute254 concerns agreements to defraud the United States or any agency of the Government. The Government charges in Count One that these Defendants also conspired to defraud the United States in three ways: First, by attempting to induce the CIA to provide financial assistance to the Watergate defendants; second, by attempting to get the CIA to interfere with the Watergate investigation being conducted by the FBI; third, by obtaining and attempting to obtain*345 information concerning the investigation from the FBI and the Department of Justice.
Tr. 12383 (emphasis added). While the conclusion that the CIA had been misused might not be the only possible one which could be drawn from the totality of the evidence, it was a permissible conclusion from all the evidence relating to that agency that the defendants did unlawfully conspire among themselves to induce the CIA to prevail upon the FBI to restrict its investigation, and to induce the CIA to furnish financial assistance to those involved in the break-in, so that, inter alia, the financing of the Watergate burglars by the Committee for the Reelection of the President, with Mitchell’s participation, would be concealed. Such acts clearly constituted part of the means designed to accomplish the alleged object of the unlawful agreement to defraud the Government, and that result was a foreseeable possibility even though its ultimate objective eventually failed. As such, the evidence in question was within the conspiracy charged and its admission, together with the instruction thereon, did not constitute an amendment of the indictment.
Nor is the propriety of this particular instruction affected by the failure of the trial judge to define the term “misuse of the CIA.” This phrase was a reasonably accurate description of the charges in the indictment involving the CIA, and of the evidence in support thereof, which showed that the defendants had attempted to use the CIA to stop the investigation of the Watergate break-in and to use CIA covert funds to assist those guilty of that break-in. The defendants were not charged with a crime of misusing the CIA; rather, the allegations of the conspiracy count accused them, inter alia, of misusing the CIA as a means of accomplishing the crime of defrauding the Government, which was clearly defined by the charge on conspiracy.
3. Misuse of the CIA: Count 2
Appellants were also convicted on Count 2 of the indictment which charges them with obstruction of justice in violation of 18 U.S.C. § 1503.
The Fifth Amendment guarantees that prosecutions for serious crime may be instituted only by indictment. In implementing this constitutional guarantee the Supreme Court has recognized that the indictment as a charging instrument has two central purposes — to apprise the accused of the charges against him so that he may adequately prepare his defense,
The indictment * * * shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. * * * It need not contain * * * any other matter not necessary to such statement. * * *
See also Stirone v. United States,
Count 2 of the indictment in question here clearly and fully serves both purposes.
Nevertheless, Haldeman complains that there was an omission from Count 2 that renders it defective. Specifically, he objects to the fact that, although misuse of the CIA was not alleged in Count 2 as one of the means by which the offense was committed, the trial court admitted evidence concerning such misuse and included in the jury instructions the statement that a guilty verdict should be returned on Count 2 if the jury found beyond a reasonable doubt that the defendants had misused the CIA to obstruct justice.
Haldeman’s complaint seems to result, however, from a general misunderstanding of the purpose of the indictment and, especially, from an inflated notion of what must be included therein. Although an indictment must — in order to fulfill constitutional requirements — apprise the defendants of the essential elements of the offense with which they are charged, neither the Constitution, the Federal Rules of Criminal Procedure, nor any other authority suggests that an indictment must put the defendants on notice as to every means by which the prosecution hopes to prove that the crime was committed. Impervious to this fact, however, it appears to be the intent of the appellants, abetted by the dissent, to ignore the present state of the law and countermand the Federal Rules of Criminal Procedure which “were designed to eliminate technicalities in criminal pleading and are to be construed to secure simplicity in procedure.” United States v. Debrow, supra,
The omission to which Haldeman objects here plainly offers no basis for reversing the Count 2 convictions. As discussed supra, the count begins by stating the elements of the offense in the language of the statute. It goes on to provide particulars of the alleged offense, including the instruments of justice obstructed and the means employed. Neither as a matter of common sense nor of legal principle could the defendants have been in any doubt as to the crime with which they were charged.
In asserting that Count 2 has omitted an essential element, it is most unclear what, if any, authority the dissent relies upon. Although Hamiing v. United States, supra, is quoted, the dissent fails to acknowledge that, in that case, the Supreme Court affirmed the defendants’ convictions which were obtained under indictments that, according to the Court, “charged them only in the statutory language of 18 U.S.C. § 1461” (which makes it a crime to mail obscene or crime-inciting matter).
the very core of criminality under 2 U.S.C. § 192 is pertinency to the subject under inquiry of the questions which the defendant refused to answer. What the subject actually was, therefore, is central to every prosecution under the statute. Where guilt depends so crucially upon*348 such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.
Rule 7(c), in fact, expressly sanctions indictments in the language to which Haldeman objects. The rule provides that “[i]t .may be alleged in a single count that the means by which the defendant committed the offense are unknown or that he committed it by one or more specified means.” Further particularization of the means encompassed in the allegations of Count 2 could have been sought by asking for a bill of particulars.
The validity of similarly worded indictments has been upheld in two recent federal cases. In United States v. Caine,
It was further a part of said scheme * * * that the said advertising, as the defendants well knew, would contain false, fraudulent and misleading statements * * * including among others
In reaching this conclusion, the court relied chiefly on two factors. First, it noted that the introduction of the evidence in question did not constitute surprise, much less prejudicial surprise. Id. at 457. Second, the court emphasized the unlikelihood that the defendants had been convicted of charges either rejected or not considered by the grand jury. It stated:
The grand jury’s failure specifically to mention fraud with respect to refunds was most likely due to the belief that further spelling out of defendants’ fraudulent scheme was redundant. Given the substantial evidence mustered on the point at trial, it is particularly unlikely that the grand jury consciously rejected such a charge.
Id.
Each of these factors is clearly operative in the present case. That the evidence in
In United States v. Mayo,
Haldeman claims, however, that, apart from the issue of sufficiency of notice, the indictment is defective in not performing the second function required of a valid indictment, that of protecting the defendant from the possibility of subsequent prosecution for the same offense. But, in truth, the specific phrase of the indictment about which Haldeman objects increases rather than diminishes the appellants’ protection against double jeopardy. By alleging that the obstruction of justice with which the defendants were charged was carried out “by other means” in addition to those specified, the indictment effectively broadens the scope of the acts to which jeopardy attaches and correspondingly reduces the opportunity for subsequent prosecutions of these defendants for the alleged obstruction of justice during the lengthy period alleged in the indictment (June 17, 1972 through March 1, 1974).
Also, in raising the specter of double jeopardy, Haldeman ignores the fact that, by judicial decision and by statute, all defendants have been given recourse to the entire trial record should they ever have to plead former jeopardy. E. g., Russell v. United States,
Along with the dissent, Haldeman further contends that, as regards misuse of the CIA, there is a fatal variance between the indictment on one hand and the evi
Except for incanting these Latin phrases, however, neither Haldeman nor the dissent cites any authority for the related rules of construction they seek to apply to Count 2. Furthermore, examination of the phrase “by other means” in the context of the entire count demonstrates the inaccuracy of the asserted interpretations. For purposes of analysis, Count 2 can usefully be viewed as consisting of three parts: (1) the elements of the offense of obstruction of justice (stated basically in the words of the statute); (2) the objects of the defendants’ obstruction (i. e., the investigation by the FBI and the United States Attorney’s office, the grand jury, and the trial of those accused of the original Watergate break-in); and (3) the means by which the obstruction was carried out.
The present case is readily distinguishable from Stirone v. United States, supra,
When an indictment is drawn in the general terms suggested by Stirone, it is often difficult to know exactly what evidentiary allegations were considered by the grand jury. Here, however, some indication of what was before the grand jury with respect to the CIA and what was intended by the phrase “by other means” in Count 2 is provided by the language of the conspiracy charge in Count 1 and the evidence admitted without objection in support thereof.
In this case the basis for federal jurisdiction of the obstruction of justice charge is unambiguous. The indictment explicitly charged that each element of the offense had been committed “in connection with an investigation being conducted by the Federal Bureau of Investigation and the United States Attorney’s Office for the District of Columbia, and in connection with the trial of Criminal Case No. 1827-72 in the United States District Court for the District of Columbia * * *.” Appellants do not even claim that the evidence or the jury instructions departed from these jurisdictional elements. The evidence amply showed that appellants endeavored to use the CIA to obstruct the FBI investigation.
Stirone is further distinguishable in that the variance there in question involved a material time differential. The indictment, that is, alleged interference with interstate commerce as regards past shipments of sand, but the evidence and instructions also referred to future and contingent shipments of “steel from a nonexistent steel mill.”
Accordingly, we find Haldeman’s objections to Count 2 and to the jury instructions given on that count to be without merit.
XII. THE MOTIONS TO DISQUALIFY JUDGE SIRICA
Well prior to trial, Ehrlichman and Mitchell joined in an affidavit
Judge Sirica refused the request for referral and, deeming the affidavits legally wanting, rejected the motion.
We perceive no basis upon which it could be held that Judge Sirica erred in ruling on the legal adequacy of the affidavits himself. We are mindful that the Government did not oppose the movants’ effort to get the matter before the Calendar Committee,
B. The Section 144 Claims
1. Earlier Judicial Activity
Turning to the affidavits, upon which the endeavor to disqualify was grounded,
The allegations to which we have referred do not survive this requirement.
2. Extrajudicial Statements
Another branch of the claim of bias stems from references in the Ehrlich-man-Mitchell affidavit to alleged extrajudicial utterances by Judge Sirica. One is that the judge “was guest of honor at a party given by the press honoring him on his 70th birthday,” at which he “conducted interviews with reporters in which he made statements concerning this case.”
activity that judges should scrupulously avoid.
Section 144 specifies that “[t]he affidavit” supporting a motion thereunder “shall state the facts and the reasons for the belief that bias or prejudice exists,”
Even if we assume that the interview is properly before us, it provides no basis for a finding of bias or prejudice. Judge Sirica candidly acknowledges that he was asked, “[i]s there any doubt in your mind about [the defendants’] abilities to get fair trials?”
These statements were substantively insufficient to establish bias or prejudice within the meaning of Section 144. By Judge Sirica’s appraisal, “[f]airly interpreted, these comments address the quality of the federal judiciary in the District of Columbia and do not concern changes of venue, let alone constitute a prejudgment on motions for change of venue * * *
A fundamental premise of our jurisprudential system is that, save in the most extraordinary circumstances, an impartial jury expectably may be convened anywhere in the Nation. Another is that the capability of doing so is always to be presumed
To be sure, Judge Sirica’s televised remarks are not completely free of ambiguity, and it is possible to impart into the first of his two answers a tinge of prejudgment on the forthcoming venue question in this case.
C. The Section 455 Claims
1. The Alleged Interest
As we have previously indicated,
To be sure, pre-1974 Section 455 commanded recusal in any case in which the judge had “a substantial interest.”
2. Past Relationships With Counsel
The remaining argument under old Section 455 is predicated on past relationships between Judge Sirica and attorneys who were to actively participate in the trials under review. Nearly a decade ago, while United States Attorney for the District of Columbia, Mr. David G. Bress, one of trial counsel for defendant Mardian, opposed petitions for writs of mandamus attacking the judge’s rulings in three cases.
The petition seeking a writ of mandamus or prohibition to control a ruling of a District Judge is a relatively frequent occurrence in this circuit. Active defense of the ruling by counsel for the litigant favored is commonplace,
Similarly, on widely scattered occasions when no party to an appeal from the District Court undertakes to support the decision under review, this court may appoint an attorney as amicus curiae to defend that decision. The whole purpose in
We do not find the relationship normally existent between judges and counsel in those instances any need for recusal upon resumption of the litigation in the District Court.
Then, too, recusal of a judge for a relationship to or connection with counsel for a litigant was, in the language of old Section 455, to occur only when it was such “as to render it improper, in his opinion, for him to sit on the trial * * * or other proceeding therein.”
Having considered all of the arguments raised by each of the appellants, we conclude that there was no reversible error in this case. We therefore affirm the convictions of Haldeman, Ehrlichman and Mitchell for conspiracy as charged in Count 1 and obstruction of justice as charged in Count 2. We also affirm the individual convictions of Mitchell under Counts 4, 5 and 6; Haldeman under Counts 7, 8 and 9; and Ehrlich-man under Counts 11 and 12.
Affirmed.
Notes
. The opinion in this case is issued per curiam not because it has received less than full consideration by the court, but because the complexity of the issues raised on appeal made it useful to share the effort required to draft this opinion among the members of the court.
. The grand jury also authorized the Special Prosecutor to name 18 individuals as co-conspirators: Bernard L. Barker, William O. Bittman, John D. Caulfield, John W. Dean, III, Virgilio R. Gonzalez, Sally Harmony, Dorothy Hunt, E. Howard Hunt, Jr., Herbert W. Kalmbach, Fred C. LaRue, G. Gordon Liddy, Jeb S. Magruder, Eugenio R. Martinez, James W. McCord, Jr., Richard M. Nixon, Paul O’Brien, Frank L. Sturgis, and Anthony T. Ulasewicz. J.A. 483. Several of these individuals have been convicted in other cases of various offenses connected with the Watergate incident.
. Count 1 charged all defendants with conspiracy to obstruct justice, to make false statements to a government agency, and to defraud the United Stales by corrupting the operation of the Central Intelligence Agency (CIA), the FBI, and the Department of Justice. It detailed 45 overt acts allegedly committed in furtherance of the conspiracy by one or more co-conspirators. Count 2 charged all but Mardian with the substantive offense of obstruction of justice. Counts 3 through 6 charged Mitchеll with making various false statements — one to the FBI, on two occasions to the grand jury, and once before the Select Committee. Counts 7 through 9 charged Haldeman with three instances of making false statements before the Select Committee. Counts 10 through 12 alleged that Ehrlichman had made false statements, once to the FBI and twice before the grand jury. Finally, Count 13 charged Strachan with making a false statement to the grand jury. J.A. 65-112.
. The charges against Strachen were later dismissed pursuant to Fed.R.Crim.P. 48(a).
. See note 3 supra. Counts 3 and 10, charging Mitchell and Ehrlichman respectively with false statements to FBI agents, had been dismissed by the court at the close of the Government’s case.
. Mardian received a sentence of 10 months to three years in prison. Mitchell, Haldeman, and Ehrlichman were sentenced to concurrent' terms of 20 months to five years on Counts 1 and 2, and to concurrent terms of 10 months to three years on each perjury count on which they were convicted. The perjury sentences were to run consecutive to the sentences for conspiracy and obstruction of justice, making a total of two and a half to eight years in prison for each of these three defendants.
. The statement of facts in Part I of this opinion gives a general summary of the evidence against all four individuals. Mardian’s appeal, however, was argued separately before this court and is treated in a separate opinion issued today. United States v. Mardian,
. Since none of the three appellants challenges the sufficiency of the evidence to sustain the jury verdict, we summarize here only the major events of the conspiracy. Moreover, it is well settled that on appeal we are to set forth the evidence in the light most favorable to the jury’s verdict. United States v. Clayborne,
. The burglars were James McCord, Bernard Barker, Eugenio Martinez, Virgilio Gonzalez, and Frank Sturgis. Tr. 4143. They, along with E. Howard Hunt, Jr. and G. Gordon Liddy, were convicted of burglary, conspiracy, and unlawful endeavor to intercept oral and wire communications. All but McCord and Liddy were convicted on pleas of guilty. See United States v. Liddy,
. Tr. 7662-7664. Hunt still maintained an office in the Executive Office Building next door to the White House.
. Both Dean and Magruder were convicted of conspiracy on pleas of guilty entered before the instant trial began. Both served prison terms for their roles in the cover-up. Tr. 3330-3331, 4503.
. These early proposals included plans to kidnap demonstration leaders and to plant call girls with Democratic officials. Tr. 4117-4120.
. LaRue, like Dean and Magruder, became an important Government witness. He too entered a plea of guilty to conspiracy and was awaiting sentencing at the time of this trial. Tr. 6733-6734, 6743-6746.
. Mardian did attend the meeting, but he left early. Most witnesses could not recall whether he was present when the Gemstone documents were discussed. Tr. 2673, 5215, 6572-6573.
. The conspirators were able to stall the FBI’s tracing of the money for about two weeks by invoking the danger of trespassing on secret CIA projects. The FBI had already traced the funds to two individuals who apparently served as CRP intermediaries in the “laundering” of certain contributions from former Democratic Party supporters. Tr. 2696-2710, 6170-6175. One of the intermediaries was a Mexican citizen. The Bureau was ready to interview these individuals, but was deterred when General Walters, Deputy Director of the CIA, told Gray on June 23 that such interviews might uncover CIA operations in Mexico. Walters was acting on direct orders from Haldeman, delivered during a meeting participated in by Ehrlichman. (CIA Director Helms had also been at the meeting, insisting all along that there was no danger to CIA operations. Both Haldeman and Ehrlichman, moreover, knew at the time that the break-in was Liddy’s operation.) Tr. 6123-6130, 6202-6204. Haldeman, in turn, had acted only after receiving approval for this course from President Nixon in a key meeting earlier that same day, June 23. He had told Nixon that both Dean and Mitchell suggested use of the CIA to contain the FBI investigation. Nixon agreed. Govt. Ex. 1 (a tape recording of the actual Nixon-Haldeman conversation), Tape Tr. 2-7. It was the public disclosure of this tape which led to the resignation of President Nixon.
By July 5 Gray had grown increasingly uneasy. He told Walters that the interviews would proceed unless the CIA directed otherwise, in writing. Walters delivered instead a memorandum stating that the CIA had no interest in the matter. The intermediaries were then finally interviewed. Tr. 6142-6144, 6207-6210.
This delay was made possible because some of the conspirators were carefully monitoring the FBI investigation. Beginning on June 21, at Ehrlichman’s direction, Dean established a liaison with the FBI. Tr. 2690-2697. He sat in on several FBI interviews, received copies of reports and “lead sheets,” and finally obtained a memorandum summarizing the investigation and future FBI plans. This memorandum he showed to Mitchell, Haldeman, and Ehrlichman. Tr. 2690-2697, 2711-2712, 2727-2728, 2830-2837, 6168-6176, 6217-6221, 6661.
Throughout this opinion “Govt.Ex.” refers to a Government exhibit at trial. Most of the exhibits referred to here were tape recordings of the conversations of co-conspirators. “Tape Tr.” refers to the transcript of tapes included as an appendix on appeal. These transcripts were carefully checked by the trial judge and, once he ruled they were “substantially accurate,” they were then given to the jury to serve as listening aids while the jury heard the tapes through headphones. The transcripts themselves were not admitted into evidence, and the jury was repeatedly told that their own interpretation of what they heard on the tapes was to control. Tr. 2850-2855, 6152-6153.
. This Unit was nicknamed the “Plumbers” since its mission was to stop leaks of classified information. Tr. 7656.
. See United States v. Ehrlichman, 178 U.S. App.D.C. 144,
.These were high Government officials who bore the major burden of campaign speaking duties, in place of Mr. Nixon. Tr. 2770, 4561.
. Tr. 6331.
. Tr. 2995.
. Govt. Ex. 12, Tape Tr. 131. This conversation figured in Haldeman’s conviction of perjury under Count 8 of the indictment. Haldeman testified before the Senate Select Committee that he had listened to a tape of the Nixon-Dean conversation, that Nixon had in substance made the remark quoted in text, but that Nixon then said “but it would be wrong.” The tape of the conversation revealed, however, that many minutes passed and the topic had shifted before Nixon uttered any words to that effect:
PRESIDENT: One problem; you’ve got a problem here. You have the problem of Hunt and uh, his, uh, his clemency.
DEAN: That’s right. And you’re going to have the clemency problem for the others. They all would expect to be out and that may put you in a position that’s just
PRESIDENT: Right.
DEAN: untenable at some point. You know, the Watergate Hearings just over, Hunt now demanding clemency or he is going to blow. And politically it’d be impossible for, you know, you to do it. You know, after everybody .
PRESIDENT: That’s right.
DEAN: I am not sure that you will ever be able to deliver on the clemency. It may be just too hot.
PRESIDENT: You can’t do it till after the ’74 elections, that’s for sure. But even then
DEAN: (Clears throat)
PRESIDENT: your point is that even then you couldn’t do it.
DEAN: That’s right. It may further involve you in a way you shouldn’t be involved in this.
PRESIDENT: No it’s wrong, that’s for sure.
Govt. Ex. 12, Tape Tr. 156.
. Govt. Ex. 16, Tape Tr. 277.
. Admitted into evidence were tapes of 14 conversations during this period involving Nixon and either Ehrlichman or Haldeman or both. Govt. Ex. 18-24, 26-29, 31-33.
.Govt. Ex. 26, Tape Tr. 557.
. As Nixon expressed it to Ehrlichman on April 14, all those involved have “gotta have a straight damn line that, of course we raised money. Be very honest about it. But, uh, we raised money for a purpose that we thought was perfectly proper.” Ehrlichman agreed. Govt. Ex. 22, Tape Tr. 471-472. See Govt. Ex. 37, Tape Tr. 664-665.
. See note 21 supra.
. A “venireman” is a prospective juror. Before becoming a juror he must pass voir dire examination. Throughout this opinion the term “juror” is reserved for those who served as such in this case.
. Interestingly, appellants do not claim that the jury which found them guilty was other than impartial. See note 57 and accompanying text infra. Indeed, the fact that the jury acquitted defendant Parkinson is some indication that the voir dire examination succeeded in eliminating any unfairness that might otherwise have resulted from the pretrial publicity.
. See also, e. g., United States v. Muncy,
. See also, e. g., United States v. Delay,
.Appellants have previously brought the District Court’s action to this court by seeking writs of prohibition and/or mandamus, which were denied. Ehrlichman v. Sirica, No. 74-1826 (Aug. 22, 1974) (en banc), application for stay denied,
.The other cases relied on by petitioners, Haldeman br. at 37-46; Ehrlichman br. at 76-77, either turned on factors other than pretrial publicity or involved the Court in an examination to determine whether the trial was in fact unfair. Thus in Sheppard v. Maxwell,
Irvin v. Dowd,
. Cf. Beck v. Washington,
. Without attempting .to deny thаt the pretrial publicity in this case was extraordinarily extensive, we note that appellants’ submissions overstate the amount of publicity by including, apparently, every story concerning the many difficulties of the last years of the Nixon administration, whether or not those stories discussed appellants. We also note that the overwhelm
.The dissent seeks to analogize Rideau and the present case on the ground that, in each instance, “the publicity was the trial.” The suggested basis for this purported analogy is the fact that some of the jurors in Rideau had witnessed the defendant’s televised confession and the possibility — which stems from several jurors having seen portions of the televised Senate hearings — that some of the jurors in the present case had witnessed appellants’ alleged perjuries before the Senate committee.
. The inaptness of this comparison is palpable. Unlike the television broadcasts in Rideau, the broadcasts in question here did not involve confessions by any of the appellants to any of the crimes charged. Furthermore, and notwithstanding the language of the dissent, neither authority nor common sense provides any reason to think that witnessing a statement that is subsequently alleged to constitute perjury is comparable to witnessing a confession of guilt to crimes of violence. Also, the defendant in Rideau was'apparently without the benefit of counsel when he made his confession and, according to the Supreme Court, “no one has suggested * * * even that he was aware of what was going on when the sound film was being made.”
. Even in Rideau Justices Clark and Harlan dissented on the ground that there was no showing that the jury had been affected by the' publicity.
. A judge reviewing pretrial publicity before the voir dire would have to attempt to determine from his own reactions how the community would respond to that publicity. The subjective nature of this determination is well illustrated by the arguments in the briefs. The Government maintains that since “[t]he offenses charged here were not crimes of violence and passion,” but rather legally complex white collar crimes, pretrial publicity would make little impression on most citizens. Br. for the United States (hereinafter Govt, br.) at 76-77. Haldeman, on the other hand, maintains that the publicity was such as to arouse " strong personal feelings in all who came in contact with it:
Each citizen and thus each prospective juror was led to believe that his security and way of life was [sic] personally threatened by what these appellants had done. There could be no sympathy for them. The publicity was calculated to inspire the jurors with a high sense of duty involving much more significant issues than bringing some petty criminal to justice. They were made to feel that they were patriots repelling an attack on their country by an enemy within the gates. * *
Haldeman reply br. at 12. After the voir dire a judge can determine which, description of the publicity’s impact is accurate; before the voir dire a judge could only gave guessed.
Our own reading of the 2,000-page voir dire demonstrates that the Government’s assessment of the public’s interest in Watergate matters is correct. Most of the venire simply did not pay an inordinate amount of attention to Watergate. This may come as a surprise to lawyers and judges, but it is simply a fact of
. Uncertainty could, of course, be avoided by using a per se rule based on the quantity of publicity. Such a rule, however, would be contrary to the law of this circuit, see United States v. Caldwell, supra note 29,
. Simultaneously with filing of the indictment, the District Court enjoined the “staff of the Watergate Special Prosecutor, defendants, their attorneys and witnesses from making extrajudicial statements concerning any aspects of [the] case that are likely to interfere with the rights of the accused or the public to a fair triál by an impartial jury * * J.A. 2. All members of the venire were told not to read about or discuss the case, see, e. g., Tr. 197, and the jury was sequestered as soon as it was selected.
. This factor sharply distinguishes this case from Marshall v. United States, supra note 32, and other cases involving publicity which reached the jury during the trial. See note 32 supra.
The supervisory power has also been used as a judicial response to improper actions by another branch of government. See Note, The Supervisory Power of Federal Courts, 76 Harv.L.Rev. 1656, 1660-1664. Delaney v. United States,
. Judge MacKinnon’s dissent on this issue relies most heavily on Marshall in taxing this court for refusing to use its supervisory power to reverse these convictions. Marshall was convicted of unlawfully dispensing a number of dextro amphetamine sulfate tablets without a prescription from a licensed physician, in violation of 21 U.S.C. § 353(b)(1)(B). The trial court refused to allow the Government to show that Marshall had previously practiced medicine without a license. Marshall never took the stand during his trial, nor did he offer any evidence. His only defense was entrapment. During the trial seven of the jurors read newspaper accounts stating that Marshall had a record of two prior felony convictions, one being for forgery. The accounts also stated that Marshall admitted he had only a high school education and that he practiced medicine with a $25 diploma he received through the mail. The newspaper reports also stated that Marshall “told in detail of the ease in which he wrote and passed prescriptions for dangerous
. The potential efficacy of a continuance is also open to question. At the time of the trial there was little reason to believe the news media would not continue their inquiry into the events of Watergate, at least until the activities of the primary participants had been fully explored at a public trial. Cf. United States v. Hoffa,
. Moreover, on the basis of the record, we note that a change of venue would have been of only doubtful value. Many of the articles appellants submitted in support of their motions were taken from nationally circulated news magazines. The network news programs and legislative hearings of which appellants also complain were similarly national in their reach. Scandal at the highest levels of the federal government is simply not a local crime of peculiar interest to the residents of the District of Columbia. Cf. United States v. McNally, supra note 30,
In reaching the conclusion that a change of venue was required, the dissent relies heavily on two disparate, though equally suspect, indicia. The first is a poll commissioned by the appellants and conducted by a public opinion research company. This court has previously held, however, that a trial judge, sitting in lieu of a jury, is not required to accept expert testimony. Hightower v. United States, 117 U.S. App.D.C. 43,
The second major prop for the dissent’s argument that a change of venue should have been granted is, oddly, the District of Columbia’s voting record in the past two presidential elections. Not without reason, the relevance of this information seems to have escaped the prosecution, the defendants, their counsel, and the trial court. Nevertheless, undeterred by the absence of any reference to voting results anywhere in the record or the appellate briefs, the dissent introduces the subject with a quotation from United States v. Dennis,
. After the first two veniremen had been questioned individually, the District Court determined that many questions could be put to small groups without harm to the selection process and with a great time saving. Only defendant Ehrlichman stated an objection to this change in procedure, Tr. 520, and this objection appears to have been pro forma. We see nothing wrong with the trial court’s decision.
One of the first two veniremen questioned was excused because of inability to be sequestered for the necessary time. Tr. 471^472. The other (Barksdale) was excused because of a challenge for cause by the defense. Tr. 518-519. That challenge was based on the juror’s negative response to the following question:
Do you agree that you are enforcing the law just as vigorously or just as much by voting for an acquittal or not guilty, in other words, if there is a reasonable doubt, which I will go into [in] greater detail later, as to the guilt of any Defendant as you would do by voting for conviction when there is no such doubt?
Tr. 480; see Tr. 507-508, 518-519. Defense counsel admitted when making the challenge that the venireman had probably not understood the question, Tr. 508, and the court concluded that the question was confusing and should not be asked again. Tr. 519. Barksdale said she had paid little attention to the Watergate news and had no opinion as to the guilt of any defendant. Tr. 490-499. It is therefore improper to count her as biased against the defendants because of the pretrial publicity. But see Mitchell reply br. at 18 n. 12.
. This description of the steps in the process is not chronological. The individual questioning of members of a group of 12 to 18 occurred immediately after collective questioning of that group had been completed and before the next group was questioned.
. Compare, e. g., Tr. 607-619 (Juror G. Carter) with Tr. 1876-1901 (Juror Young). The flexibility in the trial court’s questioning belies appellants’ contention, Ehrlichman br. at 74, 79-80, that the voir dire involved only “perfunctory” repetition of a few uninformative questions.
. United States v. Ehrlichman, D.D.C.,
. Although appellants focus on the issue of “content” questions, their briefs criticize many other aspects of the conduct of the voir dire. Taking these complaints as assertions of error, we find them to be unworthy of extended discussion. In no instance mentioned in the briefs did the trial court abuse its substantial discretion in determining the conduct of the voir dire, see pp. 287-288 of 181 U.S.App.D.C., at pp. 64-65 of 559 F.2d, supra, and in ruling on challenges. See, e. g., Reynolds v. United States, 98 U.S. (8 Otto) 145, 156-157,
The dissent, which largely echoes appellants’ assorted complaints about the voir dire, also fails to point to a single instance in which the trial court abused its discretion. In its attempt to show that the voir dire was in some way inadequate or improper, however, the dissent carefully selects, from the more than 2,000 pages of the voir dire transcript, the isolated passages that are most susceptible to the interpretation that the trial judge and the jurors were predisposed to find the defendants guilty. Consistently ignored, it should be pointed out, are the numerous passages that suggest a predisposition to find the defendants innocent— passages which often appear immediately before or after those quoted by the dissent.
For instance, the dissent specifically refers to the voir dire of jurors Ruth Gould, Marjorie Milbourn, and Jane Ryon as demonstrating that the trial judge erred in not eliciting more fully the jurors’ general opinions on the subject mattir of the case. Omitted from the dissent, however, is any reference to the opinions these jurors did express. In truth, each of these three jurors, in response to a question from the trial court, said she felt that, in view of the pardon granted to former President Nixon, it would be unfair to prosecute any of the defendants. Tr. 843 (Gould voir dire); Tr. 1187 (Milbourn voir dire); Tr. 1429-1430 (Ryon voir dire). See also Tr. 631 (voir dire of Roy G. Carter, a juror who also responded that, in view of the pardon, it would be unfair to prosecute any of these defendants).
. The dissent finds the trial court’s voir dire inadequate in restricting its inquiry to what “in particular” stood out in a venireman’s mind as the result of the pretrial publicity. This self-imposed restriction, it is argued, led to the court’s not inquiring as to the general opinions and impressions that the veniremen have formed from the publicity.
Though not without ambiguity, this portion of the dissent appears to be little more than a variation on appellants’ complaint that the trial court erred in refusing to ask “content” questions. For the reasons given infra, we find this refusal entirely justified.
Further, we specifically note that the questions that were propounded during the voir dire refute any suggestion that the trial court failed to address the fundamental issue of whether the veniremen were predisposed to find the defendants guilty. -The dissent, of course, concedes that the trial court did inquire as to this issue, but contends that the court’s questions should have been worded differently. The judge asked a “loaded question,” according to the dissent, when he said, “Do you believe at this very moment, and without having heard any of the evidence that will be offered in this case, that any Defendant in this case is guilty of violation of any or all of the charges set out in the various counts of the indictment?” But in a voir dire involving as many prospective jurors and as many questions as did the voir dire in this case, the fact that certain questions could have been formulated more adroitly is not surprising — much less is it reversible error. Also, it is instructive to note, as regards” the “loaded question” referred to, that one of the jurors responded to the question with the statement that in her opinion the defendants were “not guilty.” Tr. 1675-1676 (voir dire of Thelma L. Wells).
. See, e. g., J.A. 436-437 (Questions 26, 29, 35, 41, 47). Ehrlichman’s proposed voir dire consisted of 230 questions. Many of them were intended to obtain the veniremen’s reactions to the facts which would come out at trial and to explain those facts in terms favorable to Ehrlichman’s defense. See J.A. 442 — 450. This attempt to use voir dire as an occasion for argument of contested facts was clearly improper.
Mitchell’s proposed voir dire did not include any “content” questions. See Record Vol. 9, Doc. 308.
.Appellants contend that the trial judge improperly relied solely on the subjective assurances of veniremen that they were capable of setting aside their opinions when ruling on defense challenges for cause. E. g., Mitchell br. at 113-114. We agree that it would have been reversible error for the court to accept jurors simply because they said they would be fair. See, e. g., United States v. Dellinger,
. At defendants’ request, veniremen were asked about their knowledge of and reaction to specific incidents with a high potential for prejudice such as the “plumbers” trial, see note 47 supra, and the naming of ex-President Nixon as an unindicted co-conspirator.
. Appellants suggest that if the voir dire had included “content” questions the belated revelation that one juror (Plunkett) had discussed the case with a secretary in the office of the Special Prosecutor and that another (Milbourn) had written letters to Senator Baker mentioning Watergate as an example of the country’s moral problems would have been avoided. Ehrlichman br. at 74-76; Mitchell br. at 81. (Plunkett was dismissed from the jury and replaced by an alternate; Milbourn was retained after additional questioning in chambers.) We reject the contention that these incidents demonstrate that the voir dire was not sufficiently thorough. All of the veniremen were asked about contacts with anyone in the Special Prosecutor’s office; Plunkett apparently simply forgot about the incident. Similarly, all veniremen were asked whether they had expressed any opinions about the guilt or innocence of the defendants. Juror Milbourn mentioned her letters in belated response to this question. If anything, her action following a weekend recess indicates that the voir dire successfully impressed upon the jurors the seriousness of their undertaking and the importance of full answers. We also note that Juror Milbourn had indicated during the original voir dire that she felt Watergate had been morally undesirable, essentially the same opinion she expressed in her letters. She was not challenged for cause by the defense. See Tr. 1172-1212; note 57 infra.
. Section 3.4(b) also provides that a potential juror “who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material,” should be excused for cause. There was no such material or information in this case, see
. The voir dire concerning publicity consisted of only four questions.
. Appellants contend that we cannot determine whether the jurors were biased by reviewing the voir dire. To the extent this contention rests on their claims that the publicity was certain to prejudice all who came in contact with it and that the voir dire was inadequate, we have already rejected their position. To the extent their argument rests on Irvin v. Dowd, supra note 32, we reject it here.
In Irvin 62% of the 430-member venire admitted possessing a fixed opinion of the defendant’s guilt which could not be set aside. See
Appellants claim that 52% of the veniremen questioned individually had an inclination, “ranging in intensity from mere suspicion to absolute certainty,” toward a belief in guilt. Mitchell br. at 96. The Government maintains that only 8% of those questioned indicated an opinion of guilt that could not be set aside. In all, the Government identifies 29% of the venire as having had an opinion of appellants’ guilt and another 7% as possessing an “arguable predisposition against defendants.” Govt, br. at 243. Compare Murphy v. Florida, supra note 32,
This may indeed be [one third] more than would occur in the trial of a totally obscure person, but it by no means suggests a community with sentiment so poisoned against [appellants] as to impeach the indifference of jurors who displayed no animus of their own.
Murphy v. Florida, supra note 32,
. Appellants list three of the jurors as “inclined to belief in guilt.” See note 56 supra; Mitchell br. at 97. There is no basis for holding that any of these jurors were biased against appellants. Juror Gould was apparently so classified because, in response to the question whether she had formed or expressed an opinion as to appellants’ guilt or innocence, she said, “No. I think the only expression of that kind was when the tapes came out and I was rather amazed.” Tr. 841; see Mitchell br. at 75. She also indicated she believed it unfair to prosecute appellants in view of the pardon of former President Nixon. She was not challenged for cause, and the judge’s decision to accept her apparently received affirmative approval from counsel for appellant Haldeman. Tr. 851.
Jury Chairman Hoffar is considered by appellants to have inclined toward a belief of guilt because he expressed his agreement with others’ viewpoints about the case in order to avoid arguments. Tr. 994; Mitchell br. at 76. The only challenge to Hoffar was based on his asserted equivocation. Tr. 946-947. Nothing in the transcript indicates he had formed any disqualifying opinion of his own.
. We note that even if some of the jurors had harbored preconceptions as to appellants’ guilt, the three-month period during which the jury was sequestered would have greatly reduced the importance of any impressions based on pretrial publicity. “Although [sequestration] insulates jurors only after they are sworn, it also enhances the likelihood of dissipating the impact of pretrial publicity and emphasizes the elements of the jurors’ oaths.” Nebraska Press Ass’n v. Stuart,
. Ehrlichman br. at 92. Ehrlichman refers to his testimony that when he listened to the tapes it became clear that in various major instances the former President had given him a false impression: “In the matter of the June 23 meeting, in the matter of what he learned from John Dean on March 21, which he did not impart to me, in the matter of his conversations with Charles Colson in January, which were just exactly diametrically opposite to the representations that he had made to me with regard to his intents on clemency, about the matter of his conversation with Mr. Mitchell on March the 22nd after I left the room, when I thought we had an agreement in principle that there was going to be a full disclosure statement issued, and then, of course, his position was exactly the contrary, 1 feel.” Tr. 554, 10241, quoted in Ehrlichman br. at 92.
. See Allen v. United States,
. United States v. Valdés,
. Govt. Ex. 1A, Tape Tr. 2.
. United States v. Leonard,
Ehrlichman’s brief does not cite these cases, but we give him the benefit of considering their doctrine.
. United States v. Mayes,
. United States v. Leonard, supra note 63,
. See appendix and attachments to the District Court’s memorandum and order of Sept. 25, 1974 (R. 342). The memorandum is officially reported, United States v. Mitchell,
[T]he [Special Prosecutor] provided each defendant with copies of his own grand jury testimony, prosecution interviews, F.B.I. interviews, and all other statements or testimony possessed by the prosecution which related to this case. Additionally, the [Special Prosecutor] made efforts to obtain for each defendant his statements or testimony relating to this case made before congressional committees. . [E]ach defendant had been provided with copies of or access to the tapes and transcripts of the subpoenaed White House conversations, a list of scientific tests and experiments the prosecutor had knowledge of, and a tremendous volume of other possibly relevant materials.
Id. at 183 (footnote omitted).
. United States v. Mitchell, supra note 66.
. See note 89 infra.
. R. 338.
. See also United States v. Agurs,
. The pivotal consideration, as will develop, is that Ehrlichman does not indicate how any possibly inaccessible information might have been material to his defense. See cases cited supra note 70.
. See cases cited supra note 70.
. See, e. g., United States v. Bryant, 142 U.S. App.D.C. 132, 140,
. Compare United States v. Deutsch,
. Discussed in text infra at notes 78-104. While Ehrlichman’s brief alludes to unidentified White House tapes, we note the District Court’s finding that prior to commencement of the trial “each defendant had been provided with copies of or access to the tapes and transcripts of the subpoenaed White House conversations.” See note 66 supra. Ehrlichman does not specify any other tape desired; indeed, the White House aspect of his discovery argument centers on files, particularly his notes therein. See note 78 infra. In any event, our discussion of the discoverability of materials in the files is equally applicable to any additional tapes.
. Discussed in text infra at notes 105-113.
. Nor do we find error with respect to other discoverable materials. See note 75 supra and notes 80, 112 infra.
. Even so, the White House files actually did yield some materials. Ehrlichman was provided with a written report, and related notes, which he made to President Nixon and he employed them at trial. Tr. 7640 B-E; Ehrlichman Ex. 22, 23.
. During all of the period relevant to these cases, Fed.R.Crim.P. 16(b) provided:
Upon motion of a defendant the court may order the attorney for the government to permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, upon a showing of materiality to the preparation of his defense and that the request is reasonable. Except as provided in subdivision (a)(2), this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses (other than the defendant) to agents of the government except as provided in 18 U.S.C. § 3500.
Rule 16 was revised and considerably broadened in 1975. Pub.L. No. 94-64, 89 Stat. 370 (1975). Since, however, the changes did not become effective until December 1, 1975, id. § 2, they have no effect on the cases at bar. Throughout this opinion we refer to Rule 16 as it was before the 1975 revisions.
.See note 79 supra. We are advertent to provisions of Fed.R.Crim.P. 16(a)(1)(A) respecting discovery of “written or recorded statements * * * made by the defendant” and “recorded testimony of the defendant before a grand jury,” which were in force when Ehrlichman was tried. Production of these documents was practically a matter of right even without a showing of materiality, see Xydas v. United States,
. Fed.R.Crim.P. 17(c), relating to subpoenas for production of documentary evidence and of objects, provides:
A subpoena may also command the person to whom it is directed to produce the books, papers, documents or other objects designated therein. The court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive. The court may direct that books, papers, documents or objects designated in the subpoena be produced before the court at a time prior to the trial or prior to the time when they are to be offered in evidence and may upon their production permit the books, papers, documents or objects or portions thereof to be inspected by the parties and their attorneys.
Portions of Rule 17 were likewise amended in 1975, see note 79 supra, but subsec. (c) was left as it was at the time the instant cases were before the District Court.
. United States v. Nixon,
. Bowman Dairy Co. v. United States, supra note 82,
. See note 81 supra.
. See note 81 supra and note 89 infra.
. United States v. Nixon, supra note 82,
. United States v. Mitchell, supra note 66,
. See note 79 supra. “While specific designation is not required of the defendant, the burden is placed on him to make a showing of materiality to the preparation of his defense and that his request is reasonable. The requirement of reasonableness will permit the court to define and limit the scope of the government’s obligation to search its files while meeting the legitimate needs of the defendant.” Advisory Committee Note to 1966 Amendment. Compare United States v. Jordan,
. Ehrlichman caused two subpoenas duces tecum to issue. One, dated Sept. 4, 1974, called for production of
books, records, tape recordings, drawings, graphs, charts, photographs, phono records, and other intangible matters which refer to or relate to the concealment or cover-up of the break-in into Democratic National Headquarters and the involvement as to the same by agents or employees of The White House or the Committee for the Re-election of the President.
on a date prior to actual beginning of the trial. R. 338. An earlier subpoena, dated Aug. 29, 1974, is not included in the record on appeal, and our only information as to it is the statement in the Special Prosecutor’s brief that it “sought production of [Ehrlichman’s] notes of conversations with then President Nixon, correspondence and memoranda, and his ‘personal’ papers relating to Watergate for the time period June 17, 1972 to May 1, 1973 * * Br. for United States at 2IT.
. See note 81 supra. The requirement of reasonableness subsumes a duty to designate the documents sought with reasonable particularity. See, e. g., Margoles v. United States,
. Compare, e. g., United States v. Schembari,
. We do not lose sight of the question once posed by. Chief Justice Marshall: “Now, if a paper be in possession of the opposite party, what statement of its contents or applicability can be expected from the person who claims its production, he not precisely knowing its contents?” United States v. Burr, 25 Fed.Cas. pp. 187, 191 (No. 14,694) (C.C.D.Va.1807). See also United States v. Ross, supra note 88,
. Ehrlichman had personal access to the White House files, and he utilized the opportunity to review them. He asserts, however, that his attorney was not permitted to accompany him on those occasions, and that he was thereby denied his Sixth Amendment right to counsel. From our reading of the record, it appears that while at one time there was a prohibition on examination of the files by counsel, the restriction was subsequently removed. See Tr. 8394, 8628-8631. In any event, on another appeal Ehrlichman raised the same point and only recently we rejected it:
The fact that Ehrlichman was given access to these files — which recorded Presidential conversations apparently unrelated to the [case on trial] — could not vest a right of access in his attorney, who was not privy to the conversations. The [restrictive] order did not prevent Ehrlichman from leaving the room where the files were located at any time to inform his attorney in detail of the materials he had located. Ehrlichman does not contend that his attorney would have been prevented from framing subpoenas duces tecum for relevant material so located.
United States v. Ehrlichman, supra note 17,
. For example, see note 78 supra.
. United States v. Nixon, supra note 66,
. U.S.Const. art. II.
. United States v. Nixon, supra note 82,
. Id.
. Id.
. See text supra at notes 79-86.
. United States v. Nixon, supra note 82,
. United States v. Nixon, supra note 82,
. United States v. Nixon, supra note 82,
. See text supra at notes 87-93.
. See text supra at note 87.
. See note 88 supra and accompanying text.
. See text supra at note 91.
. Tr. 9115.
. Tr. 9115, 9246-9250, 9304-9305.
. Tr. 9620-9621.
. A related matter is Ehrlichman’s invocation of the Jencks Act, 18 U.S.C. § 3500 (1970), which entitles an accused, on motion after completion of direct examination of a prosecution witness, to any “statement” of the witness “in the possession of the United States which relates to the subject matter as to which the witness has testified.” Id. § 3500(b). “Statement” includes a contemporaneous and substantially verbatim recording or transcription of oral testimony, id. § 3500(e)(2), and Ehrlich-man contends that testimony previously given by trial witnesses for the prosecution to the Subcommittee on Intelligence of the House Armed Services Committee was within the purview of the Act.
The question whether, by adopting the Act, Congress contemplated subjection of its own records to the Act’s disclosure requirements is surging increasingly to the fore. See United States v. Liddy, supra note 17, 177 U.S.App. D.C. at 7-8,
Jencks Act requirements do not rise per se to constitutional stature, Scales v. United States,
We later observe that Ehrlichman was late in asserting in this court his congressional-materials claim, and that as a result the case lacks argumentative focus on that claim. See note 113 infra and accompanying text. Nowhere is that condition graver than here. In the face of record revelations that some if not all of the Subcommittee testimony was opened to the defendants, see text supra at notes 108-110, Ehrlichman insists that he never gained access to any of the testimony, see note 113 infra and accompanying text, and his tardiness in raising the point has foreclosed responsive briefing by the Special Prosecutor. See-note 113 infra and accompanying text. Moreover, Ehrlichman does not furnish record references to in-trial requests for the testimony at statutorily-appointed times or to rulings on any such requests, see Fed.R.App.P. 28(a), (e); D.C.Cir.R. 8(e), and we think it unwise to attempt a search of a three-month-trial record generating more than 12,000 pages of transcript in a quest for unspecified error. Compare Minnesota Mining and Mfg. Co. v. Technical Tape Corp.,
. Compare United States v. Pinkney,
Thus there is no occasion to consider whether the Special Prosecutor’s Brady duty, see text supra at note 70, extended to congressional materials, see Calley v. Callaway,
. In his opening brief Ehrlichman made only passing reference to the initial refusal of the Subcommittee on Intelligence of the House Armed Services Committee to release the executive session testimony. Br. for Ehrlichman at 55. That brief sets forth no claim that he did not later receive the testimony, nor argument that any failure to receive it wronged him. In his reply brief Ehrlichman asserted for the first time that “[t]he trial court declined to require compliance with the Jencks Act with respect to any testimony given before the Subcommittee on Intelligence of the House Armed Services Committee” and that “[a]s a result, [he] was deprived of testimony which had been given by either [him] or other witnesses, before the Subcommittee, as to this case.” Reply br. for Ehrlichman at 16.
Points raised for the first time in a reply brief are not normally to be considered on appeal. Finsky v. Union Carbide & Carbon Corp.,
. For the Advisory Committee’s report, see Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Proposed Amendments to the Federal Rules of Criminal Procedure 10 (1973); for the approval by the Judicial Conference, see Report of the Proceedings of the Judicial Conference of the United States, September 25-26, 1975, at 76; for the approval by the Supreme Court, see
. It is noteworthy that appellants have not advanced any colorable claim that the jury which convicted them possessed any identifiable or demonstrable bias. See note 57 supra.
. This was corroborated by an affidavit by Nixon’s physician filed on Oct. 7. Doc. 368.
.On the day of the hearing Nixon’s counsel filed an updated medical report, indicating that the doctors had determined that the cause of the clots was Nixon’s chronic phlebitis, that Nixon’s leg was still swollen, and that it was not known whether there were further clots in the leg. The affidavit stated that another lung scan was scheduled in roughly a week and that if the results were negative Nixon would be well enough to be deposed in or near his home. A veinogram was scheduled in approximately two weeks (assuming the lung scan results were satisfactory) and any determination of Nixon’s ability to travel would have to await the results of that test. Doc. 393.
. On Nov. 13, 1974 counsel updated his affidavit by reporting that Nixon had been having “labile hypertension seemingly stimulated by both physical and non-physical effort”; that Nixon had been advised to restrict his activities; and that Nixon expected to be discharged from the hospital very soon. Doc. 471.
. United States v. Mitchell,
. Washington v. Texas,
. See Barker v. Wingo,
. See note 128 infra. But see Westen, Compulsory Process II, 74 Mich.L.Rev. 191, 244-250 (1975).
. See, e.g., Isaacs v. United States,
. See, e.g., United States v. Reed, 155 U.S. App.D.C. 198, 200 n.1,
.See, e.g., Isaacs v. United States,
The Government goes too far in asserting that a movant must show by “affidavit” or “verifiable representation” what the proposed witness would testify to. Govt. br. at 211. When the witness is uncooperative or unavailable, a defendant can do no more than predict what the witness would say if he testified truthfully. Cf. United States v. White,
. See, e.g., Isaacs v. United States, supra note 125,
In Neufield v. United States, supra, we stated that these first three factors constituted the “showing” a party seeking a continuance “must make.” 73 App.D.C. at, 179,
. Compare, e.g., United States v. Reed, supra note 124,
. In rejecting the earlier requests the District Court properly found that there was insufficient reason to believe Nixon would be unable to travel to Washington at any time during the three-month trial. Indeed, as late as October 17 Nixon’s counsel was arguing that his client probably would be able to attend. It was only after Nixon’s unexpected surgery on October 29, and his even more unexpected reaction to the surgery, that Nixon’s health precluded travel. It is well-established that motions for continuance “must be decided by the trial judge in the light of facts then presented and conditions then existing.” Avery v. Alabama,
. United States v. Mitchell, supra note 119,
. Id. at 1192-1193.
. Id. Because we affirm the court’s decision not to grant a continuance, we do not decide whether appellants’ showing would have satisfied Rule 15’s requirements.
. Id. at 1192.
. Id.
. Id.
. This court has held that sequestration is proper despite a defendant’s objection. Baker v. United States,
. It is axiomatic that the decision to sequester (or unsequester) a jury rests within the trial judge’s discretion. See, e. g., Holt v. United States,
.
. Examples of this abound, and we list just three: (1) Mitchell wanted Nixon’s testimony about “[t]he June 20, 1972 telephone conversation between Mr. Mitchell and Mr. Nixon”; (2) Haldeman desired Nixon’s testimony regarding “[tjhe nature, content and extent of [Nixon’s] knowledge of the facts of the Watergate break-in and cover-up and which parts thereof were imparted by him to defendant Haldeman . ”; (3) Ehrlichman sought Nixon’s testimony as to “[his] reason and motive for including Defendant Ehrlichman in the Helms-Walters meeting of June 23, 1972.”
. For example, Ehrlichman and Haldeman each sought Nixon’s testimony concerning conversations he had with Henry Peterson in which Peterson discussed statements made to the U.S. Attorneys by Dean. Similarly, Ehrlichman wanted Nixon to testify about information he received from Attorney General Kleindienst in Aug., Sept., and Dec. 1972 and about a meeting with Kleindienst on March 31, 1973. (Interestingly, when Kleindienst testified Ehrlichman did not question him about any of these discussions.)
. For example, Haldeman and Ehrlichman both desired Nixon’s testimony regarding a conversation involving the three of them prior to the LaCosta meeting (see Part I-E supra) discussing its purposes, and regarding conversations involving one or both of them after LaCosta concerning the results. Not only did Haldeman and Ehrlichman agree as to the purposes, but so too did Dean. See Tr. 3019 (“discussions about how to deal with the Senate Watergate Committee”).
. For example, Mitchell sought Nixon’s testimony regarding a taped meeting with the President on March 22, 1973. Haldeman wanted Nixon’s testimony regarding “any conversations” between the two of them relating to employment for Magruder and Bart Porter, and any mention of perjury in such conversations; one such conversation, a highly incriminating one, was included on the tape of a March 22 meeting. Govt. Ex. 15, Tape Tr. 257-258. Ehrlichman wanted Nixon to verify Ehrlichman’s claim that he urged a course of full disclosure upon Nixon. Ehrlichman testified at trial, however, that he was “perfectly willing to stand on the record of these tapes where time after time I am advocating a full disclosure.” Tr. 10, 242.
.
. See generally United States v. Ehrlichman, supra note 17.
. The operation was carried out by Bernard Barker, Eugenio Martinez, and Felipe DeDiego, under the supervision of E. Howard Hunt and G. Gordon Liddy.
. McCormick on Evidence § 190 (E. Cleary 2d ed. 1972); 1 Wharton’s Criminal Evidence § 247 (C. Torcía 13th ed. 1972); 1, 2 J. Wigmore Evidence §§ 216, 389 (3d ed. 1940); cf. Anderson v. United States,
. 1 J. Wigmore, supra note 145, at § 216.
. 2 J. Wigmore, supra note 145, at § 389 (emphasis original).
. Ehrlichman br. at 46.
. Id. at 51. The “Plumber’s Trial” reference is to United States v. Ehrlichman, supra note 17.
. Govt. br. at 12 in United States v. Ehrlich-man, supra note 17.
. This memorandum, which was read to the jury at Tr. 7552-7560, was given by E. Howard Hunt to his attorney, to be delivered to Kenneth Parkinson. In it, Hunt reminded the Administration of its “commitments” for “financial support” and made lightly veiled threats of disclosure if “all past and current financial requirements” were not met by a specified date.
.The Government’s Bill of Particulars, ¶ B(l) (filed July 5, 1974), defined “other illegal and improper activities” in ¶[ 11(C) of the indictment on Count 1, J.A. 116, to include inter alia, “the burglary of the offices of Dr. Louis J. Fielding.” J.A. 353.
. Tr. 2454.
. Ehrlichman br. at 49, 45-53a. Ehrlich-man’s claim of double jeopardy was denied by the trial judge. Tr. 374.
. Ehrlichman’s counsel himself made or elicited several references to the Ellsberg break-in trial during his cross-examination of Krogh. Tr. 7783, 7784, 7804.
Ehrlichman did not deny that he approved the Ellsberg operation or that he was aware of it immediately after it occurred. Tr. 10059, 10070. He denied authorizing a “burglary” and introduced evidence that the participants believed it to be justified on national security grounds. Tr. 2455, 7598-7599, 7603, 7722, 7749-7753, 7758-7759, 7764-7765, 9949-9967.
. It cannot be contended that the prosecutor disregarded established precedent in including a reference to the Ellsberg break-in in his opening statement of October 14, 1974, since Bailey was not decided until October 17, 1974.
. See note 152 supra.
. Govt. Trial Memorandum 3, 14 (filed Oct. 16, 1974).
. See note 154 supra.
. We reject the argument of Ehrlichman that he was “forced * * * to abandon his character witness testimony” because the Government threatened “to ask these witnesses if they had heard that Mr. Ehrlichman was charged with [the Ellsberg break-in].” Ehrlichman br. at 45 n.6a. This statement is inaccurate in several respects. First, the crime on which the prosecution sought to question Ehrlichman’s witnesses was perjury, and not the conspiracy to violate Dr. Fielding’s civil rights. Although the Government’s initial request to the judge, Tr. 9317-9322, was unclear on this point, the court’s ruling is unambiguous. Tr. 10297-10299. Second, it was his conviction, rather than his indictment, which the prosecution sought to raise. See, e. g., Tr. 9319. Third, the “threat” which Ehrlichman complains of was in fact a request to the trial judge to rule in advance on the propriety of asking future character witnesses about this conviction. Such a request is a legitimate trial tactic which avoids the possibility of improperly and irretrievably presenting prejudicial matter to the jury before the judge has a chance to rule on its admissibility.
When a character witness is offered by the accused, he becomes subject to cross-examination as to his testimonial qualifications.
The probe on cross-examination may extend to those matters, among others, which legitimately affect the witness’ knowledge of the accused’s community reputation for the character trait or traits which he confirms. Accordingly, it is well settled . . that it may become appropriate on cross-examination to ask a good-character witness whether he has heard reports of particular events, including prior convictions or arrests of the accused, which are inconsistent with the reputation to which he has testified.
United States v. Lewis,
We are confirmed in our view that the trial judge acted properly here by the fact that his ruling shows a great concern for limiting any possible prejudice to Ehrlichman from the Government’s attempt at impeachment of his character witnesses. Cf. Lewis, supra,
. Mitchell’s prior testimony appears in Hearings on S.Res. 60 Before the Senate Select Committee on Presidential Campaign Activities, 93rd Cong., 1st Sess., Bk. 4, at 1601-1681; Bk. 5, at 1816-1936 (1973); Hearings on H.Res. 803 Before the House Committee on the Judiciary, 93d Cong., 2d Sess., Bk. 2, at 113-217 (1974). See Mitchell br. 12-45, 54-55.
The Government also introduced portions of Mitchell’s congressional testimony as part of
. Although no specific objection was raised during the trial on this ground, Mitchell’s motion to dismiss the indictment, filed May 1, 1974, charged that he “was denied fundamental fairness and due process by being compelled to testify before the Senate Committee at a time when he was a putative defendant in this case.” J.A. 267. We take it that the trial court intended to reject Mitchell’s contention outright, and that he was not required to take further procedural steps to keep his contention alive — at least in the absence of any indication by the trial judge that the denial of the motion was without prejudice, and required further procedures. This is a contention that defendant was subject to compulsion in violation of the Fifth Amendment, and denial should not lightly be put on purely procedural grounds.
. United States v. Mandujano,
. Mitchell br. at 37.
. Quoting Miranda v. Arizona,
. But there are critical differences between the grand jury and legislative committee contexts. See discussion pp. 318-319 of 181 U.S.App.D.C., pp. 95-96 of 559 F.2d infra.
. The Court cited United States v. Knox,
. Harris v. New York,
Professors Dershowitz and Ely dispute Chief Justice Burger’s finding in Harris that “[p]etitioner makes no claim that the statements made to the police were coerced or involuntary.” See Harris v. New York: Some Anxious Observations on the Candor and Logic of the Emerging Nixon Majority, 80 Yale L.J. 1198, 1201-1208 (1971).
. Mitchell br. 53 n.33.
. See Rogers v. Richmond,
.
. See, e. g., Quinn v. United States,
. Garner v. United States, supra note 172,
. Miranda v. Arizona, supra note 165,
An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.
As examples of such “official investigations,” the Court cited two cases dealing with a congressional investigation and an administrative agency hearing. Id. n. 30, citing Quinn v. United States,
. See United States v. Washington, supra note 163,
We note that the Constitutional Rights Subcommittee of the Senate Judiciary Committee has scheduled hearings on grand jury reform. Before the Subcommittee is S. 3274, a bill introduced by Senators Abourezk, Gravel, and McGovern, which includes provisions requiring notice to grand jury witnesses when they are potential defendants, relief from compelled appearance absent a grant of immunity upon advance written notice that the Fifth Amendment privilege will be claimed, and the right to counsel in the grand jury room.
. United States v. Rose Wong, supra note 163,
. See United States v. Mandujano, supra note 163,
. Compare Lefkowitz v. Turley,
. Griffin v. California,
. In re Liddy,
. Bowles v. United States,
. See Marchetti v. United States,
. Cf. Quinn v. United States,
. That Mitchell’s underlying grievance goes to the issue of pretrial publicity is suggested by his reference to Delaney v. United States,
. In proving the crime of perjury, the uncorroborated testimony of a single witness is not sufficient to establish the falsity of the statement of a defendant under oath. Hammer v. United States,
. The allegedly perjurious statement was:
No one, to my knowledge, was aware that these funds involved either blackmail or “hush money” until this suggestion was raised in March of 1973.
Indictment, Count 7, ¶ 4, J.A. 139.
. See, e. g., United States v. Thompson,
. HALDEMAN: Okay, but, we’re very clear on that, except this concern is what they do on the other side. What happened was that is they, they needed the money
PRESIDENT: Right.
HALDEMAN: . . . They were supposed to be getting it themselves from other sources, from other Cubans and all that kind of crap .
PRESIDENT: Right.
HALDEMAN: ... So, they got back to a crunch once in a while when a guy had to have another $3,000 or something, or, or he was gonna blow, blow—
PRESIDENT: Then, who did it? Dean? That’s what worries him.
HALDEMAN: No. Then what happened was, the only, see they knew ovér there that the only money there was that was useable was this 350,000.
PRESIDENT: Who’s they, who’s they?
HALDEMAN: LaRue and Mitchell.
PRESIDENT: Okay.
HALDEMAN: And so, Mitchell said, “You’ve got to use that MONEY.” So, 1 said, “Turn the whole thing back to ’em. We don’t want the money anyway. Give just enough, I’ve been looking for a way to get rid of it.” I’ll admit I was, I was worried about this, this money. I wanted to get it back into the, where it belonged. Uh, so, so, he gave it back to them, and they wouldn’t take, Mitchell wouldn’t let them take it back, but he did say “You’ve got to use some of it.” So Dean told Strachan, who was the guy that had the
PRESIDENT: Yeah.
HALDEMAN: ... the physical possession to give X thousand dollars to LaRue. So, Strachan would go and open his safe, take out X thousand dollars and, and go trudging over to LaRue’s, and, and this is all after the election, this is in the—
PRESIDENT: After the election?
HALDEMAN: Yeah, on the, yeah, and this in—
PRESIDENT: Oh, after the election.
HALDEMAN: Yeah. And he would go over and give LaRue .
PRESIDENT: Yeah.
HALDEMAN: ... X thousand dollars and, and, we can certainly claim that, that Strachan had no knowledge of what that was for — he was carrying out Dean’s instructions; that Dean was carrying out instructions from me; and you’ve gotta prove it for me. And my point there was, it’s their money, give it back to ’em, give it all back to ’em. So we were giving—
Tape Tr. 245-246 (emphasis added). See also Tr. 6688-6689 (testimony of Fred LaRue).
. We also reject the argument that appellant believed the statement to be true. Haldeman br. at 77. “[A] belief as to the falsity of testimony may be inferred by the jury from proof of the falsity itself.” Young v. United States, supra note 185,
.In its entirety, Haldeman’s Requested Jury Instruction No. 26 read as follows:
COUNT EIGHT
With regard to Count Eight of the Indictment which charges Mr. Haldeman with perjury, your attention is directed to the portions of Mr. Haldeman’s testimony before the Senate Select Committee which is set forth in paragraph 4 thereof, particularly that part wherein Mr. Haldeman is alleged to have falsely quoted former President Nixon as follows: “The President said ‘there is no problem in raising a million dollars, we can do that, but it would be wrong.’ ” This alleged quotation forms the basis for Count Eight.
If you find that Mr. Haldeman did not purport to quote former President Nixon at the date, time and place alleged in Count Eight, then you should find Mr. Haldeman nоt guilty of the offense charged in Count Eight. Otherwise, you should apply to Count Eight the instructions on perjury which I have heretofore given you.
J.A. 711.
. As to appellant’s brief in the truthfulness of his statements, see note 189 supra.
. July 30, 1973:
I was present for the final 40 minutes of the President’s meeting with John Dean on the morning of March 21. Whilte [sic] I was not present for the first hour of the meeting, I did listen to the tape of the entire meeting.
Following is the substance of that meeting to the best of my recollection.
* * * * * *
*324 He [Dean] also reported on a current Hunt blackmail threat. He said Hunt was demanding $120,000 or else he would tell about thé seamy things he had done for Ehrlichman. The President pursued this in considerable detail, obviously trying to smoke out what was really going on. He led Dean on regarding the process and what he would recommend doing. He asked such things as— “Well, this is the thing you would recommend? we ought to do this? is that right?” and he asked where the money would come from? how it would be delivered? and so on. He asked how much money would be involved over the years and Dean said “probably a million dollars — but the problem is that it is hard to raise.” The President said “there is no problem in raising a million dollars, we can do that, but it would be wrong."
July 31, 1973:
Senator Baker. . . What I want to point out to you is that one statement in your addendum seems to me to be of extraordinary importance and I want to test the accuracy of your recollection and the quality of your note-taking from those tapes, and I am referring to the last, next to the last, no, the third from the last sentence on page 2, “The President said there is no problem in raising a million dollars.. We can do that but it would be wrong.”
Now, if the period were to follow after “We can do that”, it would be a most damning statement. If, in fact, the tapes clearly show he said “but it would be wrong,” it is an entirely different context. Now, how sure are you, Mr. Haldeman, that those tapes, in fact say that?
Mr. Haldeman. I am absolutely positive that the tapes—
Senator Baker. Did you hear it with your own voice?
Mr. Haldeman. With my own ears, yes.
Senator Baker. I mean with your own ears. Was there any distortion in the quality of the tape in that respect?
Mr. Haldeman. No, I do not believe so. * * * * * #
Senator Ervin. Then the tape said that the President said that there was no problem raising a million dollars.
Mr. Haldeman. Well, I should put that the way it really came, Mr. Chairman, which was that Dean said when the President said how much money are you talking about here and Dean said over a period of years probably a million dollars, but it would be very hard — it is very hard to raise that money. And the President said it is not hard to raise it. We can raise a million dollars. And then got into the question of, in the one case before I came into the meeting making a statement that it would be wrong and in other exploration of this getting into the — trying to find out what Dean was talking about in terms of a million dollars.
Senator Ervin. Can you point — are you familiar with the testimony Dean gave about his conversations on the 13th and the 21st of March with the President?
Mr. Haldeman. I am generally familiar with it, yes, sir.
Senator Ervin. Well this tape corroborates virtually everything he said except that he said that the President could be — that the President said there would be no difficulty about raising the money and you say the only difference in the tape is that the President also added that but that would be wrong.
Mr. Haldeman. And there was considerable other discussion about what you do, what Dean would recommend, what should be done, how — what this process is and this sort of thing. It was a very — there was considerable exploration in the area.
Indictment, Count 8, ¶] 4, J.A. 141-143 (emphasis in original).
. Although Haldeman objects to the use of quotation marks around this statement in the indictment, contending that they improperly give the impression that he was quoting (and not paraphrasing) the President, we find them unobjectionable. In the indictment, the quotation marks do not begin after the phrase “The President said,” but rather before it. See note 190 supra. This makes clear the fact that what the indictment is indicating as a quotation is Haldeman’s statement from his prepared addendum, and not the President’s statement.
. We also reject Haldeman’s claim of prejudice arising from the prosecutor playing for the jury segments of a video-tape of Haldeman’s appearance before the Committee. Given Haldeman’s argument that he was paraphrasing and not quoting the President, the value of the video-tapes in casting light on this problem far outweighed any prejudice.
. See note 192 supra for the more complete colloquy.
. If a requested instruction is in any respect incorrect, the denial of such a request is not error. United States v. Billingsiey,
. If the trial judge has included in his charge to the jury accurate instructions on a particular issue, it is not error to refuse to repeat substantially the same or a different statement of the same principles of law in the language submitted by counsel. Agnew v. United States,
.Williams v. United States,
It is the duty of a trial court to instruct the jury on general principles of law applicable to the facts of a case. It is not required to include in its charge what is not applicable law nor to give instructions or outline all possible factual situations which would establish one’s innocence of the crime charged. In the giving of instructions there is necessarily a wide range of discretion vested in the trial judge who must clearly and accurately state the rules of law by which the jury is to be guided in its deliberations. He is not bound to adopt the appellant’s theory of the case or effect to be given any particular part of the proof. Cf. Nelson v. United States,97 U.S.App.D.C. 6 ,227 F.2d 21 ,53 A.L.R.2d 1206 (1955); Jones v. United States,251 F.2d 288 (10 Cir. 1958).
. In Bronston a witness in a bankruptcy proceeding was being questioned by a creditor’s lawyer:
Q. Do you have any bank accounts in Swiss banks, Mr. Bronston?
A. No, sir.
Q. Have you ever?
A. The company had an account there for about six months, in Zurich.
Q. Have you any nominees who have bank accounts in Swiss banks?
A. No, sir.
Q. Have you ever?
A. No, sir.
. The court instructed the jury:
You should also remember, with regard to the second essential element [falsity] what I told you previously, that a statement is not false if it is literally true and technically responsive. If a statement, or a reasonable interpretation of a statement, made by a Defendant is narrowly or literally true, there can be no violation of this statute.
Tr. 12391. The court also followed Bronston in instructing on the false declaration counts. Tr. 12386.
. Senator Gurney, a member of the Senate Select Committee, asked appellant Haldeman the following question:
Do you recall any discussion by Dean about Magruder’s false testimony before the Grand Jury?
Appellant made the following reply, the italicized sentence constituting the charge of perjury:
There was a reference to his feeling that Magruder had known about the Watergate planning and break-in ahead of it, in other words, that he was aware of what had gone on at Watergate. I don’t believe there was any reference to Magruder committing perjury-
indictment, Count 9, [¶] 4, J.A. 145.
. Tr. 8688-8689, 9147-9151.
. See note 189 supra.
. We also reject the further argument of appellant that Senator Gurney’s question was not intended to seek the answer which is claimed to be perjurious, but rather sought to discover “whether Dean and Magruder had conferred about Magruder’s testimony before the grand jury prior to his appearance there.” Haldeman br. at 92. However, the question was plain on its face and the jury has determined it was answered falsely. The Senator’s later questions do not change this; had appellant answered truthfully, the later questions might well have taken a different direction.
. See, e. g., Tr. 5827 (“ * * * I can’t see that you are going to charge the Secret Service with intercepting those conversations just because they had custody of those tapes. They didn’t play them.”); Tr. 5828 (“Although Secret Service did, as I understand it, they were more or less custodians of the tapes after the conversations were had and they protected the tapes according to regulations, I take it, so there is no interception there unless you infer from the custody of the tapes they listened to the tapes or something like that, and that isn’t in evidence anyway.”); Tr. 5839 (“Where has the interception occurred? I mean here you have completed reels of tape put in a box and kept in the custody of the Secret Service.”).
. See note 205 supra. It is hard to see how, once the oral and wire communications had been intercepted by the taping system, the spot-checking of the tapes could constitute an interception of the communications themselves. Moreover, such inspection fell within the reasonable contemplation of those who authorized (and thereby consented to) the installation of the system, and was so limited that the agents did not even listen to full conversations.
. That Butterfield’s testimony may technically have been hearsay is of no significance, see pp. 330-331 of 181 U.S.App.D.C., pp. 107-108 of 559 F.2d infra, and no objection was raised at the hearing.
. Although we believe this prior testimony of Mr. Haldeman could appropriately be considered by the District Judge in making his ruling, we decline the Government’s invitation to consider testimony subsequently given by Haldeman during the criminal trial itself as support for the prior decision to admit the tapes. This later testimony largely duplicates the earlier testimony in the Nov. 8, 1973 hearing and is unnecessary to support the trial judge’s finding. We do note, however, that the Government’s suggestion is problematic. First, it is a bootstrap argument. Had the tapes not been introduced, Haldeman might have made a tactical decision not to testify. It is, therefore, somewhat circular to justify introduction of the tapes by referring to testimony that might never have been given were the tapes not admitted. Second, appellants’ counsel had no notice that Haldeman’s testimony at trial was to be used to justify admission of the tapes. Had the defense been informed of that fact, it might have raised objections before the judge which, for strategic reasons — such as not highlighting particular testimony — were not pressed before the jury. Finally, there is no assurance that the judge would have credited the testimony had it been considered in relation to the question of admissibility.
. Appellants’ reliance upon Rumely v. United States,
. Sometimes the reel did not require replacement. The routine in such a case was for the Secret Service agents to “take the box associated with that reel of tape and note the date that [the reel was checked] and * * * indicate on the [sic] counter reading, the little index counter on the tape recorder.” Tr. 5672; accord, Tr. 5702.
. The notation of counter markings, see note 210 supra, was also useful in locating particular conversations. Tr. 5778-5779.
. Appellants claim that one of the tape recordings did not correspond with Dean’s recollection. The tape in question, Feb. 27, 1973, was not introduced in evidence. Dean had previously testified to the Senate Select Committee that three statements were included in that conversation which did not subsequently turn up on the transcript of the tape-recorded conversation. Dean indicated that he could not be sure that those statements had been made on Feb. 27 rather than in other conversations occurring at roughly the same time. Tr. 3505-3508, 3514, 3534-3537. We cannot see any basis to draw the inference that that recording was tampered with merely from a witness’ care not to overstate the clarity of his recollection of the contents of the conversation.
. Because all of the challenged excerpts purport to be statements or observations of the declarants themselves, rather than repetition of other out-of-court declarations, the objection to the admission of these excerpts must be based on the firsthand knowledge and opinion rules, rather than on a claim that these hearsay declarations among co-conspirators contain a second layer of hearsay. See C. McCormick, Handbook of the Law of Evidence § 10, at 20-21 (Cleary ed. 1972).
. It is noteworthy that Mitchell’s reply brief makes no attempt to refute the Government’s position and presents no further argument along these lines.
. The rationales for exempting admissions from these rules are several. The inapplicability of the opinion rule rests upon the modern recognition that this rule is one of preference for concrete testimony rather than one of exclusion; since there is no opportunity to interrogate an out-of-court declarant at the time of his declaration to obtain more concrete testimony, application of the rule is inappropriate. C. McCormick, supra note 213, § 264, at 632-633. As to the firsthand knowledge rule, the rationale for exempting admissions is that those which become material in litigation ordinarily pertain to a matter of some importance to the declarant as to which he is likely to have taken steps to obtain reliable information. Id. § 263, at 632. And, as to both rules, the exemption for out-of-court admissions reflects the likelihood that a party (or, in the case of co-conspirators, someone whose statement is attributable to a party) has important information that may be unknown to his opponent. Id.
. Compare the old saw: “I don’t lie because my memory isn’t good enough.”
. The following exchange, which directly followed a discussion on the subject of Watergate strategy, reflects the extent to which Ehrlich-man and Haldeman and President Nixon— whose conversations constitute the great bulk of the tape recordings that were introduced into evidence — were involved in planning strategy on “Watergate”:
EHRLICHMAN: Oh, no. I was working on something I’ll tell you about here.
PRESIDENT: What did you do?
EHRLICHMAN: Uh, well, not much last night.
PRESIDENT: You mean another subject?
EHRLICHMAN: Oh, no. No, this—
HALDEMAN: There is no other subject. (Laughs)
EHRLICHMAN: This week there’s no oth- . er subject.
PRESIDENT: Yeah.
Tape Tr. 348.
. See Tape Tr. 51, 318, 588, 642-644.
. Mitchell also objects to the admission of hearsay declarations of co-conspirators on the theory that any conspiracy of which he was a member had ended by March of 1973, at which time Nixon, Ehrlichman, Haldeman, and Dean were considering a plan to make Mitchell the “fall guy.” He alleges that this activity constituted a second conspiracy, of which he was not a member, and hence the excerpts pertaining to it could not be admitted against him under the co-conspirator exception to the hearsay rule.
Although the only document in the Joint Appendix in which Mitchell objects to the admissibility of certain portions of the tapes does not mention this argument, J.A. 606-611, his counsel appears to have made this argument orally on at least one occasion, Tr. 3320. The District Judge, however, ruled the tapes admissible over this objection. We believe that there was no error in his finding sufficient evidence of a single and continuing conspiracy of which Mitchell was a member to permit the jury to listen to the excerpts in question. As the Government argues, the abortive plan to have Mitchell step forward to take the blame was compatible with the conspiracy’s central objective — to cover up any information that might embarrass the Nixon White House. When some information began to become public, it was logical and foreseeable that the conspirators would next try to limit the number of people whom that information might implicate, and having Mitchell assume the blame was one way to limit the vulnerability of others. But even then Mitchell was to be given veiled assurances of clemency if he agreed to go along with the plan. Perhaps most important, when this plan was not executed Mitchell remained a loyal member of the conspiracy in his later appearances before the grand jury and the Senate committee. Finally, there was no evidence that Mitchell made any attempt whatsoever to withdraw from the conspiracy. Thus there was ample evidence — independent of the tape recordings themselves — to support the existence of a single conspiracy to which Mitchell belonged and which extended into the summer of 1973.
. See, e. g„ Tape Tr. 64, 82, 86, 123, 131-132, 135, 146, 189-190, 195, 245, 265, 267, 325, 350-351, 391, 458-459, 480-481.
. For reasons stated at pp. 126-127 n.200 of the Government’s brief, we find no prejudicial error in the prosecution’s summation before the jury.
. For example, appellant’s argument that the trial court erred in not instructing the jury that the perjuries before the Senate Select Committee were not part of the “means” of the conspiracy, Haldeman br. at 119, is incorrect in that Count 1, ¶ 15(d) of the revised indictment specifically alleges that “[t]he conspirators would give false, misleading, evasive and deceptive statements and testimony” as one of the means of carrying out the conspiracy. This general allegation was sufficient to support the admission of the testimony before the Senate Committee and the instruction thereon as given.
. Direct Sales Co. v. United States,
We need not decide this issue, however, since Haldeman did not raise it at trial. Compare J.A. 714-715 (Haldeman’s requested instruction on specific intent) with J.A. 723 (Mardian’s requested instruction on intent). See Fed.R. Crim.P. 30. Nor can we find plain error here as required by Fed.R.Crim.P. 52(b), since the substance of the instruction was given. Moreover, it is questionable whether the court need instruct the jury on the necessity of finding both intents. On the facts of this case, the formative agreements to join were so wrapped up in the stated attempts to achieve the unlawful objects that the specific intent required for both phases of the conspiracy were clearly deducible from the same evidence. See 1 Wharton’s Criminal Law and Procedure § 85 (R. Anderson ed. 1957); cf. 1 E. Devitt & C. Black-mar, Federal Jury Practice and Instructions § 29.05 (1970); District of Columbia Bar Ass’n, Criminal Jury instructions for the District of Columbia 4.92 (2d ed. 1972) (hereinafter cited as D.C. Criminal Jury Instructions).
. D.C. Criminal Jury Instructions, supra note 223, No. 3.01.
. United States v. Moore,
. The main distinction between specific and general intent is the element of bad or evil purpose which is required for the former. Thus a person who knowingly commits an act which the law makes a crime may be said to have general intent, while the person who commits the same act with bad purpose either to disobey or disregard the law may be said to have specific intent. United States v. Moore, supra note 225,
To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids, (or knowingly failed to do an act which the law requires,) purposely intending to violate the law.
(Emphasis added.) This is not to say, however, that the accused must have known he was violating a specific statute, see United States v. Feola,
In the present case, the judge’s numerous references to the type of intent required all observe this distinction. The judge repeatedly told the jury either that they must find “specific intent,” Tr. 12367, 12370, 12372, 12378, or that they must find an “intent to commit the offense * * * which was the object of the conspiracy.” Tr. 12364 (emphasis added). See also Tr. 12366, 12367, 12371, 12378. In one place the judge did depart from this form and said, “If you find that a Defendant’s intent was innocent, you must find him not guilty. If you find that his intent was corrupt, you may find him guilty if you also find that the other elements of the offense have been proved beyond a reasonable doubt.” Tr. 12382-12383. But the judge defined “corruptly” as “having an evil or improper purpose or intent,” Tr. 12382 — i. e., as having specific intent.
. See citations to transcript in note 226 supra.
. Haldeman br. at 125, 132.
. Agnew v. United States,
We also disagree with Haldeman that the example used by the trial judge in charging the jury on the meaning of the term “corruptly” in Count 2 ignores completely the element of specific intent. Haldeman br. at 125-126. The allegedly improper statement, reproduced in full, is as follows:
The third essential element [of the crime of endeavoring to obstruct justice, charged in Count 2] focuses on the word, “corruptly.” The word, “corruptly”, as used in this statute simply means having an evil or improper purpose or intent.
In terms of proof, in order to convict any Defendant of obstruction of justice, you must be convinced beyond a reasonable doubt that the Defendant made some effort to impede or obstruct the Watergate investigation or the trial of the original Watergate defendants.
If you find, for example, that a Defendant participated in the payment of money to the original Watergate defendants for the purpose of keeping them quiet, you would be justified in finding that a corrupt endeavor to obstruct the due administration of justice occurred.
Tr. 12382 (emphasis added). Haldeman’s argument apparently is that the italicized phrase might have given the jury the impression that they could convict without a finding of specific intent — that is, after finding only that a defendant had acted with the purpose of keeping one of the Watergate burglars “quiet,” without finding the further evil purpose of impeding the Watergate investigation. See note 226 supra. Such an argument makes no sense in light of the second paragraph quoted above (immediately preceding the example to which objection is made) and in light of the definition of “corruptly.” See note 226 supra.
. Haldeman br. at 126. See Tr. 12387-12388; Tr. 12392.
. For a discussion of the distinction between the two concepts, see note 226 supra.
. You may consider any statement made, an act done or omitted by a Defendant and all other facts and circumstances in evidence which indicate his state of mind. You may infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted.
Tr. 12369 (emphasis added).
. I have already explained in detail what specific intent means. However, let me remind you that you should consider all of the circumstances in evidence that you deem relevant in determining whether the Government has proved beyond a reasonable doubt that a Defendant acted with the required specific intent.
Tr. 12407.
. Gallion v. United States,
. D.C. Criminal Jury Instructions, supra note 223, No. 3.02:
Intent ordinarily cannot be proved directly, because there is no way of fathoming and scrutinizing the operations of the human mind. But you may infer as to the defendant’s intent from the surrounding circumstances. You may consider any statement made and act done or omitted by the defendant, and all other facts and circumstances in evidence which indicate his state of mind. You may infer that a person ordinarily intends the natural and probable consequences of acts knowingly done or knowingly omitted. However, you should consider all of the circumstances in evidence that you deem relevant in determining whether the Government has proved beyond a reasonable doubt that the defendant acted with the required intent.
.
. Cohen v. United States,
. In Moore, we found no reversible error in the use of this instruction even though the phrase “knowingly done or knowingly omitted” was not included.'
. See Fed.R.Crim.P. 52(b).
. Cohen v. United States, supra note 237; United States v. Releford, supra note 237; Armstrong v. United States,
. See note 235 supra.
. Comment, D.C. Criminal Jury Instruction No. 3.02, supra note 223.
. Compare note 232 supra with note 235 supra.
. See note 238 supra.
. D.C. Criminal Jury Instructions, supra note 223, No. 4.92
* * * * * *
In determining whether a conspiracy existed, you should consider the actions and declarations of all of the alleged participants. However, in determining whether a particular defendant was a member of the conspiracy, if any, you may consider only his own acts and statements. He cannot be bound by the acts or declarations of other participants unless and until it is established that a conspiracy existed, and that he was one of its members.
******
See also 1 E. Devitt & C. Blackmar, supra note 223, at § 29.05.
. Glasser v. United States,
. Courts are split on the question of who is to make this preliminary determination. Some courts require the jury to determine the defendant’s membership in the conspiracy beyond a reasonable doubt based solely on independent proof before proceeding to consider the co-conspirator’s evidence. United States v. Donner,
. See United States v. Donner, supra note 247,
. All references in this section are to the revised version of the indictment that went to the jury, which appears at J.A. 113-154.
. COUNT TWO
The Grand Jury further charges:
1. From on or about June 17, 1972, up to and including the date of the filing of this indictment, in the District of Columbia, and elsewhere, JOHN N. MITCHELL, HARRY R. HALDEMAN, JOHN D. EHRLICHMAN, CHARLES W. COLSON, KENNETH W. PARKINSON and GORDON STRACHAN, the DEFENDANTS, unlawfully, willfully and knowingly did corruptly influence, obstruct and impede, and did corruptly endeavor to influence, obstruct and impede the due administration of justice in connection with an investigation being conducted by the Federal Bureau of Investigation and the United States Attorney’s Office for the District of Columbia, in conjunction with a Grand Jury of the United States District Court for the District of Columbia, and in connection with the trial of Criminal Case No. 1827-72 in the United States District Court for the District of Columbia, by making cash payments and offers of other benefits to and for the benefit of the defendants in Criminal Case No. 1827-72 in the United States District Court for the District of Columbia, and to others, both pri- or to and subsequent to the return of the indictment on September 15, 1972, for the purpose of concealing and causing to be concealed the identities of the persons who were responsible for, participated in, and had knowledge of the activities which were the subject of the investigation and trial, and by other means.
(Title 18, United States Code, Sections 1503 and 2.)
. In any case, the prejudice to appellants from the reference to the conspiracy during the court’s charge on Count 2 would be minimal, since, as Haldeman admits, the court could have instructed the jury that any defendant found to be a member of the conspiracy under Count 1 could be found guilty under Count 2 for the obstructive acts of his co-conspirators committed during the course of and in furtheranee of the conspiracy. Pinkerton v. United States,
. Since the case of Mardian is the subject of a separate opinion, nothing here said relates to the conspiracy charge against him.
. See Defendants’ Joint Motion for a Bill of Particulars (filed May 1, 1974), at Count 1, ¶¶ 6, 11, 20, Overt Acts, ¶¶ 7, 8.
. 18 U.S.C. § 371 provides:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do
any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
If, however, the offense, the commission of which is the object of the conspiracy, is a misdemeanor only, the punishment for such conspiracy shall not exceed the maximum punishment provided for such misdemeanor.
. The court gave a clear instruction on the meaning of “defrauding the United States”:
Very simply, it means to deprive the Government of its right to have the officials of its departments and agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty and obstruction.
Tr. 12377. See also Tr. 12379-12383 on the obstruction charge.
. 18 U.S.C. § 1503 provides:
Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States commissioner or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States commissioner or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testifying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, commissioner, or other committing magistrate in his person or property on account of the performance of his official duties or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
. The arguments addressed in this section of the сourt’s opinion were raised in Haldeman’s brief and incorporated by reference in the briefs of Ehrlichman and Mitchell.
. In this respect a defendant’s Fifth Amendment right to indictment by a grand jury intersects the Sixth Amendment right “to be informed of the nature and cause of the accusation” in criminal prosecutions.
. See note 250 supra.
. The general rule that indictments in the language of the statute are permissible does not apply where the statute omits an essential element of the offense, United States v. Carll, 105 U.S. (15 Otto) 611,
.The phrase to which Haldeman objects is in the last paragraph of the trial court’s charge to the jury on Count 2:
*347 Similarly, if you find beyond a reasonable doubt that a defendant knowingly and willfully approved or participated in some other corrupt activity, such as making offers of leniency, clemency or other benefits, making false statements to the FBI, making false statements under oath to the grand jury, misusing the FBI or CIA, or other such activity, you may find that defendant guilty on Count Two if you also find beyond a reasonable doubt that his purpose was to influence, obstruct or impede the due administration of justice.
(Emphasis added.)
. As the Second Circuit recently stated in United States v. Tramunti,
An indictment need only provide sufficient detail to assure against double jeopardy and state the elements of the offense charged, thereby apprising the defendant of what he must be prepared to meet. Under this test, an indictment need do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crimes * * *.
(Citation omitted.)
On the sufficiency of indictments alleging obstruction of justice in the language of 18 U.S.C. § 1503, see Parsons v. United States,
. In United States v. Debrow,
. Similarly, the defendants made no specific exception to the trial court’s instruction to the jury that activities involving the CIA could be considered under Count 2 — an instruction which we find perfectly valid but which Haldeman now seeks, for the first time on appeal, to assign as error. See Fed.R.Crim.P. 30.
. Judge Weinfeld distinguished the indictment in Aiayo from that in United States v. Pope,
. This development has substantially reduced the threat of double jeopardy for all defendants. 1 C. Wright, Federal Practice and Procedure § 125 at 233 (1969); Note, Indictment Sufficiency, 70 Colum.L.Rev. 876, 885 (1970).
. See note 259 supra.
. 18 U.S.C. § 1951 (1970).
. Like appellants, the dissent does not challenge the sufficiency of the evidence to convict under Count 2. Specifically, the dissent concedes, as it must (see Govt. Ex., Tape 2-7; Tr. 6123-6126, 2730-2738, and 6610), that the trial record contains substantial evidence of appellants’ attempts to misuse the CIA to obstruct justice. It argues, however, that this evidence was admissible only under Count 1. The reasoning appears to be that since evidence of misuse of the CIA does not directly involve Parkinson — who was indicted but not convicted on Count 2 — the grand jury did not intend to include misuse of the CIA among the “other means” alleged in that count. In other words, the dissent contends that, under Count 2, the naming of Parkinson and the allegation of misuse of the CIA were mutually exclusive.
This argument only exposes the poverty of the dissent’s position. It requires reasoning of the most sophistic sort to allow the validity of the convictions of three defendants to turn on conjecture as to the intent of the grand jury concerning evidence about a fourth defendant who was ultimately acquitted on each count with which he was charged.
In Count 2 the defendants were charged with endeavoring to obstruct justice by making cash payments and offers of other benefits and by other means. The grand jury may have included Parkinson because of the evidence of his participation in cash payments and offers of other benefits. But whatever the reason, it does not lead to the conclusion, asserted by the dissent, that the grand jury did not intend to include misuse of the CIA among the means alleged in Count 2.
. See Part XI-C-1 supra.
. Even if there had been some variance in the proof as to Count 2, it is useful to remember that
[ijn every case of variance it can be argued that the grand jury that returned the indictment as is might not have been willing to return the indictment with the variance. This possibility can never be conclusively eliminated as a matter of abstract logic. Whether there is a reasonable possibility of prejudice, however, should be determined*352 with some reference to the real world of juries and grand juries, and the realm of common sense which must guide the administration of the criminal law and rules of criminal procedure. * * *
Jackson v. United States,
.As we stated in Jackson v. United States:
A court may readily perceive a plausible possibility of prejudice in the contention that a federal grand jury willing to indict an extortioner for his interference with an existing stream of interstate commerce might very well have been unwilling to bring him to the dock for a situation, however grievous, which had no federal implication except in terms of a potential interference with a future line of interstate commerce.
. See note 278 infra.
. Section 144 provides:
Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias or prejudice either against him or in favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such proceeding.
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists, and shall be filed not less than ten days before the beginning of the term at which the proceeding is to be heard, or good cause shall be shown for failure to file it within such time. A party may file only one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.
. At the time § 455 provided:
Any justice or judge of the United States shall disqualify himself in any case in which he has a substantial interest, has been of counsel, is or has been a material witness, or is so related to or connected with any party or his attorney as to render it improper, in his opinion, for him to sit on the trial, appeal, or other proceeding therein.
See note 284 infra.
. In addition to § 144 and then § 455, the motion invoked the fair-trial right, secured in federal prosecutions by U.S.Const. amend. V, as a basis for disqualification. Since in our view anything impinging on that right would have more readily violated § 144 or § 455, we do not consider the constitutional implications per se.
. “If the Calendar Committee finds that good cause exists for the transfer, it shall cause the case to be reassigned by lot.” D.D.C.R. 3-4(d)(1).
. Defendant Charles Colson, the charges against whom were dropped after his plea of guilty in another case, was a joint movant. Defendant Gordon C. Strachan, whose case was later severed for trial and ultimately dismissed, filed a separate motion and affidavit on substantially the same grounds. Defendant Kenneth Wells Parkinson, who ultimately was acquitted, joined in both motions. Appellants Haldeman and Mardian did not participate in the effort.
. The second affidavit was Strachan’s. See note 278 supra.
. United States v. Mitchell,
. Mitchell v. Sirica,
. See note 281 supra.
. The proponents of disqualification are, once again, Ehrlichman and Mitchell. At no time have Haldeman or Mardian urged Judge Sirica’s recusal.
. At the outset, we call attention to two considerations to be borne in mind as our decision on this facet of the appeals is read. The first is that 28 U.S.C. § 455 (1970) was amended in 1974 to the point of virtual repeal and supplanted by a different text. Pub.L. No. 93-512, 93d Cong., 2d Sess., 88 Stat. 1609. See infra. The amending act expressly provided that it “shall not apply to the trial of any proceeding commenced prior to the date of this Act * * 88 Stat. 1610. The indictment upon which appellants were tried was returned on March 1, 1974, and the trial began on the following October 1. It follows that the new version of § 455, which became effective on Dec. 5, 1974, has no application to these cases.
The second matter is the role projected by the complaining appellants, both in the District Court and here, for the Code of Judicial Conduct promulgated by the American Bar Association in 1972, which superseded the earlier Canons of Judicial Ethics. In April 1973 the Judicial Conference of the United States accepted the Code for federal judges with slight change, resolving that “[t]he adoption of the Code will not abrogate or modify any conflicting provisions of statutes or resolution of the Conference,” and, with an exception not relevant here, that “[t]o the extent that any part of the * * * statutes [enumerated in the resolution] or Conference action is less restriсtive than the Code, the latter will control.” Report of Proceedings of the Judicial Conference of the United States 10 (Apr. 5-6, 1973). The resolution’s enumeration of statutes so affected includes the pre-1974 version of 28 U.S.C. § 455 (1970), which undoubtedly was much less restrictive than the Code, id. at 11; indeed, amended § 455 substitutes the provisions of Canon 3C of the Code, with two modifications, for the older text. The enumeration does not include 28 U.S.C. § 144 (1970), however, seemingly because the call in Canon 3C(l)(a) of the
At several points the argument for disqualification of Judge Sirica seeks support in the Code, which the proponents equate with disqualification statutes and which the Government treats as precatory. Since we later conclude that no violation of the Code is indicated here, we do not enter the debate.
. The Government informs us that its position was simply a preference for a definitive resolution of the disqualification issue before trial. It explains that it did not anticipate pretrial appellate scrutiny of Judge Sirica’s ruling on the petition for mandamus, text supra at notes 281-282, and was amenable to decision of the question by the Calendar Committee “since the considered judgment of the three-judge panel would be given the heaviest weight on appeal from conviction in a protracted and important case.” Government’s Response to Petition for Writ of Mandamus at 9.
. See, e. g., United States v. Grinnell Corp.,
. Berger v. United States,
. See note 275 supra. See also MacNeil Bros. Co. v. Cohen,
. United States v. Mitchell, supra note 280,
. See Green v. Murphy,
. See note 311 infra and accompanying text.
. Berger v. United States, supra note 287,
. As summarized by the District Court, a resume we deem accurate,
defendants have noted an extensive variety of events. In both affidavits defendants quote at length although not always in context, from the record in United States v. Liddy et al., D.D.C.,354 F.Supp. 217 , tried by the Court in January, 1973. The statements proffered as facts, claim that the Court expressed a belief that criminal liability extended beyond the seven persons there charged; regarded motivations of those defendants as a crucial issue in the case; questioned defendants entering guilty pleas and witnesses*355 concerning their involvement and that of others; expressed disbelief at some of the answers given; read colloquy and testimony occurring out of the jury’s presence to the jury; suggested persons whom the prosecutors might consider calling before the grand jury investigating “Watergate”; expressed the hope that the Senate Select Committee on Presidential Campaign Activities would finally resolve matters treated in the case; used provisional maximum sentences to force the cooperation of convicted defendants in the case with investigating authorities; observed, following the statements of one defendant to the effect that others were involved in “Watergate,” that it had done the right thing in asking questions at trial; and finally, presided at final sentencing despite the motion of some defendants for disqualification. The affidavits further comment upon the Court’s acquaintance, via subsequent proceedings, with evidence potentially relevant to the instant case. The specific instances cited include Court custody of White House documents submitted by John W. Dean, III, copies of which were delivered to the Senate Select Committee on Presidential Campaign Activities and federal prosecutors by the Court; acceptance of a sealed packet from the Special Prosecutor said to contain evidence relating to defendant Strachan; a Court conference with columnist Jack Anderson following publication by Mr. Anderson of grand jury minutes; Court examination of White House tape recordings produced in October, 1973, pursuant to grand jury subpoena; and examination by the Court of materials contained in a report of the June 5, 1972 grand jury filed March 1, 1973, and later forwarded to the House Judiciary Committee. Mention is made as well of the fact that the Court entered an order conferring immunity from prosecution under Title 18 U.S.C. § 6002 on defendant Strachan, compelling the defendant, over his objection, to testify before the Senate Watergate Committee; that the Court has conferred similar witness immunity upon other persons who may testify in this action; that the Court has received the guilty pleas of and will sentence three persons likely to testify herein; and that the Court has met privately on at least two occasions with members of the Watergate Special Prosecution Force.
United States v. Mitchell, supra note 280,
. See note 274 supra.
. Craven v. United States,
. United States v. Grinneli Corp., supra note 286,
. The complaining appellants contend vigorously for a wholly objective test of Judge Sirica’s conduct — in the classic formulation, whether “his impartiality might reasonably be questioned.” That, verbatim, is the standard which new § 455(a) sets, by adoption of Canon 3C(1) of the Code of Judicial Conduct, and complete fidelity to that principle is vital. “[Tjo perform its high function in the best way ‘justice must satisfy the appearance of justice.’ ” In re Murchison,
Most of the activities relied upon were exercises of judicial functions. Viewed in their individual contexts, we do not consider them improper when they occurred, nor is it argued that they were. Should the appearance-of-impropriety standard be woodenly applied to work a judge’s disqualification because of earlier legal adjudications entirely proper when made, the result would be truly amazing. As one judge has stated,
[i]f the words “impartiality might reasonably be questioned” and “avoid impropriety and the appearance of impartiality” were to be interpreted to encompass judicial rulings in the course of a trial or other proceeding, then there would be almost no limit to disqualification motions and the way would be opened to a return to “judge shopping”, a practice which has been for the most part universally condemned. Certainly every ruling on an arguable point during a proceeding may give “the appearance of” partiality, in the broadest sense of those terms, to one party or the other.
Lazofsky v. Sommerset Bus Co.,
For a long time before enactment of new § 455(a) in 1974, the judicial understanding of § 144 and old § 455 was that they were to be confined in operation to extrajudicial conduct or conditions. See note 296 supra and accompanying text. Nothing we have observed in the legislative history of new § 455(a) suggests that this construction was to be overturned. The Fifth Circuit has concluded that new § 455(a) is to be similarly interpreted, Davis v. Board of School Comm’rs,
Some activities charged to Judge Sirica, of course, are not of that character. Those, we think, when separately examined in their individual contexts, do not reasonably generate a question as to impartiality.
. See note 296 supra, and note 301 infra.
. Berger v. United States, supra note 287,
. United States v. Grinnell Corp., supra note 286,
Merely because a trial judge is familiar with a party and his legal difficulties through prior judicial hearings * * * does not automatically or inferentially raise the issue of bias * * *. “A mere showing of prior judicial exposure to the present parties or questions will not invoke the section.”
United States v. Beneke,
. As Chief Judge of the District Court during the pretrial era of these cases, Judge Sirica had supervisory responsibility over grand jury matters. See, e. g., In re Grand Jury Subpoena,
. “A judge cannot be disqualified merely because he believes in upholding the law, even though he says so with vehemence.” Baskin v. Brown,
. Compare, e. g., Offutt v. United States, supra note 297, with United States v. Grinnell Corp., supra note 286,
. App. 193.
. App. 193. It will be recalled that somewhat later the defendants were unable to persuade Judge Sirica to remove the situs of the trial from the District of Columbia.
. See Code of Judicial Conduct, Canon 3A(6) (1972).
. See note 274 supra.
. See note 274 supra.
. See United States v. Womack,
. E. g., United States v. Womack, supra note 309,
. Hodgson v. Liquor Salesmen’s Local 2,
. Action Realty Co. v. Will,
. Berger v. United States, supra note 287,
. Berger v. United States, supra note 287,
. See text supra at note 304.
. See Hodgson v. Liquor Salesmen’s Local 2, supra note 311,
. See text supra at note 305. Compare Tucker v. Kerner,
. See text supra at note 311.
. The television interview took place on March 18, 1974, only slightly more than two weeks after the indictment in this case was returned.
. As a member of the Judicial Conference, Judge Sirica was in attendance. It goes without saying that the interview was no part of the Conference program.
. United States v. Mitchell, supra note 280,
. Id.
. Id.
. Id.
. Id.
. See text supra at notes 294-296. Compare United States v. Board of School Comm’rs,
. Judge Sirica’s statements are to be viewed in their full context. Wolfson v. Palmieri, supra note 296,
. See note 319 supra.
. See text supra at note 322.
. E. g., United States v. Grinneli Corp., supra note 286,
. See text supra at note 323.
. See United States v. Grinneli Corp., supra note 286,
. United States v. Grinneli Corp., supra note 286,
. See cases cited supra note 330.
. See text supra at note 314.
. See text supra at note 275.
. See note 275 supra.
. See note 284 supra.
. App. 192 (footnote omitted).
. App. 192-193. The affidavit alleges, inter alia, Judge Sirica’s cooperation in the preparation of Time Magazine’s cover story of Jan. 7, 1974, featuring him as “Man of the Year;” allowance of media sketch artists into his chambers; and the 70th birthday party and television interview to which we have adverted (text supra at notes 304, 305). App. 193.
. Understandably, Judge Sirica responded to the personal-interest theory. He said:
Defendants apparently draw from [the] circumstances [alleged] a conclusion that the Court has developed a personal stake in the conviction of defendants at bar, and relies upon such convictions for some form of “vindication.” Defendants conjecture on this point is wholly inappropriate. The Court feels no need for vindication of any sort and seeks none. The Court’s sole interest here, as always, is a professional interest in the proper administration of justice. There is nothing in the alleged facts propounded by the defendants to reasonably support a con'trary conclusion. In fact, their own reference to public reports and comment which both praise and assail the Court for the same action, reveals the fallacy of looking to public opinion for “vindication.” Defendant’s [sic] argument lacks any merit whatsoever.
United States v. Mitchell, supra note 280,
. “Judge Sirica’s palpable search for truth * * * was not only permissible, it was in the highest tradition of his office as a federal judge.” United States v. Liddy, 166 U.S.App. D.C. 95, 109,
. The instances referred to by the complaining appellants are Illinois Scientific Devs., Inc. v. Sirica,
. The litigation was United States v. Ammidown,
. The case was Haldeman v. Sirica, supra note 301.
. See note 275 supra.
. By Judge Sirica’s count, there were at least 45 such instances between mid-1968 and April 30, 1974. United States v. Mitchell, supra note 280,
. United States v. King,
. Fed.R.App.P. 21(b).
.Id.
. See note 275 supra. Disqualification of a judge was mandatory, in the language of old § 455, when “he has a substantial interest, has been of counsel [or] is or has been a material witness.” E. g., Laird v. Tatum,
. E. G., In re Grand Jury Investigation,
. Nor does it appear that the interest denied sitting judges by the Code of Judicial Conduct and the present § 455(b) — which embody the widest restraints on judges’ activities thus far devised — is so broad. See 28 U.S.C. § 455(b)(4), (5)(iii), (c), (d)(iv) (Supp. V 1975); American Bar Association, Code of Judicial Conduct, Canon 3C(l)(c), (d)(iii), (2), (3)(c) (1972); E. Thode, Reporter’s Notes to Code of Judicial Conduct 63-67 (1973).
. Compare note 297 supra.
. We are advertent to the decision in Rapp v. Van Dusen,
. The situation here differs radically from that presented in Texaco, Inc. v. Chandler,
. See note 275 supra.
. See cases cited supra note 288.
. This standard of review follows inescapably from the fact that old § 455 made disqualification, on account of relation to or connection with a party or attorney, a question or propriety to be resolved by the involved judge “in his opinion.” See cases cited supra note 288. “[T]he statute made the judge himself the sole decider of the substantiality of interest or of the relationships which would be improper and lead to disqualification.” S.Rep. No. 93-419, 93d Cong., 2d Sess. 2 (1973); H.R.Rep. No. 93-1453, 93d Cong., 2d Sess. 2 (1974), U.S. Code Cong. & Admin.News 1974, pp. 6351, 6352. And while the new § 455 substitutes “an objective test, it is not designed to alter the standard of appellate review on disqualification issues. The issue of disqualification is a sensitive question of assessing all the facts and circumstances in order to determine whether the failure to disqualify was an abuse of sound judicial discretion.” S.Rep. No. 93—419, 93d Cong., 2d Sess. 5 (1973); H.R.Rep. No. 93-1453, 93d Cong., 2d Sess. 5 (1974), U.S.Code Cong. & Admin.News 1974, p. 6355. Accord, Davis v. Board of School Comm’rs, supra note 297,
.Judge Sirica felt that he had “an obligation to deny insufficient recusal motions.” United States v. Mitchell, supra note 280,
[wjhile the proposed legislation would remove the “duty to sit” concept of present law, a cautionary note is in order. No judge, of course, has a duty to sit where his impartiality might be reasonably questioned. However, the new test should not be used by judges to avoid sitting on difficult or controversial cases.
*363 At the same time, in assessing the reasonableness of a challenge to his impartiality, each judge must be alert to avoid the possibility that those who would question his impartiality are in fact seeking to avoid the consequences of his expected adverse decision. Disqualification for lack of impartiality must have a reasonable basis. Nothing in this proposed legislation should be read to warrant the transformation of a litigant’s fear that a judge may decide a question against him into a “reasonable fear” that the judge will not be impartial. Litigants ought not have to face a judge where there is a reasonable question of impartiality, but they are not entitled to judges of their own choice.
Id. (emphasis in original).
Concurrence in Part
(concurring in part and dissenting in part):
My views concur with those expressed in the majority opinion, in which I have participated, except with respect to the issues of pretrial publicity and the convictions on Count 2.
PRETRIAL PUBLICITY
If ever in the history of our country there was a criminal case which by law had to be transferred to another place for trial because of prejudicial pretrial publicity a lone, this is that case. When this case was before us prior to trial, I stated that the venue should have been changed to some place other than the District of Columbia. I adhere to that position. The trial court here denied a timely pretrial motion for change of venue and in so doing denied defendants one of their most basic constitutional rights — the right to a fair trial. Under the rule that this court ordinarily applies we should therefore reverse the convictions and grant a new trial.
The majority opinion in this case applies a double standard that results in denying the defendants a right which the Constitution and the Supreme Court have secured to all criminal defendants in United States federal courts, the right to have their request for a change of venue determined by the federal standard. The majority goes on to make an inadequately thin and erroneous analysis of the question of whether the publicity in the Washington, D.C. area was so exceptionally overwhelming on its face as to require changed venue at defendant’s request. Finally, in exploring the question of whether the jury candidates reflected actual bias, the majority, with no depth of analysis, erroneously evaluates the voir dire proceedings.
I. THE CRIMES AND THE RESPONSIBILITY OF THE COURT
The crimes for which the appellants are convicted are flagrant. The convictions encompass callous disregard of duty, in some cases sworn duty, to our country. Our era is as perilous as any in our country’s brief history, and the crimes in this case paralyzed our executive branch, denying us national leadership in an era when leadership was vitally needed.
The duty of this federal court is to apply the federal criminal law, as secured under the Constitution and laws of the United States, to the cases of the appellants. The very system of laws which were betrayed in the crimes charged must not be manipulated to obtain convictions in this particular case. Such manipulation is a disservice. It can in the end harm our Republic in the same manner as the acts that created this case in the first place.
The men here have exactly the same rights as any other defendants indicted in federal court, neither more nor less.
A. The Scope and Duration in General
The majority gingerly refers to the pretrial publicity in these terms:
the pre-trial publicity in this case, although massive . . . (Majority opinion at 284 of181 U.S.App.D.C., at 61 of 559 F.2d)
and,
Without attempting to deny that the pretrial publicity, in this case was extraordinarily extensive . . .. (Majority opinion, note 34)
These allusions, very substantially understated as they are, are all the majority has to say on the scope of the publicity. They border on casualness. They shut out the truth.
Actually, the pretrial publicity in this case is unequivocally unique in American history. Its duration and level of sustained media attention from June 18,1972, the day after the arrests following the Watergate break-in, to May 1, 1974, the date of the appellants’ first motion for changed venue (Docket entry 56), swelling in an ever increasing crescendo, admits of comparison only with the media coverage for outbreaks of war. Indeed, the sustained daily coverage accorded this case on television and in newspapers finds parallel in recent memory only with the daily coverage of the war in Vietnam.
The crush of publicity was unprecedented, from the opening build-up at the Senate hearings, through the Presidential preimpeachment proceedings, and continuing up to the time of the beginning of the instant trial. This opinion is not concerned with subsequent publicity because it could not affect the sequestered jury. Statistical findings on the extent of the national publicity are not in the record, and do not yet appear to be available in thе literature.
B. The Level of Coverage in Washington, D.C.
The record here discloses a great volume of clippings from the papers in the Washington, D.C. area and a set of anecdotal comments. These materials suffice to make the point even though national statistics were not available. The Appendix submitted by Mr. Parkinson in an additional change of venue motion on May 1, 1974, contains selected clippings principally from the Washington Post, the Washington Evening Star and Daily News, and the New York Times for the period June 18, 1972, to May 1, 1974, and comprises four boxes (Docket entry 84, Appendix A, Folders 1-37). It can be conservatively estimated that that submission alone contains over 50,000 column inches from the Washington Post and the Washington Evening Star and Daily News of pretrial publicity. This is an average of some SO to 120 column inches per day, day in and day out, for the Washington, D.C. area from Washington, D.C. papers alone.
The Watergate Special Prosecutor himself says flatly:
No group of prosecutors and supporting personnel ever have labored under greater public scrutiny.
Watergate Special Prosecution Force Report 1 (1975). And,
By the time of Archibald Cox’s appointment as Special Prosecutor, “Watergate” had become the major journalistic event in the nation.
Id. at 227. With respect to the non-newspaper and non-broadcast record alone he states:
*365 approximately a quarter of a million pages of Watergate facts already exist for public consumption. This material includes the public hearings and published reports of the Senate Select Committee on Presidential'Campaign Activities and the House Judiciary Committee, other existing and forthcoming reports of Congressional committees, the voluminous records of the criminal trials resulting from [the Watergate Special Prosecution Force’s] investigations, evidence obtained in several civil suits, and numerous books and articles analyzing the events of “Watergate” from a variety of perspectives.
Id. at 2.
The majority opinion at footnote 34 states that:
we note that appellants’ submissions overstate the amount of publicity by including, apparently, every story concerning the many difficulties of the last years of the . Nixon administration, whether or not those stories discussed appellants. We also note that the overwhelming bulk of the publicity dealing with the conspiracy related to information properly brought out at trial.
But the essential point is that the amount of pretrial publicity that did discuss these cases has never before been equalled. The coverage in Washington, D.C. by Washington papers alone, without considering the additional tally of television and radio coverage, worked as an indivisible whole, casting “All the President’s Men” as criminals. The implication from the majority, that the individual reader does not link publicity in such a manner, is contrary to fact. The effect of the mass of publicity is indivisible. The majority’s apparent suggestion that “conspiracy related information” is the only relevant information is also incorrect. The cumulative effect of the publicity was inexorably to create a poisoned body of public opinion of massive proportions particularly in the District of Columbia, from which the jury was drawn.
Moreover, with respect to so-called “conspiracy related information” significant portions of such information did not come into the trial. For example, Washington newspapers made the following statements about Watergate matters in the April 19 to May 18, 1973 period alone:
“. . . breaking the rules of decent political competition — paying youngsters to infiltrate opposition headquarters, corrupting them to pretend . . . .” (Haldeman App. 2-3)
“ ‘. . . Honesty and following those orders [from Haldeman and Ehrlichman]., were inconsistent.’ ” (Haldeman App. 4) “. . . nothing the President’s men would not do to promote Mr. Nixon’s interests. . . . There lies the logic of the sabotage campaign
. .” (Haldeman App. 6)
“. . . lie and cheat and corrupt the institution of government . . . .” (Haldeman App. 7)
“. . . Mardian used government gum shoes to stake out my house and tail me . .” (Haldeman App. 16)
“. . . Mitchell tried in 1969 to influence a ruling from two Supreme Court justices in a set of wiretapping cases.” (Haldeman App. 21) “. . .He [Haldeman] stayed behind the scenes, using loyal aides to do the dirty work . . . .” (Haldeman App. 35)
“. . . elaborate, continuous campaign of illegal and quasilegal undercover operations conducted by the Nixon administration since 1969 . . . under the direct supervision of . . . H. R. (Bob) Haldeman, . John N. Mitchell and Robert C. Mardian . . .” (Haldeman App. 37-38)
“The Use of the Secret Service to obtain information on the private life of at least one Democratic presidential candidate in 1972.” (Haldeman App. 38)
“. . . possession of Sen. Thomas Eagleton’s confidential health records by Ehrlichman and the use of paid ‘vigilante squads’ by the White House and Justice Department to conduct illegal wiretapping, to infiltrate radical organizations for provocation and to conduct political espionage.” (Haldeman App. 40)
C. Comparison of Washington With Other Areas
Since appellants sought change of venue from Washington, D.C. on the basis of pretrial publicity, the first question is whether the coverage in Washington, D.C. was exceptionally heavy as compared to the rest of the country.
The record does not disclose data on television and radio coverage of Watergate, but it is probably accurate to assume that, roughly, the television and radio coverage of Watergate was at least as extensive in Washington, D.C. as elsewhere, particularly since much of the television coverage was on day-long nationally televised Senate hearings and evening news shows. If there is error in this assumption, it probably understates the coverage in the Washington, D.C. area.
The distinguishing factor thus becomes the newspaper coverage. The evidence is ample that the press coverage in Washington, D.C. was substantially heavier than elsewhere in the country. More importantly, there is no evidence or .analysis in the record or the majority opinion indicating that the newspaper coverage in the rest of the country was even roughly as extensive as it was in Washington.
The Washington Post stood at the center of the disclosure. It accorded massive coverage to Watergate. The Special Prosecutor notes the key role of the Washington Post. In writing of the events after Mr. Cox’s appointment to head the prosecution forces he says:
The Senate Select Committee hearings, which had begun a week earlier, were covered live daily by the major networks, enabling millions of Americans to witness the unfolding of the scandal. Inspired or embarrassed by the persistent investigative reports of the Washington Post, many reporters assigned to cover the affair scrambled frantically in the competition to discover and reveal new examples of executive branch misdeeds.
Watergate Special Prosecution Force Report 227 (1975). He also notes a reminder of the Washington Post’s exceptional vigor in digging into Watergate matters:
Fortunately, [the Watergate Special Prosecution Force] experienced very few suspected leaks. In August 1973, it was discovered that some information discarded as trash had made its way to the Washington Post. A shredder was purchased to prevent any such experience in the future.
Id. at 230.
More importantly, there is the evidence that the newspaper coverage a lone in Washington, D.C. stayed at an average level of 30 to 120 column inches a day, accumulating to a total of some 50,000 column inches for the entire 22 month period between disclosure of the break-in and the May 1, 1974 change of venue motion. The Government’s response to the motion (Docket No. 142) certainly offers no argument that the newspaper coverage elsewhere in the country was the same as in Washington, D.C. Judge Sirica, in his disposition of the motion, makes no suggestion that the coverage was the same (Hearing of June 12, 1974, Docket No. 180).
The most compelling evidence of the exceptional level of newspaper coverage in Washington, D.C. is the Sindlinger Affidavit, attached to the May 1, 1974, Change of Venue Motion (J.App. 284, Docket No. 56). The affidavit presents a public opinion survey that examined the question of pretrial publicity in the Watergate case. The affidavit is appended to this dissent as Appendix A. The survey results show, at pp. 401-402 of 181 U.S.App.D.C., at pp. 178-179 of 559 F.2d that Washington,
In thinking of your own opinions with regard to the guilt or innocence of the defendants in the cases we have been talking about — what do you think has most influenced you — what you have read in the newspapers or what you have read in magazines, or your own political position?2
In the nation as a whole and in the three other sampled areas, television was clearly the most influential factor. The validity of the poll has not been challenged. The methodology is set forth in the affidavit and speaks for itself. In its response to the change of venue motion, the Government said simply “. . . we do not find it necessary to take issue here with the study’s methodology . . ” (Docket No. 142 at 9).
Thus, even with the generous assumption that television and radio coverage in Washington was at the national average, the effect of the Washington newspaper coverage alone was far more substantial than elsewhere in the country.
III. THE EFFECT OF THE WASHINGTON, D.C. PUBLICITY AS OF MAY 1, 1974
The venue question poses the additional and central issue of the effect of the publicity as of the time of the change of venue motion. There are two factors that were evident in the record as presented to the District Judge on May 1, 1974.
The first factor is that the coverage of the case in Washington, D.C. alone far exceeded the coverage elsewhere in the nation. This alone called at least for inquiry into the comparison of Washington, D.C. coverage with coverage in other parts of the United States. Neither the District Court nor the Government initiated such an inquiry.
The second factor before the Judge was the result of just such an inquiry, which was set forth in the survey described in the Sindlinger Affidavit (Appendix A). The sample population was drawn from those responding that they were registered to vote, and therefore eligible to serve on a jury in their area. 93% of the Washington, D.C. population was found to know of the indictments. 73% of those people were found to have an opinion of guilt or innocence — a proportion 15% more than the corresponding national average and 23% more than in one other sampled area, closeby Richmond, Virginia. Moreover, the proportion of the total Washington, D.C. population that thought the appellants here to be in fact guilty was about 61% (84% of 73%), significantly higher than the corresponding national average of about 43%. (75% of 58%, Appendix A at 402 of
This result was especially favored because of the conclusion that fairly leaps from the survey results in the Sindlinger Affidavit: much of the entire country already thought the appellants guilty. At the very least a court would be expected to remove the trial from a locale where 61% of the populace had concluded guilt to a locale where only 43% or less had so concluded; there must have been many such locales, since the national average was 43% (Appendix A at 6). In Richmond, Virginia, only 37V2% considered that defendants were guilty. (75% of 50%, id.) This was not a situation where many had not heard of the case, or where many had no conclusion one way or the other. Here, on the face of an unrefuted and apparently accurate poll, most people in Washington, D.C., some 61%, in their own minds had already completed the trial and returned a verdict of guilty, while only some 2% of the city had formed an opinion of innocence. (Id. at 6). The appellants’ plea was not to go where most residents had not heard of the indictments or had not formed some opinion, for their evidence disclosed no such place. The plea was to go to a place where where less than one-half the potential jurors had formed an opinion that they were guilty, with the rest withholding judgment.
It was possible for the Judge to travel with this case; any conviction he may have had as to the necessity that he preside need not have been violated.
IV. THE LEGAL STANDARDS
In weighing the foregoing evidence on pretrial publicity, the District Court and this court are required to apply the law that governs the change of venue question. The law on the matter is established in four categories. First, there is the law applicable to federal cases, as set by the Supreme Court and the Circuit Courts of Appeals under their supervisory power over the District Courts, and, in the case of the Supreme Court, over the Circuit Courts of Appeals as well. Second, there is the law applicable to all courts, state or federal, under the Constitution. Within each of these two categories there is a division between two types of venue-change decisions for pretrial publicity. One is the category in which prejudice to the defendant is found to exist presumptively, because of extraordinary circumstances of coverage. The second is the category in which, although prejudice cannot be declared presumptively, the voir dire of prospective jurors discloses sufficient prejudice to warrant changed venue. This produces the four categories of analysis: (1) federal and (2) constitutional, and (3) presumptive and (4) actual.
The case law establishing these categories is clear-cut. There is a federal supervisory standard, in addition to a constitutional standard, in these eases, which would assure fair trials by an application of the rule of presumptive prejudice or through identification of actual prejudice. This is made clear in Marshall v. United States,
The defendant in Marshall was convicted of dispensing certain drugs without a prescription. In the course of the trial seven of the jurors were exposed to various news accounts relating that Marshall had previously been convicted of forgery, that he and his wife had been arrested for other narcotics offenses, and that he*369 had for some time practiced medicine without a license. After interviewing the jurors, however, the trial judge denied a motion for a mistrial, relying on the jurors’ assurances that they could maintain impartiality in spite of the news articles.
Noting that the jurors had been exposed to information with a high potential for prejudice, this Court reversed the conviction. It did so, however, expressly “[i]n the exercise of [its] supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts,’’ and not as a matter of constitutional compulsion. Id., at 313 [79 S.Ct. at 1173 ],
The Court in Murphy was addressing itself to the constitutional standard applicable to state trials. The Court went on to survey the scope of the constitutional standard, as opposed to the federal supervisory standard:
Petitioner relies principally upon Irvin v. Dowd,366 U.S. 717 , [81 S.Ct. 1639 ,6 L.Ed.2d 751 ] (1961), Rideau v. Louisiana,373 U.S. 723 , [83 S.Ct. 1417 ,10 L.Ed.2d 663 ] (1963), Estes v. Texas,381 U.S. 532 , [85 S.Ct. 1628 ,14 L.Ed.2d 543 ] (1965), and Sheppard v. Maxwell,384 U.S. 333 , [86 S.Ct. 1507 ,16 L.Ed.2d 600 ] (1966). In each of these cases, this Court overturned a state court conviction obtained in a trial atmosphere that had been utterly corrupted by press coverage.
In Irvin v. Dowd . . . the Court readily found actual prejudice against the petitioner to a degree that rendered a fair trial impossible.
Prejudice was presumed in the circumstances under which the trials in Rideau, Estes, and Sheppard were held. . In Rideau the defendant had “confessed” under police interrogation to the murder of which he stood convicted. A 20-min-ute film of his confession was broadcast three times by a television station in the community where the crime and the trial took place. In reversing, the Court did not examine the voir dire for evidence of actual prejudice because it considered the trial under review “but a hollow formality” — the real trial had occurred when tens of thousands of people, in a community of 150,000, had seen and heard the defendant admit his guilt before the cameras.
Id. (emphasis added).
The federal supervisory standard provides broader protection against prejudice than the constitutional standard. Concurring in Murphy, supra, Mr. Chief Justice Burger wrote:
I agree with Mr. Justice BRENNAN [dissenting] that the trial judge was woefully remiss in failing to insulate prospective jurors from the bizarre media coverage of this case and in not taking steps to prevent pretrial discussion of the- case among them. Although I would not hesitate to reverse petitioner’s conviction in the exercise of our supervisory powers, were this a federal case, I agree with the Court that the circumstances of petitioner’s trial did not rise to the level of a violation of the Due Process Clause of the Fourteenth Amendment.
. if this case arose in a federal court, over which we exercise supervisory powers, I would vote to reverse the judgment before us.
Recently, an opinion by Judge Bazelon emphasized that federal appellate courts have the duty to impose supervisory standards over criminal cases, United States v. Pinkney,
The foregoing makes three unequivocal points. First, there is a category of presumptive prejudice to which a federal supervisory standard applies. Second, that standard assures a defendant more protection against prejudicial pretrial publicity
. persons who have learned from news sources of a defendant’s prior criminal record are presumed to be prejudiced.
Murphy v. Florida,
V. APPLICATION OF THE STANDARDS
A. The District Court
The District Court disposed of the question of presumptive prejudice at the June 12, 1974, motions hearing. In doing so it did not distinguish between a federal and a constitutional standard, and it did not examine or attempt to apply the law of presumptive prejudice.
THE COURT: Now you are talking about change of venue, where would you suggest the case be sent to for trial? Do you know of any place in the country?
MR. BOYER [Mr. Spencer Boyer, for Mr. Ehrlichman]: Any place other than the District of Columbia, Your Honor.
THE COURT: What do you mean by anyplace other than the District of Columbia? Alexandria — across the river?
MR. BOYER: No, Your Honor.
THE COURT: Where?
MR. BOYER: What we are asking for is of course that would depend on several things. That would of course be determined by this Court. That would also depend upon the calendar of the other districts. We would be willing to assist the Court in any manner to find out any district which would be out of the immediate environs of the District of Columbia to see whether or not their calendar could accommodate a trial of this length, complexity, and scope.
THE COURT: Now let’s talk about some highly publicized cases that have been tried in the country. Let’s go back many years, probably before your time, the trial of Richard Hauptman, involving the kidnap of the Charles Lindberg baby in New Jersey. I remember the trial very well, highly publicized. Of course in those days we didn’t have radios to the efficiency we have now, or television. We had newspapers, frontpage story everyday all over the country.
Senator Kennedy was killed out in California, a highly publicized case. The Manson trial. Recently I had two murder trials here that I presided over, highly publicized for weeks — the Ammidown case, one of the most brutal murder-rape cases ever tried in the history of our court, or probably any court in the country; and the Lee case, a companion case. Now the test is going to be whether or not after voir dire examination by the Court you can obtain, you can empanel a jury say under oath not only having read or heard or listened to matters concerning the case that they could decide this case on the evidence and the law of the case. It comes down to that.
Tr. June 12, 1974 (Docket No. 180) at 431-33 (emphasis added). The final sentences reveal that the District Court intended no examination at all to determine if the amount and nature of the presumptive prejudice violated the supervisory standard applicable in federal courts. And in fact it did not indulge in any such examination.
Later in the hearing the District Judge showed again that presumptive prejudice was not a consideration:
We have 800,000 people approximately living in the District of Columbia. And if we can get a jury — and this is going to be the test in my opinion — [which] can truthfully say they have heard some parts of those hearings but have not formed an opinion from what they heard or read, or heard commentators talk about, they can truthfully say they can sit on this case even though it may be a protracted case and could render a verdict after all the evidence is in, based on the evidence and law of the case, render a verdict based solely upon the evidence and law of the case. Until we try that out how is a judge going to determine on the arguments that have been made, the Court’s knowledge of prior sensational*371 cases that have been tried in the country, protracted cases there and here, we have had many of them right in this district, how are you going to know whether you can get a jury unless you tried first?
Now, if you try as I have indicated and you can’t get them, that is one thing. If we are able to empanel an unbiased jury that is another thing. How are you going to know unless you try? I would like to hear you on that.
MR. BOYER: Your Honor, as I indicated earlier, that several of the cases and several of the imperical [sic] studies, for example, the Broader Study on Voir Dire Examinations and Imperical [sic] Study, and in fact the ABA standards which I quoted earlier, recommend that the Court strongly protect the defendant before the trial, not to place too much emphasis on the whole concept of voir dire, especially where there has been the pervasive publicity as that as has been engendered by this particular case.
The problem with voir dire is that it is going to be very difficult, especially here in the District of Columbia, to determine whether the juror is consciously or subconsciously harboring prejudice against the defendants because of the widespread media.
The Court earlier asked me a series of questions as to what was the distinction between some of the more celebrated eases where there was not a change of venue and this particular case. So I may submit to the Court that the circumstances Mr. Green has indicated, that this is an unprecedented case, these are as Your Honor earlier indicated, the personal friends and aides of the President, and this has been an on-going saga of more than two years whereas in many of the cases that you referred to there were but in a moment — in the Ammidown ease and the Lee case, even though they were celebrated cases here in the District of Columbia — nowhere and by no stretch of the imagination'—
THE COURT: —how about the case I tried which took me ten months to try? The longest case ever tried in the history of this court since 1801. It got quite a lot of publicity, incidentally. It was a civil antitrust suit against all the major railroads in the country and was publicized pretty well. It was not a murder case. We got a jury in that case and the jury sat eight months.
MR. BOYER: May I submit to the Court we are dealing with apples and oranges.
THE COURT: Wait a minute. Let me ask you a question. Do you suppose everybody that listens to radio and television commentators pro and con, everybody, or the majority of the people, have made up their mind that President Nixon is wrong in this whole matter or anyone of these defendants are all wrong and that they are guilty of things? Don’t you think there are millions of people in this country now at this moment think the President has done nothing wrong and done everything according to his duties? And vice versa many other people might think otherwise. And about any of these defendants that have been highly publicized. Don’t you think there are millions of people that do not believe they done anything wrong?
MR. BOYER: Your Honor, those millions of people don't live here in the District of Columbia.
Id. at 435-37 (emphasis added). The Sindlinger Affidavit demonstrates the truth of the last observation.
The “ABA standards” referred to in the foregoing exchange are at ABA Standards Relating to Fair Trial and Free Press 119-28 (Approved Draft) (1966). The commentary therein reviews the pre-Murphy-Rideau cases and succinctly states the error of the District Judge’s approach in this case.
The judicial attitude has taken the form of great deference to the discretion of the trial judge, even when there is evident dissatisfaction with his decision, of equating the ability to impanel a jury with the absence of any need for other relief, and of insisting that the defendant establish actual prejudice on the part of virtually the entire community.
A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court’s own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.
Id. at 119 (emphasis added). In commentary, the ABA authors wrote:
As shown by such cases as People v. Martin [19 App.Div.2d 804,243 N.Y.S.2d 343 (1st Dep’t 1963)], Delaney v. United States [199 F.2d 107 (1st Cir. 1952)], and Rideau v. Louisiana [373 U.S. 723 ,83 S.Ct. 1417 ,10 L.Ed.2d 663 (1963)], there are occasions when the inherently prejudicial nature of the material, coupled with knowledge of its wide dissemination in the community, requires the granting of relief without elaborate soundings .of community sentiment. In such instances, change of venue may be particularly appropriate when it can be shown that the news coverage has been far less pervasive in some other locality within the jurisdiction.
Id. at 126 (footnotes omitted).
As to the opinion poll, the District Judge says simply, “You know polls can be wrong too. We remember the famous election when Governor Dewey ran against President Truman. ... I have great faith in the jury system.” (Docket No. 180 at 437) (emphasis added). But this statement reflects categorical rejection without consideration of the Supreme Court rule on presumptive prejudice. In light of Murphy and Marshall the law is now that presumptive prejudice is a factor that must be examined in venue decisions. The District Court therefore committed reversible error in declining even to consider the factor. If the federal standard for presumptive prejudice exists at all, it requires the trial court to recognize the possibility of presumptive prejudice. Further, on the facts of this case, the presumptive prejudice existing in the District of Columbia, which is demonstrated by Appendix A and the newspaper clippings, mandated a change of venue to a more favorable venue.
B. The Majority Opinion
The majority opinion states:
We believe, however, that it is inappropriate to attempt to formulate a supervisory power standard for concluding that a fair jury cannot be selected.
Majority opinion at 285 of 181 U.S.App. D.C., at 62 of 559 F.2d. The Supreme Court, however, has formulated a supervisory standard in venue matters. The present Chief Justice and Mr. Justice Marshall and Mr. Justice Clark have so written.
The reasoning of the majority opinion turns on the notions that identifying and applying such a standard would be hard to do (Majority opinion at 285-286 of
It is true that voir dire is potentially a valuable tool for discovery of prejudice, but that observation is irrelevant to the issue of whether a supervisory or constitutional standard is to apply in weighing the information on prejudice. Also, as held in Marshall, supra, there are cases in which voir dire is pointless. Further, the trial could not help but tend to be more fair if the venue were laid where only 37*/2% of the
As to the standard, the court here is simply walking away from its duty. The majority thus whisks the law away at whim.
The appellants here are criminal defendants in federal court. They have a right to be judged by federal standards — the same as all other federal defendants. Federal judges have a sworn duty to apply federal standards, as denominated by the Supreme Court, to the facts of this case. The federal judges here have not done so. No consideration whatsoever has been given to the existence of potential prejudice above the bare minimum constitutional obligation.
VI. THE LAW APPLIED TO THE MAY 1, 1974 MOTION
The task of this court is to apply the federal supervisory standard for presumptive prejudice to the facts of this case.
A. The Remedy
The first step in analysis is to clarify the precise remеdy and to identify its costs. The remedy was not delay. It was not a continuance. It did not entail additional national agony in delaying the trial and its resolution. The remedy was simply for the trial to be held in practically any place other than Washington, D.C. Moreover, the District Judge was not barred from himself travelling with the case and trying it. The interests of the country in a prompt trial and supervision of a fine judge were simply not at stake. To say that they were is to completely evade the law as to change of venue. The fact is that had such change of venue been made, the issue of the fairness of the trial, on the venue point, would have been completely obliterated from the case. Why the Government and the trial court would want to hazard a criminal trial in which the evidence of guilt was as strong as it was here by insisting on trial in a. jurisdiction where presumptive prejudice existed to the extent that it did here, defies reason. Delay and the selection of the judge were not issues, and the issue of possible additional trial costs in the new venue was not raised (Docket Nos. 142,180).
The Government had absolutely nothing to lose by trying the case in a community where presumptive prejudice was at a minimum, and to say that it did have something to lose is to admit that the case should have been transferred.
A factor that compelled use of the simple venue safeguard in this case was that the United States Senate had expressly chosen to televise its hearings in spite of the Watergate Special Prosecutor’s request, out of concern for defendants’ fair trial rights, that there be no television coverage. The Senate reported:
The committee’s interest in televised hearings was not to obtain publicity for publicity’s sake. The facts which the committee produced dealt with the very integrity of the electoral process; they were facts, the committee believed, the public had a right to know. Most citizens are not able personally to attend the working sessions of their Government. Although thousands of people spent short periods in the Caucus Room during the hearings, these visitors represented only a small percentage of the electorate. Thus, it was desirable that every citizen be able to view the hearings, if not in the Caucus Room, then in his home or place of business. The ability to read about the hearings in the printed media was not sufficient. The full import of the hearings could only be achieved by observing the witnesses and hearing their testimony.
It was for this reason that the committee opposed the efforts in Federal court of Special Prosecutor Cox to proscribe television and radio coverage of the testimony of Magruder and Dean. The Special Prosecutor’s expressed concern was that public hearings might prejudice future criminal trials. It was the committee’s position that they would not, but, even if they did, it was more important in*374 this period of crisis and national concern that the full facts be promptly made known. The public should not have to wait a year or more until the Watergate trials were over to know the scope of the corruption in its Government.
S.Rep. No. 93-981, 93d Cong., 2d Sess. XXXI-XXXII (1974) (emphasis added). This statement speaks for itself and indicates that the Senate hearings were unconcerned with the prejudice they might cause to future criminal trials. Given this decision, and the nationally televised and printed coverage it created, simple fairness commanded that the trial be located in some community where there lay a minimum prejudgment of guilt.
One other element of cost should be explicitly stated. It is the cost now, in 1976, of reversing the convictions for a retrial of these cases where the Government’s evidence is massive. The cost includes reopening old wounds. The cost may also include public exasperation and disillusionment. The cost certainly would include the dollar outlays for a new trial. But the existence of the federal supervisory rule requires such disposition and the only court in this land that can alter the existing rule is the Supreme Court of the United States. The law is otherwise clear, and this court is bound to apply it. Our constitutional guarantee of a fair trial includes the absolute right to an open-minded jury and, as the Supreme Court held in Stirone v. United States,
B. The Supervisory Standard and the Publicity in this Case
We know that the proposition in Marshall, a federal case, is that
. persons who have learned from news sources of a defendant’s prior criminal record are presumed to be prejudiced.
The Washington press commentary included substantial, unending vituperative statements, of which these were typical:
Honesty and following those orders [from Haldeman and Ehrlichman] were inconsistent.
He [Haldeman] stayed behind the scenes, using loyal aides to do the dirty work .
See p. 365 of 181 U.S.App.D.C., p. 142 of 559 F.2d, supra. The newspapers were saturated with adverse comments, political satire and cartoons, and even a comic strip attacked the defendants.
This was not a case in which the defendants were asking to go somewhere where the jury pool would represent a clean or neutral slate: it is a case in which they sought simply to go someplace where the smallest possible portion of the jury pool had concluded in advance that they were guilty.
Additional high dollar costs, delay, and change of judge were not involved.
In determining the proper applicability of the supervisory standard declared in Marshall, that case cannot be distinguished from this case on the basis that the jurors had improperly learned of a prior conviction of the defendant, instead of some other adverse information, because Rideau, which was a constitutional case, was reversed
The disclosure in Rideau involved a confession on television before some 106,000 viewers in three separate showings in a population of some 150,000, or nearly two thirds of the populace, assuming some small allowance for overlap in the audience among the three showings.
C. The Evidence from the Voir Dire
The majority opinion explores the voir dire that was actually held subsequent to the denial of the change of venue motion.
The voir dire confirms the conclusion from the evidence that the venue should have been changed at the beginning of the case, on the basis of presumptive prejudice.
The voir dire began with preliminary questions directed to groups of members of the venire, in order to explore such matters as reading the indictment, determining if any person on the venire knew participants in the trial or if they might tend to disbelieve a witness because the witness had pleaded guilty in another case, and to inquire into scheduling or medical difficulties that would prevent those on the venire from serving. Tr. 1-541.
The court then asked a standard set of questions of members individually. This individual questioning produced the panel of twelve that was ultimately charged with the case. Because of the importance of the context and sequence of this individual questioning, and as a typical example for ease of reference, the individual voir dire of one of the twelve jurors, John Hoffar (Tr. 928-49), is set out as Appendix B to this opinion. (Hereafter Hoffar Voir Dire. The other eleven jurors were Gladys Carter (Tr. 607-19), Roy Carter (Tr. 619-34), Ruth Gould (Tr. 832-51), Anita King (Tr. 1075-97), Marjorie M. Milbourn (Tr. 1172-1216), Vanetta M. Metoyer (Tr. 1216-29), Dock Reid (Tr. 1350-61), Jane M. Ryon (Tr. 1420-42), Thelma L. Wells (Tr. 1673-96), Sandra Y. Young (Tr. 1876-1901), and Helen D. Pratt (Tr. 1901-17).
1. The Role of Voir Dire and the Pacts of Rideau
The first and singular aspect of the voir dire is that it confirms the pervasiveness of the coverage of this case in Washington, D.C. The trial judge says flatly:
Think of it. The publicity that break-in got. I said, this is incredible.
Tr. 487 (emphasis added). And:
If anybody gets on the stand and tells me they never heard of this case or read about it, I will exercise a challenge for cause. That is how I feel about it.
Id. (emphasis added).
The heart of the problem thus created is encapsulated by the authors of the ABA
It has in many jurisdictions been common practice for denial of such a [change of venue] motion to be sustained if a jury meeting prevailing standards could be obtained. There are . . . difficulties with the approach . . . many existing standards of acceptability tolerate considerable knowledge of the case and even an opinion on the merits on the part of the prospective juror. And even under a more restrictive standard, there will remain the problem of obtaining accurate answers on voir dire — is the juror consciously or subconsciously harboring prejudice against the accused resulting from widespread news coverage in the community? Thus if change of venue and continuance are to be of value, they should not turn on the results of the voir dire; rather they should constitute independent remedies designed to assure fair trial when news coverage has raised substantial doubts about the effectiveness of the voir dire standing alone.
ABA Standards, supra p. 21, at 126 (emphasis added).
The indisputable fact in the majority’s own analysis of the voir dire is that the exposure of the venire and final jurors to prejudicial pretrial publicity in this case was at least as heavy as the exposure of the venire and final jury in Rideau. We already know, from the unrefuted record, that not only had well over two thirds (93%) of the entire Washington, D.C. population been exposed to the publicity, as in Rideau, but nearly two thirds thought the defendants guilty. The majority writes:
Appellants claim that 52% of the veniremen questioned individually had an inclination, “ranging in intensity from mere suspicion to absolute certainty,” toward a belief in guilt. Mitchell br. at 96. The Government maintains that only 8% of those questioned indicated an opinion of guilt that could not be set aside. In all, the Government identifies 29% of the venire as having had an opinion of appellants’ guilt and another 7% as possessing an “arguable predisposition against defendants.” Govt. br. at 243.
Majority opinion at 293 of
The most crucial evidence relates to the composition of the 12-man jury. Of the 12 members of the panel only three had seen the televised interview which had been shown almost two months before the trial. The petitioner does not assert, and the record does not show, that these three testified to holding opinions of petitioner’s guilt. They did testify, however, that they
“could lay aside any opinion, give the defendant the presumption of innocence as provided by law, base their decision solely upon the evidence, and apply the law as given by the court. As the judge stated in his per curiam: ‘They testified they could do so notwithstanding anything they may have heard, seen or read of the case.’ ” State v. Rideau,242 La. 431 , 462,137 So.2d 283 , 295.
* * * * * *
The determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge. And when the jurors testify that they can discount the influence of external factors and meet the standard imposed by the Fourteenth Amendment, that assurance is not lightly to be discarded.
2. The Futility of Voir Dire in this Case
The purpose of voir dire is to enable court and counsel to engage in a rational analysis of a potential juror’s attitudes regarding a ease. Conclusory and ultimate questions of the nature of “Are you unfairly biased in this case?” are next to useless in such an inquiry.
In the voir dire the trial court restricted its inquiry to what the candidate remembered in particular from the pretrial publicity:
THE COURT: Look, listen, all of you know I have been in this case — not this particular case, the so-called Watergate affair, since 1972, I think.
I heard and listened, I have known Mr. Mardian, Mr. Mitchell, favorably, Mr. Parkinson. I listened to some of the testimony and if you asked me under oath what did Mr. Mitchell say on a certain date, what did Senator Irvin [sic] say on a certain subject to him, I couldn’t conscientiously tell you under oath.
And I think that is the reaction of the average person. People soon forget. The old saying there is nothing staler than yesterday’s news.
Unless something particular comes out which stands out in a person’s mind, and I remember the incident of my good friend John Wilson about the Jap situation, that I remember. I will never forget that.
MR. WILSON: I wish you hadn’t mentioned that.
MR. FRATES: Again, for the record, Your Honor, we want to challenge that juror and all remaining jurors for cause on those grounds set out in our motion on the massive pretrial publicity. And may we have that as a standing objection to each one?
THE COURT: Yes.
Tr. 509-10 (emphasis added). As put to Juror Hoffar, the court’s question was:
Does anything you may have heard or discussed about this matter particularly stand out in your mind? Any one thing or several things?
Hoffar Voir Dire at 932 (emphasis added), Appendix B infra at 404 of 181 U.S.App. D.C., at 181 of 559 F.2d. As for the other jurors, to the same effect, see Tr. 610, 623, 836, 838, 1079, 1176, 1219, 1352, 1423, 1428, 1678, 1882, 1907.
In thus restricting its inquiry to particular instances, the trial court was helpless in the face of the permanent psychological impact that the whole of the absolutely unprecedented publicity in this case had in the Washington, D.C. area. Given the gigantic scale of the case, the years of publicity, and the inevitable blurring of the avalanche of detail, the restriction of inquiry to particular instances, although earnest and well-meant, was useless. What the court did not recognize was that people forget particulars but do form lasting general opinions and impressions.
Rudolf Flesch, author of Why Johnny Can’t Read, explains the futility of the trial court’s approach in The Art of Clear Thinking (Collier-MacMillan) 165-66 (1969):
During World War II, a team of psychologists studied the propaganda effect of orientation films. Among other things, they tried to find out whether films changed the opinions and attitudes of soldiers who saw them, and whether and how these changes lasted. They had a hunch that the effect of the films would gradually wear off and that after some time, soldiers would forget the factual details and revert to their original opinion.
This idea may seem rather obvious to you. It seemed obvious to the psychologists too — but, being scientists, they decided to test it anyway. So they gave the soldiers a test after one week and another test after nine weeks.
As expected, the soldiers had forgotten most of the facts in the film during those eight weeks. But, “clearly contrary to the initial expectation,” the general propaganda effect of the film — the opinion change —had considerably increased [emphasis in original] between the first and the second test. There was not the*378 slightest doubt about it: the soldiers had forgotten the details of the film but its message had sunk in deeper.
The research team cheerfully accepted this unexpected fact and immediately proceeded to account for it by a hypothesis. They found that it could be explained through a theory by the British psychologist, Bartlett, published in 1932. Bartlett had written that “after learning, that which is recalled tends to be modified with lapse of time in the direction of omission of all but general content and introduction of new material in line with the individual’s attitudes.” In other words, as time passes, we’re apt to forget details but reinforce [“reinforce” emphasized in original] what we remember of the general idea.
(Emphasis added). Thus, the circumstance that prospective jurors stated they could not recall particulars did not negate the strong possibility that they had formed and retained some general opinions about what they had seen and heard.
Given the record of the unequalled blanket press coverage and the Sindlinger Survey results, Judge Sirica’s vow to challenge any person disavowing knowledge of this case, and the jurors’ uniform affirmation of familiarity with the case (Tr. 610, 623, 836, 932,1079, 1176, 1219, 1352,1423, 1677,1881, 1907), there is no question that “learning” in the psychological sense had taken place. General and ingrained attitudes were all that remained. Not one of the jurors had any “particular” recollections, save for Jur- or Gould’s single recollection that the “tape part” was important (Tr. 610, 623, 836-51, 932, 1080, 1176, 1220, 1352, 1423,1678, 1882, 1907). In fact, in juror Milbourn’s case the exchange was:
THE COURT: Does anything that you may have heard or discussed about this matter particularly stand out in your mind that you can recall or do many things stand out?
JUROR MILBOURN: There is so much that I wouldn’t know.
THE COURT: You couldn’t recall one particular thing, is that correct?
JUROR MILBOURN: No.
Id. at 1176 (emphasis added). This demonstrates the fallacy of the court inquiring about particulars and refusing to ask what opinions were held.
And in Juror Ryon’s case:
THE COURT: Now, does anything you may have heard or discussed about this matter particularly stand out in your mind?
JUROR: (No response.)
THE COURT: Is there anything that stands out?
JUROR: I am sorry to say that I don’t really, you know, remember everything I heard.
Id. at 1423 (emphasis added). In none of the cases, not in Juror Gould’s, Milbourn’s, Ryon’s, or in any other juror’s case, was the response to the question of “particular” recollection followed up to learn what, if any, opinion they did hold, notwithstanding the defendants’ standing objection that some such effort be made. Without the data from such inquiry, defendants could not test the juror’s conclusory statement that he could try the case fairly.
Worse, the failure to inquire into what opinions the prospective jurors did hold gave free rein to the tendency of the jurors toward “omission of all” evidence,
This case is unique — every one of the actual jurors had been exposed to the pretrial publicity; most had witnessed the Senate hearings on television, but over time, of course the “particular” details faded in their minds. This being so, when the court limited its questioning to whether anything particular stood out, it deprived defendants of those tools for finding possible prejudice in the jury that would have been provided by a more penetrating voir dire. But this is only to say that this case is one involving presumptive prejudice, a category already defined by the law, and for which a simple and virtually costless remedy, timely re
3. Coaching By the Trial Court
Judicial notice may be accorded the fact that, once there has been a screening for those who cannot serve due to medical reasons or personal schedule, many persons on the venire wanted to be picked to serve. The desire is a natural and understandable one. The regular compilations of comments of jurors accumulated by the District Court in this circuit attest to this fact.
For this reason, however, and generally, the trial court should steer clear of giving the prospective juror leading suggestions of suitable answers to be given to accomplish that objective. The obvious first danger to avoid is to not tell a prospective juror the legal standard by which impartiality will be judged before the question itself is asked. The Hoffar Voir Dire is typical and instructive.
The trial court begins by reminding the juror, before the parties and counsel, that his or her selection is at issue:
This is ... to determine whether or not you have the qualifications to be selected to be on this jury .
Hoffar Voir Dire at 928-29, Appendix B infra at 402 of
Do you believe at this very moment, and without having heard any of the evidence . . . that any Defendant in this case is guilty . . .?
Id. at 930, Appendix B infra at 403 of
Now . . . I am going to question you as to what you heard or read about the case to decide if you can be qualified to serve .
Id. at 931, Appendix B infra at 403 of
. we would like to get a jury where each juror is able to put aside anything he or she may have read or heard and any opinion . . and decide . . . solely on the evidence and . . . instructions
Now, I want to be sure, and counsel on both sides want to be sure, that you can decide this case for yourself based solely from what you hear in this courtroom at the proper time.
Id. (emphasis added). And,
Now the Government and the Defendants in this case are entitled to have this case decided on its merits, that is, on the evidence presented in open Court and pursuant to the law as the Court will try to explain it to the jury at the end of the case. You must not be influenced, of course, by any events that transpire outside of the courtroom.
Id. at 938, Appendix B infra at 406 of
Later, of course, followed the Court’s question:
THE COURT: Does any reason whatsoever suggest itself to you at this time why if you are selected to serve on this jury you feel you could not listen to the evidence objectively and the testimony and at the proper time render or vote for a verdict or join in a verdict which will be based in your opinion solely upon the evidence that will be offered in open Court and the instructions on the legal principles involved of the law, in other words, applicable to the case?
JUROR HOFFAR: No, sir.
THE COURT: No reason whatsoever?
JUROR HOFFAR: None that I can think of offhand.
The defendants had objected to this technique:
MR. STRICKLER: I have one observation which I would like to make.
We are asking the jurors factual questions to elicit facts. I believe Your Hon- or has approached this by way of telling them that the law is in advance which, in effect, can suggest an answer to these jurors and on the subsequent groups that come in I would like to request the Court not to give them the law which may suggest an answer, but just go after the facts.
THE COURT: I will just have to use my own judgment and do what I think at the time is right.
I will keep your request in mind.
Tr. 537.
But the objectionable practice continued. Advertently or not, these preambles to key questions could only add to the possibility of biased, unrevealing, and conclusory responses. The voir dire was thus improper and unrevealing of critical attitudes. Certainly, with 93% of the venire having prior knowledge of the case (Appendix A at 401 of
4. The Trial Court’s Standard of Juror Neutrality
The standard of neutrality used in this case was stated by the trial court:
Does any reason whatsoever suggest itself to you at this time why if you are selected to serve on this jury you feel you could not listen to the evidence objectively and the testimony and at the proper time render or vote for a verdict or join in a verdict which will be based in your opinion solely upon the evidence that will be offered in open Court and the instructions on the legal principles involved of the law, in other words, applicable to the case?
Hoffar Voir Dire at 940, Appendix B infra at 406 of
In the June 12, 1974 hearing on the change of venue motion, the trial court pointed out how the voir dire was used in other highly publicized trials in which he participated. Supra, pp. 370, 371 of 181 U.S.App.D.C., pp. 147, 148 of 559 F.2d. Reference to still other notorious cases is instructive as to the use of an accurate and scrupulous test of neutrality. Perhaps no better example lies in our legal history than the trials resulting from the Teapot Dome Scandal.
Prior to the Watergate affair, the investigations and trials of the principals in the Teapot Dome Oil Scandal generally held the modern day American record for sustained interest and publicity. Of course, today, with television, wider radio reception, and the entire news media vying with each other in what has come to be called investigative journalism, the publicity resulting from the Watergate break-in, the trial of the participants, the Senate (Ervin) Investigating Committee, the House impeachment hearings, the resignation of the President, the issuance of a presidential pardon, and the subsequent indictment and trial of appellants has far exceeded that of Teapot Dome.
The present case, involving as it does high federal officials in a criminal trial with substantial political overtones and a tremendous amount of pretrial publicity are in those respects similar to the Teapot Dome trial of Albert B. Fall, Secretary of the Interior in the Harding administration (Fall
Secretary Fall was tried on a charge of bribery for allegedly receiving $100,000 from Edward L. Doheny to influence his decision in awarding the construction contract for certain oil storage tanks in Hawaii and for the delivery of “royalty oil” from Naval oil reserves to the corporation of which Mr. Doheny was president.
Without exception, the standard applied was whether the prospective juror had an opinion at the time he was examined that would take any evidence to set aside. If his mind was in that state he was excused by the court without any further argument.
The following references to the voir dire in that trial indicate the standards and interrogation procedures that were applied by the court, the defense, and the prosecutor in seeking an impartial jury. The first juror to indicate that he had an opinion was asked, “When you came into court today you did not have an open mind?” His reply was that it would take evidence to remove the opinion that he already had. He was thus, without more, challenged and excused (Tr. 12-13).
The next juror that indicated he had formed any prior opinion was asked whether he would “require evidence to remove that opinion” (Tr. 17), and when he indicated that he would he was excused. One juror who admitted to a “slight opinion” only, but who on further inquiry indicated that he would want “evidence to reverse” that slight opinion, was challenged and excused notwithstanding his assertion that he could lay aside that slight opinion. In contesting the challenge of this juror by the defense, one of the prosecutors, Mr. Roberts (later Justice Roberts), stated the standard he thought should be applied when he addressed a question to the juror, inquiring whether that juror could utterly lay aside any opinion formed tentatively at the start, listen to the case from start to finish, and form an opinion from the evidence and that only. The juror replied “I think so” (Tr. 47-48), but he was nevertheless stricken and excused by the court on the challenge of the defense because he had previously indicated it would take some “evidence to reverse” his opinion. Another juror who stated that he had heard about the case was asked whether he would go “into the jury box . . . with a clear mind” (Tr. 59). This is an entirely different standard from that used here of inquiring whether the venireman had a “fixed opinion” that would prevent him from following the court’s instructions “at the end of the case.”
Another venireman, who was excused, stated that he read quite a bit and formed an opinion, and he was asked whether he would be “starting afresh.” He replied “I would be going in with a little load on my shoulder.” When this situation developed, Mr. Roberts inquired “without the Government having opened its mouth or offered any evidence, you would be inclined to think that you would want to hear what the defense would have to say.” “Yes.” Excused (Tr. 100).
Another venireman admitted that he had read newspapers five years previously and that he would have formed an opinion at that time, but he stated: “Don’t know that I formed an unalterable opinion.” He was then asked if he “would want some evidence before [his opinion] could be changed.” His affirmative answer resulted in his discharge from the jury (Tr. 112).
It is clear from this history of the Teapot Dome trial that the court applied the standard that, regardless of the strength of the opinion held by the venireman, if it would take any evidence to set aside that opinion, the venireman did not possess the requisite open mind at the start of the trial that was required of a juror in a criminal case and was not qualified tо sit on the jury.
Because of the Supreme Court’s several citations of the specific question as to whether it would take evidence to set aside a juror’s opinion, the importance of that question in this case is evident. As noted, the allusion in Beck, supra, was to an opinion “which would require evidence to remove.” In Irvin v. Dowd, supra, the Court wrote:
Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief.
However, unlike the interrogation of the venire in the Teapot Dome case, the voir dire here generally tended to be confined to questions that sought in a black or white way to determine whether the person being questioned had a definite opinion as to guilt or innocence rather than attempting to ferret out what in-between views and leanings he did have based on all he had seen and heard. The broader inquiry, however, was necessary in order to permit counsel to form the judgments necessary for an intelligent exercise of their challenges to the venire. But the court relied on bare statements by the juror that he did not “have any prejudice, bias, sympathy or fixed opinion” and that he could “render a fair and impartial verdict . . ..” (emphasis added). (Hoffar Voir Dire 939, Appendix B infra at 406 of
MR. WILSON: May it please the Court, it is very obvious to me this juror has not been forthright with you.
THE COURT: If it is obvious to you, it is not obvious to me, Mr. Wilson.
MR. WILSON: I am the one to be concerned about it.
THE COURT: I am just as concerned as you are that these men get a fair trial in my courtroom, I want you to understand that.
*383 MR. WILSON: I understand that, but it helps us a lot if you will find out what he — he equivocated with you as to whether he heard it discussed and if it was discussed, he at one time said, sure, they are guilty and some other time somebody advocated to the contrary and said they weren’t guilty. This man stopped short of the crucial answers. If he has not an opinion, he has got a view. It is just as clear to me as it is possible to be.
THE COURT: Obviously, he is not one of these so-called intellectuals but I think he is a man that has good common sense and that to me is important.
Let’s proceed.
Id. at 946-47, Appendix B infra at 409 of
The relevance of the court’s disposition on the basis of whether one is an “intellectual” or has “common sense” is not apparent. The issue was the scope of the questioning.
The trial court’s questioning in most instances simply did not probe sufficiently to permit counsel to have a fair opportunity to obtain a jury that was assuredly qualified under the proper standard. Given the trial court’s rejection of the change of venue motion and its own protestation that it would rely heavily and exclusively on the voir dire, supra, p. 370 of 181 U.S.App.D.C., p. 147 of 559 F.2d, the standards of the Teapot Dome court were the least that defendants were entitled to under the law.
5. The Real Possibility of Political Prejudice
Political bias can also be a basis for prejudice, and so can itself be a basis for changed venue. This is made clear in United States v. Dennis,
It was not as though the prejudice had been local, so that it could be cured by-removal to another district; .
The public record is that Washington, D. C. is unique in its overwhelming concentration of supporters of the Democratic Party, as opposed to the Republican Party to which the defendants here belonged. The Statistical Abstract of the United States (1973) indicates that the candidate of the Democratic Party for President in 1968 received 81.8% of the total vote cast in the District of Columbia and in 1972 received 78.1% of that vote. The closest state to the District of Columbia in the 1968 election was Massachusetts with 63% of the vote cast for the Democratic Party candidate for President and in 1972 with 54.2% of the vote cast for President. Id. at 367. Thus in 1972 the vote for President indicates that the voters of the District of Columbia favored the candidate of the Democratic Party by 44% more than the voters in the next most Democratic presidential voting area in the union. In 1972 the voter turnout in the District of Columbia was 31.5%, but a sample of that magnitude of the population is certainly indicative, and four of the sitting jurors had participated in or contributed to campaigns (Tr. 634, 834, 1174, 1674). The trial court here denied defendants’ request to know to which party contributions were made (Tr. 568), whereas Teapot Dome jurors were interrogated as to “whether politics or political parties” would affect their
This case differs from Dennis in that in Washington, D. C., there most emphatically does appear to be a unique island of political bias, and in this case, with its massive political aspects, it would be futile to ignore the possibility that prior to the trial potential jurors may have formed prejudgments of the case based on their political affiliation or leanings. The obvious possibility of an extraordinarily high concentration of bias against the Republican Party defendants, in light of the simple and virtually costless venue remedy available to the trial court, buttressed the facts which required changed venue.
CONCLUSION
It is submitted that there is no principled basis upon which the presumptive prejudice in this case can be distinguished from that in Rideau and Marshall. The law is that the defendants should have been granted a change of venue on the basis of their May 1, 1974 motion. The law, as it has always previously been applied by this court, is also that this case must be reversed and a new trial granted because of that error.
THE CONVICTIONS ON COUNT 2
I. MISUSE OF THE CIA
The remainder of this opinion must deal with a mystery. All my colleagues normally are very quick to notice plain error, particularly in courts’ instructions. So, one must wonder why they insist here upon affirming a conviction on just one count that involves obvious plain error in the court’s instructions: the error being that the trial court instructed the jury they could return a guilty verdict on the offense charged in Count 2 solely on the ground the defendants committed an offense not charged in Count 2 of the indictment returned by the Grand Jury.
It is relatively unimportant to the appellants whether the convictions on Count 2 are upheld because the sentences are concurrent and the conviction on Count 1 involves a consummated conspiracy to obstruct justice and to defraud the government agencies. Thus, for this court to act appropriately on the error would not involve any lesser sentence or in any way lessen the nature of the convictions. But it is of the gravest moment what my colleagues do to the law because that will be applied to future cases. We should not confound the law on indictments in this circuit. We are not writing law just for this case alone. Our error will come back to plague us in future cases and the public will eventually suffer.
II. THE HUSH MONEY COUNT
Count 2 of the indictment is the so-called “hush money” count.
. by making cash payments and offers of other benefits to and for the benefit of the [Watergate break-in] defendants . . . and to others .
for the purpose of concealing and causing to be concealed the identities of the persons who were responsible for, participated in, and had knowledge of the activities which were the subject of the [grand jury] investigation and trial, and by other means.12
(Emphasis added). In the indictment this alleged offense followed Count 1, the conspiracy count.
On its face, Count 2 does not specifically allege that the defendants misused the CIA in any way in their obstruction of justice. Basically it charges an attempt to obstruct justice by concealing the identity of those responsible for initiating the Watergate break-in through (1) payments of “hush money” and (2) offers of moderate sentences or eventual pardons, (3) “and by other means.” During the trial substantial testimony was admitted on the conspiracy count that might fairly be characterized as indicating that the defendants did misuse that agency in an attempt to defraud the government. This evidence was admissible to prove the allegations of Count 1 that such acts constituted one of the means used by the appellants in their conspiracy to defraud the United States.
III. THE INSTRUCTION
At the close of trial, however, notwithstanding the absence of any reference in Count 2 to the use of any government agency in causing the unlawful obstruction of justice, the court instructed the jury as follows:
Similarly, if you find beyond a reasonable doubt that a Defendant knowingly and wilfully approved or participated in some other corrupt activity, such as making offers of leniency, clemency or other benefits, making false statements to the FBI, making false statements under oath to the Grand Jury, misusing the FBI or CIA, or other such activity, you may find*386 that Defendant guilty on Count Two if you also find beyond a reasonable doubt that his purpose was to influence, obstruct or impede the due administration of justice.
Tr. 12,383 (emphasis added). The jurors were thereby instructed that any evidence of the misuse of the CIA that was admissible to prove the conspiracy alleged in Count 1 could do double duty and also serve as the sole basis for their returning a guilty verdict on Count 2. Appellants point out the obvious error in such instruction, i. e., that the Grand Jury had not included defrauding an agency of the United States in the “hush money” obstruction of justice charged in Count 2 and that it was thus reversible error to charge that “misuse of the CIA” alone could constitute the offense charged in Count 2.
IV.THE GOVERNMENT’S CONTENTION
On this point the Government contends that such evidence was admissible because the indictment charged that the offense was also committed “by other means,” and that the defendants were not surprised by this evidence.
V.APPELLANTS’ CONTENTIONS
In response to the Government’s contention that sole reliance on such “misuse of the CIA” evidence was permissible, appellants contend it was plain error because the allegations of “other means” in Count 2 of the indictment did not refer to or include any charge beyond the payment of “hush money” or offering other benefits and does not permit the use of evidence to support the charge that is not similar to the “other means” charged in the indictment. As appellants frame the point, obstructing justice by “misusing the CIA ... is not in pari materia with the allegations that [defendants] . . . made cash payments and offers of other benefits to the [Watergate break-in] defendants. . . . ” Haldeman Brief at 116.
VI.EJUSDEM GENERIS
The term in pari materia is generally used to refer to statutes on the same subject matter.
Otherwise stated the interpretative rule of ejusdem generis applies. Under this rule, the “other means” alleged in the closing phrase of Count 2 is to be given its normal meaning referring to other “means” of the same general class as those previously alleged, i.e., to payments of money and offers of other benefits. But the majority attempts to avoid the rule and the natural implication and intention indicated by the phrase “by other means,” by arguing that “if it [the phrase] is so construed it adds little if anything to the second means named, i.e., offers of other benefits.” Id. That is precisely what it should do — add little — particularly in an indictment where some factual specificity is required. It should not open up a door bigger than the barn, but that is what the majority contends. Nor is it superfluous. It should be remembered that the concluding phrase is not restricted to the “offers” but also applies to “making cash payments.” Giving the phrase “other means” its normal meaning of limiting it to acts that are similar to making cash payments and offers of other benefits would permit the introduction of evidence of consummated benefits which were not just offered, to cite only one possibly material application of the phrase. In like vein, it would be permissible to introduce the equivalent of cash payments made by checks, credit cards, etc.
While ejusdem generis is not applied where a different intention is indicated, it is particularly applicable in interpreting this indictment because no contrary intent is indicated. To say that the phrase “by other means” was intended to embrace undefined extraneous matter would be to suddenly depart from the particular to the general— from the particular subject of specified benefits into a general field of wide and indefinite scope so that any evidence of obstruction of the investigation by the Grand Jury or FBI would be admissible. Sound criminal pleading does not permit such free wheeling with the factual allegations of an indictment. Heretofore, the established law required indictments to be more informative than that.
The “by other means” allegation must thus be interpreted to authorize only proof of other criminal acts which were similar to
VII. THE COURT’S INSTRUCTION
Therefore, the court’s instruction, which informed the jury that they could return a guilty verdict if they found any “misuse of the CIA” constituted an impermissible amendment of the indictment. This amounts to reversible error because it permitted the jury to find guilt on Count 2 solely on the evidence of the unalleged misuse of the CIA to curtail the FBI investiga
This charge to the jury definitely instructed that any misuse of either would be a sufficient basis for a guilty verdict. As stated above, this was error. The factual allegations of Count 2 cannot be construed as giving appellants any notice of the wholly unspecified charge upon which the court instructed the jury they could find appellants guilty on that count. For us to hold otherwise would have the effect of changing Count 2 from one based on claims of “hush money” and other offers of clemency (hush offers), to one based on obstruction by defrauding a government agency. If the Grand Jury had intended that appellants should be prosecuted on the latter theory it would have been specifically included “defrauding an Agency of the United States” in the count along with the hush money and clemency allegations.
In United States v. Alston,
It may be argued that we should overlook minor variations from standard instructions because jurors do not pay much attention to instructions anyway. Counsel’s failure to object, the argument runs, further supports this view.
It would be to abdicate our responsibility to ensure the fair administration of criminal justice to conjecture that jurors*390 do not heed instructions, or to find error nonprejudicial solely because of counsel’s silence. An instruction central to the determination of guilt or innocence may be fatally tainted by even a minor variation which tends to create ambiguity.21
VIII. THE RULE IN STIRONE V. UNITED STATES
Normally, in view of the strength of the evidence on Count 2 as charged, one would consider that the error we have pointed out could be considered harmless. That was my original approach to the problem and the conclusion of my original draft of this phase of the majority opinion, but I eventually found such disposition to be prevented by the authority and logic of Justice Black’s opinion in Stirone v. United States,
The indictment in Stirone charged a Hobbs Act offense of unlawfully interfering with interstate commerce involving the shipment of sand for a ready-mix concrete plant, brought into Pennsylvania from other states. During the trial, in addition to evidence of the impairment of commerce in sand, evidence was also admitted, over objection, of a potential effect on interstate commerce involving shipments of steel from a plant in Pennsylvania into other states. This commerce in steel was not alleged in the indictment. And there, as here, the judge charged the jury that it could return a guilty verdict solely on a finding of the offense that was not charged in the indictment, i.e., that the concrete was used for constructing a steel mill which would manufacture steel to be shipped in interstate commerce. The Supreme Court held
The court reasoned, in view of the trial court’s instruction, that it could not be said with certainty that Stirone was not convicted “solely” on the offense charged by the grand jury in the indictment. That is the precise situation here. Thus, while the trial court in Stirone did not formally amend the indictment, “the effect of what it did [by the instruction] was the same [and that] variation between pleading and proof . destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.”
It was the denial of the constitutional right of every defendant to be tried only on charges laid by a grand jury that led to the reversal in Stirone.
*391 Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. Compare Berger v. United States,295 U.S. 78 [55 S.Ct. 629 ,79 L.Ed. 1314 ]. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge.
The factual situation here is indistinguishable from that in Stirone. Had the grand jury intended to indict defendants in Count 2 for obstructing justice by a defrauding of federal agencies through their misuse they would certainly have included such charge in the indictment. The evidence thereof was sufficiently voluminous so that we cannot assume that it was overlooked, and we are fortified in this conclusion by the several allegations in the conspiracy count (Count 1) that effectively charged misusing the CIA (defrauding an agency of the United States).
The conspiracy count also charged obstruction of justice (18 U.S.C. § 1503) as the first object of the conspiracy, and because of appropriate allegations, the evidence of obstructing justice through misuse of the CIA could be relied upon in proof of the conspiracy count. But the more specific allegations of Count 2, because they never alleged a misuse of the federal agencies, did not permit the court to instruct the jury that the evidence which was only admissible on Count 1 could do double duty and also furnish the basis for finding the defendants guilty on Count 2 of obstructing justice.
The further assertion is made by the majority opinion that appellants were not prejudiced by the court’s erroneous instruction because of the overwhelming proof of guilt. But the teaching of Stirone is that where there is overwhelming proof of quilt of an offense not charged in the indictment returned by the grand jury the conviction on that count must be reversed.
IX. THE APPLICATION OF STIRONE
Under Stirone the judgments of conviction on Count 2 should therefore be reversed. This in no way would interfere with the conviction on any other count nor would it result in any diminution of the sentence of any defendant. My colleagues have normally been very alert to correct such elementary errors, particularly when the overall sentence would not be affected in any way, but as above stated, for some unexplained reason they do not seem to be similarly motivated by the error in this count. A defendant could not know he was charged with obstructing justice by defrauding a government agency (e. g., the CIA), if the indictment alleged he obstructed justice by making cash payments and promises of benefits and by other similar means.
X. THE NECESSITY FOR FACTUAL ALLEGATIONS
In discussing this issue the majority opinion gets lost between Rule 7 and the decided cases and never come to grips with the requirement that “the essential facts constituting the offense charged” must be stated in the indictment. Rule 7(c) Fed.R.Crim.P. In a clever play on words the majority substitutes “elements” for “facts” to attempt to obviate the requirement that the elements must be factually alleged. The cases cited by the majority are better authority for the converse of its assertion. For instance, consider the recent decision in Hamling v. United States,
“Undoubtedly the language of the statute may be used in the general description of an offense [i. e., the elements], but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific*392 offense, coming under the general description, with which he is charged.” United States v. Hess,124 U.S. 483 , 487 [88 S.Ct. 571 , 573,31 L.Ed. 516 ] (1888).
(Emphasis added). No further authority is needed to point out the error of the majority’s position on this point. To state, as the majority does, that Hamling charged the offense “only in the statutory language of 18 U.S.C. § 1461” is erroneous. A mere look at the opinion in the Ninth Circuit discloses that in each count the specific “Brochure” which was allegedly obscene was specifically referred to.
Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.
(Emphasis added).
In a conclusory statement, which does not state the particular objection to which it refers, the majority asserts that “Rule 7(c), in fact, expressly sanctions indictments in the language to which Haldeman objects,” Majority opinion at 348 of
Basically, the majority, by direction and indirection, is attempting to assert that requiring an allegation of defrauding the government by misuse of the CIA concerns only an evidentiary particular — a means— and any deficiency may be cured by a bill of particulars. Glasser v. United States,
[T]he particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy ... is not essential to an indictment. Crawford v. United States,212 U.S. 183 [29 S.Ct. 260 ,53 L.Ed. 465 ].
It can be seen from the foregoing cases that the specific factual allegations of those indictments did identify the offenses and that what the cases hold is that it is not necessary to allege detailed evidence. That is not this case. The majority opinion would support an indictment that charged
Haldeman on or about June 7,1972 in the District of Columbia violated 18 U.S.C. § 1503 by interfering with the Grand Jury investigation of the Watergate break-in and thereby did corruptly obstruct the due administration of justice by various means.
Such indictment does not allege the “essential facts constituting the offense,” and the Grand Jury so recognized. It accordingly alleged facts to identify the specific offense it was charging, i. e.:
[Defendants] . . . did corruptly obstruct . . . and .
corruptly endeavor ... to obstruct . the due administration of justice in conjunction with an investigation . by making cash payments and offers of other benefits ... for the purpose of concealing . . . the identities of the persons who were responsible for . . . the activities [being investigated] . . . and by other means.
(Emphasis added). All these facts are necessary to identify the particular offense with which defendants were charged.
Merely saying that the defendants are charged with obstructing justice in the Grand Jury investigation is obviously insufficient to allege the factual elements that are essential to a valid indictment. It was necessary to allege that the defendants did this “by making cash payments and offers of other benefits” for the stated purpose. These facts identify the offense, not merely the target or objective. They are not evi
A similar allegation of “defrauding the CIA” was necessary if evidence of “misuse of the . . . CIA” alone was to constitute an offense. “Misusing” the CIA might be an evidentiary detail if it were admissible under some more general factual allegation, but unless there is an allegation that defendants “defrauded the CIA” as an agency of the United States, such evidence is not relevant to any offense that is factually charged in the indictment. It is obviously wide of the law to permit a conviction to stand on evidence of “misusing the . CIA” where there is no allegation whatsoever that the CIA was defrauded. Thus, the requirement that the indictment contain such general factual allegation before evidence of misusing the CIA alone can furnish the basis for a conviction on that count does not concern an evidentiary particular.
XI. THE INTERPRETATION OF THE INDICTMENT
Nor is the interpretation of the indictment by my colleagues a permissible one. Ejusdem generis is clearly applicable and the requirement for the application of this elementary rule cannot be dismissed with a trite objection to “incanting these Latin phrases” (Majority opinion at 350 of
By alleging that the obstruction of justice with which the defendants were charged was carried out “by other means” in addition to those specified, the indictment effectively broadens the scope of the acts to which jeopardy attaches and correspondingly reduces the opportunity for subsequent prosecutions of these defendants for the alleged obstruction of justice during the lengthy period alleged in the indictment (June 17, 1972 through March 1, 1974).
Majority opinion at 349 of
For instance, assume defendants were acquitted on Count 2 and it was discovered before trial that they had caused the killing of a material witness, Mrs. Hunt, so she could not testify against them before the Federal Grand Jury. There would be no doubt that they could subsequently be charged with so obstructing federal justice. Or assume it was discovered before trial that the defendants had threatened several Grand Jurors who were hearing the case and those jurors had obstructed the Grand Jury investigation. Certainly such offense could be indicted after the trial. And I challenge the majority to state, if either of such offenses were discovered prior to trial, that they could be proved under the allegations of Count 2. To say that evidence of such offenses could be admitted under an indictment charging the making of cash payments and offers of other benefits and other means, and that a conviction could rest solely on evidence of the subsequently discovered offenses of murder and jury tampering, is patently ridiculous. The majority opinion thus grossly misstates the
XII. THE INTENT OF THE GRAND JURY
It is also rather clear, if one studies the indictment, that the Grand Jury never intended to include the charge of obstructing justice by delaying the investigation through a defrauding of the CIA as part of the obstruction of justice alleged in Count 2. A mere reading of Count 1 plainly shows that the Grand Jury charged that one object of the conspiracy was “to defraud the . . CIA,” but after that allegation was made in Count 1, the Grand Jury made absolutely no mention of the CIA in Count 2. So the Grand Jury was thoroughly aware of the facts. Had it intended to include such activities in the obstruction of justice count all that was required was to insert in the indictment:
by defrauding the Central Intelligence
Agency, an agency of the United States after the phrase “September 15, 1972.” Such would be a general factual allegation and obviously is not an evidentiary particularization. But no such allegation was made.
Because of the extreme prominence of the CIA activities in the charged offenses one cannot argue that the grand jury forgot them. It rather appears that it considered that Count 1 sufficiently set forth the offense they wished to indict upon, particularly because it alleged a consummated conspiracy. The Grand Jury could thus have been motivated not to follow the practice, which is much objected to by some, of charging both a consummated conspiracy and a substantive offense to commit the same crime.
This result may also have been dictated by the peculiar statutory status of the offense of defrauding an agency of the United States. There is no such general substantive offense in the federal statutes. Such acts are only covered in the conspiracy statute which makes it an offense to “conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof . . . ”
The failure of the indictment to include “perjury” in its factual charges alleged in Count 2 is another indication that the Grand Jury intentionally excluded misuse of the CIA from Count 2. Misuse of the CIA and perjury were both specifically alleged as objects of the conspiracy charged in Count 1 and both were equally probative on the issue of obstructing justice, but the Grand Jury never included either charge in Count 2. Had the Grand Jury intended the perjuries to be included in the factual elements of the obstruction charge it would have alleged “perjury” at least. All that would have been needed was the one word added to the indictment. And it cannot be said that the Grand Jury overlooked “perjury” because all the other twelve counts of the indictment did include some allegation of perjury or misstatement. The conclusion is thus irrefutable that the Grand Jury did not intend to include in Count 2 accusations of offenses that were made elsewhere in the indictment but which were completely omitted from Count 2.
Another reason which makes it clear why the Grand Jury did not intend to include defrauding the CIA in Count 2 is that Par
Acutely conscious of the evidentiary limitations, the Grand Jury drafted a neat count in which the offense was stated to have been committed by making cash payments, offers of other benefits, and by other similar means. Its handiwork should not be marred by an improper instruction and an unsound appellate affirmance — that would be impossible to live with.
XIII. THE BILL OF PARTICULARS
Also, contrary to the majority opinion, there is nothing in the record to support the assertion that appellants “abandoned the request” for a “bill of particulars as to the meaning of the phrase ‘by other means’ . presumably because it had been satisfied.” Even if they had there is no claim by the Government that it ever asserted a right or an intent to introduce evidence that the investigation was delayed through a defrauding of the CIA in support of Count 2 where such offense was not alleged.
Further, in an attempt to justify the admission of the evidence of misusing the CIA that was alleged in Count 1 in proof of the substantive offense charged in Count 2 the majority seek refuge in a reply made in a bill of particulars:
In response to a request which read: “State whether the allegations of obstruction of justice in [Count 2] are encompassed within the obstruction of justice alleged in Count One,” the Government said in its bill of particulars, “The substantive violation of 18 U.S.C. § 1503 alleged in Count 2 was among the offenses which were the objects of the unlawful agreement alleged in Count 1.” Doc. 177 at 5. Appellants did not challenge this response.
Majority opinion at 351 of
XIV. THE “BY OTHER MEANS” ALLEGATION
That appellants did not move to strike “by other means” from the indictment proves nothing. There was nothing improper or illegal about the use of the phrase. The defendants had a perfect right to assume it would be given its normal meaning and construed to refer to “other similar means” and as such it was unobjectionable. As above stated, the abuse of the phrase was not by its inclusion in the count but by the court’s interpretation of it in its closing instruction.
United States v. Caine,
As for Mayo, the decision held that an allegation “among others” to be proper because in the context of that indictment it did not constitute
an impermissible delegation of authority to the prosecutor which enabled him to enlarge the grand jury accusation.
In any event, no person contends that the phrase is invalid, but only that it should be given the meaning the Grand Jury obviously intended. The Grand Jury never intended to include defrauding the government by delaying the investigation in Count 2. Had it so intended the very competent prosecutors were more than sufficiently knowledgeable to accomplish that result.
XV. THE CONSPIRACY ARGUMENT
My colleagues also make the weird contention that the instruction as to Count 2 was unobjectionable because the evidence was admissible under Count 1. That is an unbelievable argument — to assert that defendants are not prejudiced by convictions on two counts on the basis of evidence that is admissible only on one count. I will be anxiously waiting for my colleagues to apply that law in the future to other cases.
Actually the majority has hit exactly upon what it is trying to do by its CIA argument. It is trying to make a second conspiracy count out of Count 2. In the heat of the trial the court made the same mistake and instructed the jury: “Count Two charges all of the defendants except Mr. Mardian with actually carrying out the agreement to obstruct justice which is charged in Count One.” (Tr. 12,378) (emphasis added). But the Grand Jury knew it could not hold the acts of certain defendants in a substantive offense against other defendants, as is done in a conspiracy count with acts of coconspirators committed in furtherance of the conspiracy. It refused to charge in the obstruction count that Parkinson participated in delaying the investigation by a defrauding of the CIA because he was not in any way involved in any of the CIA activity. Since the Grand Jury never so charged Parkinson in that count it never charged any of his co-defendants that were named in the count.
It is elementary law that absent a cross-reference one count in an indictment cannot be amended at trial to insert allegations from another count. One would have though it was not necessary to assert such an elementary rule of law to this court. Nevertheless the majority opinion contends:
In fact, the allegations of conspiracy to obstruct justice and to defraud the United States in Count 1 are the basis of the allegations of the substantive offense of obstruction of justice in Count 2.
Majority opinion at 351 of 181 U.S.App. D.C., at 128 of 559 F.2d (emphasis added). What a statement! There is absolutely no allegation whatsoever in Count 2 about defrauding the United States or about conspiracy. Or for that matter about perjury. This argument in the majority opinion makes it plain that it is trying to convert Count' 2 into another conspiracy count. One conviction on a single conspiracy is all that this court has previously allowed. It is plain error to' permit “the allegations of conspiracy ... to defraud the United
The sufficiency of the evidence on the conspiracy count is not an issue here. What is objected to is permitting a small portion of that evidence, offered in proof of the consummated conspiracy alleged in Count 1, to constitute the sole basis for the conviction on Count 2. Heretofore this court has always considered that it was immaterial what the evidence disclosed as to some other offense if a defendant was convicted on an offense that was not charged in the indictment. This was so because we considered that all defendants have a constitutional right to be tried only on felonious offenses that have been charged by the grand jury.
To support its decision here, to the contrary of this basic constitutional principle, the majority opinion attempts (at 350-352 of
XVI. THE GENERALITY OF THE INDICTMENT
The majority also tries to make a point that Stirone “suggested that if the indictment had been more general Stirone’s conviction would not have been reversed” (at 351 of
It follows that when only [making cash payments and offers of other benefits] is charged ... a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that [through misuse of the CIA the investigation was delayed].
The majority attempts to make a similar argument for excessive liberality in construing indictments out of the provision in Rule 7(c), Fed.R.Crim.P., which states that an indictment may allege “that the means by which the defendant committed the offense are unknown . . .” This, however, does not eliminate the necessity for the indictment alleging sufficient facts to identify the specific offense that was committed by the accused in some unknown way, i.e., that the defendants delayed the investigation by means unknown to the Grand Jury. In any event, the means here were not unknown — Count 1 specifically alleged “defrauding the . . . CIA” and the same allegation could easily have been included in Count 2 if the Grand Jury had intended to include it. That it did not do so indicates it did not intend to allege such offense.
XVII. THE AMENDMENT OF THE INDICTMENT
As the majority opinion above indicates, it would actually amend Count 2 by reference to the allegations in Count 1:
*399 Here, however, some indication of what was before the grand jury with respect to the CIA and what was intended by the phrase “by other means” in Count 2 is provided by the language of the conspiracy charge in Count 1 and the evidence admitted without objection in support thereof.
(Majority opinion at 351 of
As pointed out above, the breadth and importance of the allegations in Count 1 on the CIA and its failure to make even a slight reference to such charges in Count 2, when only a slight reference was needed, indicates that the Grand Jury did not intend to charge the defendants twice for a consummated conspiracy and the substantive offense of conspiracy to defraud a United States Agency.
Why the majority insist on failing to apply our established law which would reverse the conviction on this single count remains a mystery. If this law is applied in the future it will be impossible to live with.
For the foregoing reasons
APPENDIX A
SINDLINGER AFFIDAVIT
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Criminal Case No. 74-110
United States of America v. John N. Mitchell, et al., Defendants
AFFIDAVIT
ALBERT E. SINDLINGER, being duly sworn, deposes and says:
1. I am the chief executive officer of Sindlinger & Company, Inc. of Swarthmore,
2. I am a member of the American Statistical Association, National Bureau of Economists and many other professional organizations. I have prepared survey material for and have testified in connection with the matters before the Congress of the United States, federal administrative agencies and courts.
3. The public opinion survey referred to herein was conducted from April 12-21, 1974, and was performed under my direct supervision and control. We employed a national sample of residential telephone numbers in 487 counties within the 48 contiguous states of the United States. These 487 counties were selected by computer on a random basis and individual telephone numbers were then selected within those counties, also by computer on a random probability basis. This process produces a selection of residential telephone numbers which is representative of the national population as a whole. Since we had also been requested to survey opinions within certain specific areas we derived additional samples for the counties within those areas which were not included within the counties which comprised our national sample. We used local telephone books in these additional counties to select residential telephone numbers on the same random probability by population basis as was employed for our national sample. The samples so derived were statistically representative of the population of the specific areas which we have been requested to survey.
4. The specific areas which were selected for survey in addition to the nation as a whole were:
(a) The District of Columbia;
(b) The state of Delaware which I am advised constitutes the territorial jurisdiction of the United States District Court for the District of Delaware;
(c) The following counties in the State of Indiana: Bartholomew, Boone, Brown, Clinton, Decatur, Delaware, Fayette, Fountain, Franklin, Hamilton, Hancock, Hendricks, Henry, Howard, Johnson, Madison, Marion, Monroe, Montgomery, Morgan, Randolph, Rush, Shelby, Tipton, Union and Wayne, which I am advised constitute the territorial jurisdiction of the Indianapolis Division of the United States District Court for the Southern District of Indiana;
(d) The following cities and counties in the State of Virginia: Cities of Richmond, Petersburg, Hopewell, Colonial Heights, and Fredericksburg, and the Counties of Amelia, Brunswick, Caroline, Charles City, Chesterfield, Dinwiddie, Essex, Goochland, Greensville, Hanover, Henrico, King and Queen, King George, King William, Lancaster, Louisa, Lunenburg, Mecklenburg, Middlesex, New Kent, Northumberland, Nottoway, Powhatan, Prince Edward, Prince George, Richmond, Spotsylvania, Surry, Sussex, Westmoreland and all other cites or towns geographically within the exterior boundaries of said counties, which I have been advised constitute the territorial jurisdiction of the Richmond Division of the United States District Court for the Eastern District of Virginia;
We also initiated a survey in the Eastern District of Pennsylvania, but that survey was not completed.
5. We utilized the following survey methodology. The telephone number shown by our sample was called. If the person answering the telephone was female, the surveyor would determine whether there was a male over the age of 18 in the
6. Those persons who stated that they were registered voters were then asked a series of Watergate related questions. These included:
Have you ever read or heard anything about the fact that a number of President Nixon’s former aides have been in-dieted for covering up the Watergate affair?
Thinking of Nixon’s former aides who are now under indictment — do you have an opinion on their guilt or innocence?
How do you personally feel, do you feel they are guilty or innocent in the Watergate affair?
They were also asked a question which sought to identify the basis of their opinion, as follows:
In thinking of your own opinions with regard to the guilt or innocence of the defendants in the cases we have been talking about [which included the Fielding break-in case as well as this one]— what do you think has most influenced you — what you have read in the newspapers or what you have read in magazines, or your own political position?
7. The tabulated results
*402
8. It is my opinion that the above indicated percentages for the nation are representative of the opinions of all registered voters in the nation within an overall maximum variation of ± 2.5% and that the above indicated percentages for the specific areas surveyed are representative of the opinions of all registered voters within an overall maximum variation of ±5%.
/s/ Albert E. Sindlinger
ALBERT E. SINDLINGER
Sworn to before me this 30th day of April, 1974.
/s/ Dorothy E. Baker Notary Public
My Commission Expires November 30, 1977
APPENDIX B
HOFFAR voir dire
[928] (John A. Hoffar entered the courtroom.)
THE COURT: Good morning, Mr. Hoffar.
Mr. Hoffar, I want you to know at the beginning that these questions are being propounded to you in private in the presence of the Defendants and their lawyers and the Government counsel not for the purpose of embarrassing you or prying into your personal affairs. This is the last part of our routine to determine whether or not you have the qualifications to be [929] selected to be on this jury if the lawyers
Mr. Hoffar, are you employed now or retired?
JUROR HOFFAR: I am a retired U.S. Park policeman.
THE COURT: How long were you connected with the U.S. Park Police?
JUROR HOFFAR: Twenty-one years.
THE COURT: What generally were your duties at that time?
JUROR HOFFAR: Mostly supervisory and in a patrol car.
THE COURT: Are you married?
JUROR HOFFAR: Yes sir.
THE COURT: Does your wife work?
JUROR HOFFAR: No, sir.
THE COURT: Has she ever been employed?
JUROR HOFFAR: Only part time.
THE COURT: Where was that?
JUROR HOFFAR: She just assisted where she went to school or college — Trinity College.
THE COURT: Here out near Catholic University?
JUROR HOFFAR: Yes, sir.
THE COURT: Do you have any children?
JUROR HOFFAR: No, sir.
THE COURT: Now, I don’t want to know how you voted in any election or what your political affiliations or anything [930] like that are, but this is a question I would like you to think about:
Are you or any relative or close friend a member of a political party? By, political party, I might say, like the local Republican State Committee or Democratic Central Committee?
JUROR HOFFAR: No, sir.
THE COURT: Did you contribute or have you ever contributed to any political party by way of cash or a check?
JUROR HOFFAR: Yes, sir.
THE COURT: Now, you recall I propounded a series of questions to about 18 or 12 of you as a group, you remember that? Were you in the group of 12 or 18?
JUROR HOFFAR: Eighteen.
THE COURT: Do you believe at this very moment, and without having heard any of the evidence that will be offered in this case, that any Defendant in this case is guilty of violation of any one or all of the charges set out in the various counts of the indictment?
JUROR HOFFAR: No, sir.
THE COURT: Your answer is, no. JUROR HOFFAR: No.
THE COURT: As you probably know, this case has been the subject of many stories in newspapers, magazines, articles, and so forth, and you may have read or heard about this case or about the indictment.
Now, I am not going to question you about what, if anything, you have heard or read about the case, but I am going to question you as to what you heard or read about the case to decide if you can be qualified to serve on this jury if you are selected by the attorneys at the proper time. But first I will make some comments so you can understand that simply because you may have heard or read or discussed this case does not mean that you will not be permitted to serve on this jury.
Neither I nor the Government, nor counsel for the Defendants, or the Defendants expect or are entitled to impanel a jury that has never heard anything about this case, read about it or discussed it or anything like that. We don’t expect to get that kind of a jury, because I think, frankly, it would be impossible.
Instead, we would like to get a jury where each juror is able to put aside anything he or she may have read or heard and any opinion he or she may have formed based thereon and decide these Defendants’ guilt or innocence based solely on the evidence you hear in open Court and in accordance with the instructions that I shall give you at the end of the trial, or the law of the case.
Had you heard about this case before coming into the courtroom, say, was it last Tuesday?
JUROR HOFFAR: Yes, sir, last Tuesday.
THE COURT: Had you heard about this case or read about it before that time?
JUROR HOFFAR: Yes, sir.
THE COURT: Does anything you may have heard or discussed about this matter particularly stand out in your mind? Any one thing or several things?
JUROR HOFFAR: No, sir.
THE COURT: Have you seen any of the Defendants or their lawyers on television or their pictures in the newspapers?
JUROR HOFFAR: Yes, sir.
THE COURT: Which ones? Can you indicate, if you remember?
JUROR HOFFAR: All of them.
THE COURT: You have seen all of them on television? Let’s take television first.
JUROR HOFFAR: Television and the newspapers. I haven’t paid particular attention.
THE COURT: You mean combined, that is, either on television or the newspapers, you have seen all their pictures from time to time, is that correct?
JUROR HOFFAR: Yes, sir.
THE COURT: What, if anything, do you remember about these Defendants? Does anything stand out in your mind after seeing them or hearing them talking, anything like that?
JUROR HOFFAR: I really haven’t paid that much attention to the whole thing to have anything stand out in my mind.
THE COURT: Do you read one or more of the daily newspapers here; and if so, which one?
JUROR HOFFAR: The Post mostly. Sometimes I see the Star.
THE COURT: You watch the news programs on television or listen to them on radio?
JUROR HOFFAR: Most days I do.
THE COURT: Have you followed the Watergate matters closely or casually?
JUROR HOFFAR: Casually.
THE COURT: Do you subscribe regularly to any magazines, we’ll say?
JUROR HOFFAR: Just Reader’s Digest.
THE COURT: How about Time Magazine or Newsweek, or Harper’s, or any of those kind of magazines?
JUROR HOFFAR: I just haven’t found time to subscribe to more than that. When I go to the library sometimes I read Newsweek or Business Week and that is about it.
THE COURT: Thank you.
Have you ever heard discussed or seen anything about [934] the so-called break-in of the Democratic National Committee in June of 1972?
JUROR HOFFAR: Yes, sir.
THE COURT: Read about it or discussed it or anything like that?
JUROR HOFFAR: Yes, sir.
THE COURT: What did you read about it if you remember?
JUROR HOFFAR: Just what is in the newspaper, just what everybody was talking about at the time.
THE COURT: Did you read about the results of the trial of the seven men who were indicted?
JUROR HOFFAR: Yes, I read the whole thing but I can’t remember exactly.
THE COURT: Thank you.
Now, recently a man by the name of Jeb Stuart Magruder and two reporters from the Washington Post by the name of Carl Bernstein and Robert Woodward wrote two books. Mr. Magruder wrote a book called, “An American Life — One Man’s Road to Watergate,” and the two reporters wrote a book called, “All The President’s Men.” Have you heard of either one or both books?
THE COURT: Have you read either of the books?
JUROR HOFFAR: No, sir.
THE COURT: Have you read any serialized account of those books that might have appeared in the newspapers or [935] magazines like that?
JUROR HOFFAR: Probably have, but I don’t remember.
THE COURT: Do you recall them now?
JUROR HOFFAR: No, I just read them as I read the news.
THE COURT: Have you discussed this case or any of the Defendants with anyone or has anyone discussed the case or any of the Defendants in your presence?
JUROR HOFFAR: Yes, sir.
THE COURT: Can you remember who they might be that you have discussed the case with?
JUROR HOFFAR: It wasn’t that important, it doesn’t stand out in my mind. It was just idle conversation.
THE COURT: People that you might have worked with, friends of yours?
JUROR HOFFAR: Oh, yes.
THE COURT: Your wife, I suppose?
JUROR HOFFAR: Anybody that wanted to talk about it, I talked about it.
THE COURT: Do you recall when was the last time that you heard or read anything about this case? I am talking about the last time before last Tuesday when you came to Court, if you remember?
JUROR HOFFAR: I usually just read the headlines and if there is something outstanding, I read further.
THE COURT: Have you ever read the so-called tape transcripts that were released by former President Nixon which were contained in what has familiarly become known as the Blue Book, about that thick (indicating), transcripts of the tapes released to the public?
JUROR HOFFAR: I read the first couple days and there was just too much. I have other things to read.
THE COURT: Was that in the library that you read those comments?
JUROR HOFFAR: The newspapers.
THE COURT: Do you have any personal knowledge of the facts of this case separate from any information you may have heard or read, television, radio, newspapers, books or magazines — personal knowledge?
JUROR HOFFAR: No, sir.
THE COURT: Are you aware of the fact that the Senate Select Committee on Presidential Campaign Activities also known as the Watergate Committee, or the Ervin Committee, held hearings on what is termed the Watergate matters last summer sometime?
JUROR HOFFAR: I really haven’t kept track of it.
THE COURT: Are you aware that did happen?
JUROR HOFFAR: Oh, yes, sir.
THE COURT: Hearings were held and the hearings were televised nationally and locally, too, of course.
JUROR HOFFAR: Oh, yes.
THE COURT: Are you aware of the fact that the Judiciary Committee of the House of Representatives, also known as the Impeachment Committee, conducted hearings on the impeachment of former President Nixon? Are you aware of that?
JUROR HOFFAR: You see all these hearings are sort of lumped together in my mind. I really haven’t followed them closely to separate them.
THE COURT: Did you hear or see any part of the hearings on television or listen to any part on the radio?
JUROR HOFFAR: Yes, sir.
THE COURT: Often or infrequently?
JUROR HOFFAR: Infrequently.
THE COURT: They went on for some time as I remember.
JUROR HOFFAR: When I would listen to the news, if it was close to the news time, I would listen.
JUROR HOFFAR: Whatever anybody had on. I have no favorite news program.
THE COURT: Listen to this question carefully:
From what you have read or heard about this case from any source whatsoever, have you formed or expressed any opinion as to the guilt or innocence of any of these Defendants?
JUROR HOFFAR: Well, being a former policeman, I sort of tried to be neutral until a person has been convicted and I [938] really haven’t said definitely one way or the other.
THE COURT: All right, sir, thank you.
Now the Government and the Defendants in this ease are entitled to have this case decided on its merits, that is, on the evidence presented in open Court and pursuant to the law as the Court will try to explain it to the jury at the end of the case. You must not be influenced, of course, by any events that transpire outside of the courtroom. You may have read or heard that former President Richard M. Nixon has been pardoned for any offenses he may have committed against the laws of the United States while he was President. Are you aware of that?
JUROR HOFFAR: Yes, sir.
THE COURT: Is there anything about the pardon of Mr. Nixon that has caused you to form or express any opinion about the guilt or innocence of any of the Defendants in this case?
JUROR HOFFAR: No, sir.
THE COURT: Did you read, see, or hear about the Defendant, Mr. Ehrlichman’s trial recently in the ease of the United States v. Ehrlichman, commonly known as the Plumbers case? Do you recall that?
JUROR HOFFAR: Faintly, but I don’t remember much about it.
THE COURT: Do you recall anything about that trial? Does anything stand out in your mind about the so-called Plumbers case?
JUROR HOFFAR: I wasn’t that interested to remember.
THE COURT: Did you happen to recall the result of thаt case, what the jury did, what the verdict was?
JUROR HOFFAR: Offhand, no.
THE COURT: Were you aware that former President Richard M. Nixon was named as an unindicted co-conspirator by the Grand Jury in this case?
JUROR HOFFAR: I think I remember that as a headline.
THE COURT: Did your knowledge that Mr. Nixon was named as an unindicted co-conspirator cause you to form any impression or opinion as to the guilt or innocence of any one of the Defendants in this case?
JUROR HOFFAR: No, sir.
THE COURT: Do you have any prejudice, bias, sympathy or fixed opinion which would prevent you from following the instructions which the Court will give to the jury at the end of the case?
JUROR HOFFAR: Not that I can think of.
THE COURT: Do you conscientiously believe you can render a fair and impartial verdict in this case if you are selected to serve on the case free from any prejudice, bias, if any you might have, for or against the Government or the Defendants?
JUROR HOFFAR: I think so.
THE COURT: Did you make any effort to study the facts of this case to prepare for your jury duty?
JUROR HOFFAR: No, sir.
THE COURT: Does any reason whatsoever suggest itself to you at this time why if you are selected to serve on this jury you feel you could not listen to the evidence objectively and the testimony and at the proper time render or vote for a verdict or join in a verdict which will be based in your opinion solely upon the evidence that will be offered in open Court and the instructions on the legal principles involved of the law, in other words, applicable to the case?
THE COURT: No reason whatsoever?
JUROR HOFFAR: None that I can think of offhand.
THE COURT: All right, let the juror step out for a few minutes.
(Juror Hoffar was temporarily excused from the courtroom.)
THE COURT: My Law Clerk reminds me there is one other question I forgot to ask him. Bring him back.
MR. NEAL: Your Honor, to save time, could we suggest — maybe we are talking about the same one—
THE COURT: —I have this question which my Law Clerk reminded me:
As you sit here today, without having heard any [941] of the evidence in this case, do you think it is unfair to prosecute certain of Mr. Nixon’s associates, including some of the Defendants sitting in Court today simply because Mr. Nixon, himself, has been pardoned?
MR. NEAL: We are talking about the same one, Your Honor. But there is one other area I didn’t understand, maybe I just missed it, does the juror have adult children?
COUNSEL: He has no children.
MR. NEAL: I missed that.
MR. BRESS: Your Honor, I don’t think the juror was responsive to your first question as to whether he had any opinion on the guilt or innocence of the Defendants. I thought his attempted answer was not responsive. He said as a policeman he would try to be neutral. He said he would be neutral until convicted.
MR. HUNDLEY: Judge, could you also ask him — he says he is retired. Could you ask him what he does do? He obviously doesn’t read or listen to anything about this case. Could you inquire a little bit about how he spends his time or at least how long he has been retired?
THE COURT: All right.
MR. WILSON: May it please the Court, with regard to Mr. Hundley’s question, I think he may have asked most of which I want to ask, the man’s personal situation, that is to say, when he retired, the reason for his retirement. After all, he [942] only had 21 years of service and he is 57, and why he does not find time to read much. What is he doing?
THE COURT: That is personal, I think. I don’t want to get into that.
MR. WILSON: It helps us to form a judgment about the capacity of this man, Your Honor, which is one of the things we are entitled to do on a challenge.
THE COURT: You mean I should inquire as to how he spends his time?
MR. WILSON: Certainly. This is startling. A man who is only 57 and is retired and he is busy, busy what? Also, getting down to the question of opinion, you didn’t ask him what opinions were expressed in his presence, if any. And on the question, have you expressed an opinion as to guilt or innocence, you didn’t ask him whether he had an opinion.
THE COURT: I thought I did.
MR. WILSON: He could have an opinion but not having expressed it.
THE COURT: Didn’t I ask him, isn’t that contained or implied in the last question: Do you know any reason whatsoever and so forth and so forth? That is the cover-all question.
MR. WILSON: That question from a judicial point of view is absolution. I don’t care what the answer to that question is, you do, but I don’t.
THE COURT: I can’t satisfy 15 lawyers, obviously.
Everybody has a different idea about the questions.
MR. BRESS: Your Honor, that last question, we always ask it, but that leaves the judgment or decision to the juror where the decision on this question really resides with us.
THE COURT: All right, bring the juror back.
(Juror Hoffar returned to the courtroom.)
JUROR HOFFAR: I have no opinion.
THE COURT: All right. Now, you said you were retired. You are 57 years old. You were a member of the Park Police, what was it, 21 years?
JUROR HOFFAR: Yes, sir.
THE COURT: Do you have any hobbies? Do you do a lot of reading? What do you do in your spare moments, some of the lawyers would like to know?
JUROR HOFFAR: It would be hard to believe, but I don’t have any real hobbies that take up a lot of time. I have had two houses to take care of, my wife to take care of, and more or less wherever she wants to go, I take her, and we are just trying to enjoy ourselves and that takes — I don’t know where the time goes. I have no idle moments.
THE COURT: Do you and your wife travel much?
JUROR HOFFAR: No, sir, just around town.
THE COURT: I am talking about out of the City?
JUROR HOFFAR: No, sir.
THE COURT: Do you read quite a bit? I’m talking about outside of newspapers and magazines.
JUROR HOFFAR: I love to read but I just can’t read very long.
THE COURT: All right. Have you ever expressed any opinion that you might have had to any person that you can recall or anyone, as a matter of fact, about this ease one way or the other?
JUROR HOFFAR: I probably have.
THE COURT: Do you recall what that opinion might have been?
JUROR HOFFAR: Well, it really isn’t that important to me to get into an argument with somebody. If somebody discusses with me their points of view, I just agree with them, it doesn’t make any difference to me to try to change their mind.
THE COURT: What I am trying to find out is have you ever taken a firm position on any part of this case, saying, well, I think so-and-so is guilty, I think so-and-so is innocent, or, I think this, or, I think that? That is what I am talking about, an opinion.
Have you ever done that with anybody? JUROR HOFFAR: No, sir.
THE COURT: You have a completely open mind on this matter as to the guilt or innocence of these Defendants?
JUROR HOFFAR: As far as forming a definite opinion, I have an open mind.
THE COURT: All right.
Listen to this question very carefully:
As you sit here today without having heard any of the evidence in this case, — is that clear?
JUROR HOFFAR: Yes.
THE COURT: —do you think it unfair to prosecute certain of Mr. Nixon’s associates, some of whom are in the courtroom today, including some of the Defendants, as I said, sitting in the courtroom today, simply because Mr. Nixon, himself, has received a pardon?
Do you understand the question or do you want me to repeat it?
JUROR HOFFAR: Because Mr. Nixon received a pardon, no one else should be convicted, is that it?
THE COURT: That isn’t precisely the way I put it. Let me read it again. Think about it:
As you sit here today without having heard a word of the evidence in this case, do you think it is unfair to prosecute, I mean for the Government to prosecute certain of Mr. Nixon’s associates, including some of the Defendants sitting in Court [946] today, simply because Mr. Nixon, himself, has received a pardon from President Ford?
JUROR HOFFAR: No, sir.
THE COURT: You don’t think so?
JUROR HOFFAR: No.
(Juror Hoffar left the courtroom.)
MR. WILSON: May it please the Court, it is very obvious to me this juror has not been forthright with you.
THE COURT: If it is obvious to you, it is not obvious to me, Mr. Wilson.
MR. WILSON: I am the one to be concerned about it.
THE COURT: I am just as concerned as you are that these men get a fair trial in my courtroom, I want you to understand that.
MR. WILSON: I understand that, but it helps us a lot if you will find out what he — he equivocated with you as to whether he heard it discussed and if it was discussed, he at one time said, sure, they are guilty and some other time somebody advocated to the contrary and said they weren’t guilty. This man stopped short of the crucial answers. If he has not an opinion, he has got a view. It is just as clear to me as it is possible to be.
THE COURT: Obviously, he is not one of these so-called intellectuals but I think he is a man that has good common sense [947] and that to me is important.
Let’s proceed.
MR. WILSON: I think he is equivocating with you.
THE COURT: If you think that, it is on the record.
MR. HUNDLEY: I challenge for cause.
MR. FRATES: I don’t state it as strongly as Mr. Wilson, but I would request Your Honor to ask him what is his opinion, because I think it occurs to me he does have an opinion and in his answers to Your Hon- or he seems to have qualified them.
I don’t think all of us are over-reacting and I request Your Honor to ask him what his opinion is.
THE COURT: I think I have covered that. I will deny your request.
. MR. GREEN: Your Honor, following up something Mr. Frates said, my notes show in answer to one question he stated as far as forming a definite opinion, I have an open mind. That leads inescapably to the conclusion he has some opinion and has not been testified to hear.
THE COURT: I don’t intend to conduct a cross-examination of these people. I will interrogate them fairly in my opinion. Obviously, again, I can’t satisfy every one of you.
Let’s proceed.
MR. BRESS: Are we entitled to know whether or not he is retired because of some disability?
[948] THE COURT: Bring him back.
MR. HUNDLEY: I thought you indicated to me that you would remind these people as they came in that they are still under oath.
THE COURT: I am going to tell them it has been suggested that I remind them.
MR. HUNDLEY: Yes, sir.
(Juror Hoffar returned to the courtroom.)
THE COURT: Mr. Hoffar, it has been suggested that I remind you that you are still under oath, you understand that?
JUROR HOFFAR: Yes, sir.
THE COURT: Now, were you retired for disability or what was the reason for your retirement, if any?
JUROR HOFFAR: Well, I was a year over the 20 years necessary for retirement and I figured I used up all my luck.
THE COURT: All right, sir, thank you.
Now, I want to explain to you something, sometime I forget to remind the jurors: When you go back upstairs — the young lady will escort you up — please do not discuss with any prospective juror — you are a prospective juror now — you will be called back to the jury box at the proper time when we actually start impaneling the jury. Please do not talk about what we discussed here, the questions I asked you or anything like that when you go home this evening, please don’t talk to your wife about what transpired in Court and above all, don’t [949] talk to any person about what took place in the confidence of the lawyers, and so forth. All right.
(Juror Hoffar was excused.)
. This estimate follows from finding the average number of column inches per file page in ten inches of the file, then extrapolating that figure to all four boxes. A sampling showed an average of 15.4 column inches per file page, with 1370 file pages in a ten-inch sample. There are at least 40 inches of files in the four boxes, for a total of 84,392 column inches. Reducing this by one-third to allow for scattered New York Times and other clippings, a figure of 56,262 column inches results. This averages to some 80 column inches per day for the 682 day period, but the intensity of the coverage fluctuates about plus or minus 60% around the 80 column inch/day figure over the period, for a daily average of some 30 to 120 column inches.
. Multiple answers were recorded in more than one category. As a сonsequence, the totals of all answers to these questions will exceed 100%. (N.3 in Sindlinger Affidavit).
. The probability of the observed difference (between the percentage of persons believing the defendants guilty in the Washington and in the national samples) being due to chance fluctuation is less than one one-hundredth of one per cent, using accepted statistical theory.
. See, e. g., Doonesbury comic strip in The Washington Post, Aug. 13, 1974, § B at 10; id., Aug. 12, 1974, § B at 8; id., July 27, 1974, § E at 50; id., July 25, 1974, § F at 16; and Her-block cartoons in id., Aug. 11, 1974, § C at 6; July 28, 1974, § C at 6.
. This tendency was documented in The Art of Clear Thinking, supra.
. The trial was in the Supreme Court of the District of Columbia (the predecessor to the U.S. District Court for the District of Columbia) on Criminal No. 42304 on the indictment returned June 30, 1924.
. References are to the October 7, 1929 transcript in the U.S. Archives in the case in the Supreme Court of the District of Columbia, No. 42304, entitled United States v. Albert B. Fall. This case involved the indictment returned June 30, 1924 for violation of the bribery section of the criminal code, i. e., § 117 of the penal code, 18 U.S.C. § 207 (35 Stat. 1109).
. Hoffar Voir Dire at 939, Appendix B infra at 406 of
. Id.
. Tr. 52.
. The entire text of Count 2 is as follows: The Grand Jury further charges: ,
1. From on or about June 17, 1972, up to and including the date of the filing of this indictment, in the District of Columbia, and elsewhere, JOHN N. MITCHELL, HARRY R. HALDEMAN, JOHN D. EHRLICHMAN, CHARLES W. COLSON, KENNETH W. PARKINSON and GORDON STRACHAN, the DEFENDANTS, unlawfully, willfully and knowingly did corruptly influence, obstruct and impede, and did corruptly endeavor to influence, obstruct and impede the due administration of justice in connection with an investigation being conducted by the Federal Bureau of Investigation and the United States Attorney’s Office for the District of Columbia, in conjunction with a Grand Jury of the United States District Court for the*385 District of Columbia, and in connection with the trial of Criminal Case No. 1827-72 in the United States District Court for the District of Columbia, by making cash payments and offers of other benefits to and for the benefit of the defendants in Criminal Case No. 1827-72 in the United States District Court for the District of Columbia, and to others, both pri- or to and subsequent to the return of the indictment on September 15, 1972, for the purpose of concealing and causing to be concealed the identities of the persons who were responsible for, participated in, and had knowledge of the activities which were the subject of the investigation and trial, and by other means.
(Title 18, United States Code, Sections 1503 and 2.)
. See n.l, supra.
. The conspiracy count alleged that the defendants unlawfully conspired to defraud the United States Government (and various agencies thereof, including the CIA) of its right to have the officials of those departments and agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty, unlawful impairment and obstruction. Indictment, Count 1, ¶ 10, J.App. 115-16. The first count also alleged that it was a part of the conspiracy that the conspirators would, by deceit, craft, trickery and dishonest means, defraud the United States by interfering with and obstructing the lawful governmental functions of the CIA by inducing that agency to provide financial assistance to those involved in the Watergate break-in. Indictment, Count 1, H 13, J.App. 117. Two overt acts also alleged that in furtherance of the conspiracy and to effect the objects thereof, on or about June 24, 1972, Mitchell and Mardian suggested to Dean that the CIA be requested to provide cover funds to assist those involved in the Watergate break-in, Indictment, Count 1, Overt Act ¶ 7, J.App. 120, and that Ehrlichman on or about June 26, 1972, at a meeting in the White House with Dean approved the suggestion that Dean ask the Deputy Director of the CIA whether that agenr cy could use cover funds to pay the bail and salaries of those involved in the Watergate break-in. Indictment, Count 1, Overt Act fl 8, J.App. 71.
. Government Brief at 133 n. 210: “[T]he argument only could have merit'if [the defendant] has been surprised by proof of the ‘other means’ and thus did not have adequate warning in order to prepare his defense. There was no surprise here.”
. United States v. Stewart,
. This rule applied in the interpretation of statutes and other written documents, declares that, unless otherwise indicated, when general words follow an enumeration of particular classes of persons or things the general words will be construed as applying only to the same general class as those previously enumerated. United States v. Baranski,
. Weyerhauser S.S. Co. v. United States,
. If this indictment were to be interpreted as the Government urges, vital constitutional rights of the defendants would be denied. Even though the law has moved away from “rules of technical and formalized pleading which . . characterized an earlier era,” Russell v. United States,
The rationale for this requirement is that, under the Sixth Amendment every accused person has a “right to be informed of the nature and cause of the accusation” and under the Fifth Amendment and Fed.R.Crim.P. 7(a), offenses such as are here involved must be prosecuted by a grand jury indictment. After the grand jury has returned its indictment, the charges may not be broadened or amended by the court or the prosecutor — only the grand jury itself can do that. Stirone v. United States,
In the present case, the statute proscribing obstruction of justice is in generic terms: “Whoever corruptly . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined . . ..” 18 U.S.C. § 1503 (1970). Recognizing this, the Grand Jury descended to factual particulars and specified the general character of the acts by which a particular process of justice (a grand jury investigation) was allegedly obstructed. Such factual specificity was necessary to inform the defendants of the crime with which they were charged, to enable them to plead a conviction or acquittal thereon against a future prosecution for the same offense, and to permit the court to determine the facts necessary for conviction.
Count 2 of the indictment would not have been sufficient if it had only alleged that the defendants obstructed a grand jury investigation by various (unspecified) means. By the same logic, it would not be sufficient if we interpreted “other means” to mean “any other (unspecified) means.” An indictment drawn in either of these terms would fail both of the above-mentioned tests. First, it would not fairly inform the defendants of the charges against them. In United States v. Nance, supra, we found an indictment for false representations to be fatally deficient because, although it alleged that representations were made, it did not specify what they were. This left it open for the United States Attorney to insert the vital part of the indictment without reference to the Grand Jury, op. at 474 of
Second, the defendants would not legally be entitled to argue that a conviction or acquittal on Count 2 constituted a bar to a future prosecution on charges of obstructing justice by using the CIA to block the FBI’s investigation, since the indictment makes no mention of that offense. Likewise, there would be no assurance that the evidence offered as factual basis in court in proof of the count was the same as that which the prosecutor presented to the Grand Jury. This error is fatal under Stirone, supra.
For these reasons, interpreting Count 2 here to allow a conviction on the charge of obstruction of justice to be based solely on the evidence that appellants defrauded the government by misusing the CIA to delay the investigations into the Watergate break-in violates appellants’ constitutional rights under the Fifth and Sixth amendments. In order to avoid such constitutional error, the “other means” allegation of the indictment must be construed in accordance with the rule of ejusdem generis.
. See, e.g., Government Brief at 16-18. By contrast, the “hush money” and other offers allegations of the indictment would permit the introduction of evidence on Count 2 that Mitchell and Mardian suggested to Dean that the CIA be requested to provide covert funds so payments of money could be made to assist those involved in the Watergate break-in, Tr. 2729-30, 6610, and thаt Ehrlichman, at Dean’s suggestion, approved asking the Deputy Director of the CIA for such funds. Tr. 2730-31, 2733-37, 6135-36, 6141. Such evidence is of the same general character as is the charge in Count 2 of the indictment that appellants corruptly endeavored to obstruct justice “by making cash payments.” This was only an attempted misuse of the CIA. It never succeeded.
. In closing the prosecutor argued:
Mr. Haldeman then said it is the President’s wish that General Walters go to the Acting Director of the FBI and explain to him that the pursuit of this investigation in Mexico might uncover some CIA assets or channeling. And since the five suspects had been arrested, it would be better that this matter were not purshed [sic ] further since it might uncover some operation of the CIA.
Utterly, totally, completely false. It might uncover a connection between the Committee to Re-elect the President and the Watergate burglars, and if you have any doubt about it, get the tape and listen to the tape of June 23 which is Government Exhibit 1 if you
have any doubt about what they were afraid would be uncovered.
Tr. 11,580.
He marches out of the White House and marches over to see Mr. Pat Gray over at the Department of Justice Building and he says to Mr. Gray: Look, you have got five people arrested and if you go into Mexico, you might uncover some CIA assets or operations. Since you got five arrested it is best to taper off the investigation now.
That is what happened, ladies and gentlemen of the jury. And let me just tell you what Mr. Haldeman said on the stand about that sad episode. He is asked this: Now you say the reason for calling the CIA in was to get the FBI to stop the investigation was for this motive to avoid political embarrassment? Answer: That is my understanding, yes.
Tr. 11,581.
As a result, members of the jury, as a result of Mr. Haldeman’s, Mr. Ehrlichman’s and Mr. Nixon’s directions the FBI investigation was thwarted for two weeks — from June 23 until July 6th.
Ladies and gentlemen of the jury, as I mentioned a while ago, it is the corrupt endeavor to obstruct justice that is the offense. If it were thwarted for two seconds, or two minutes, or ten minutes, or two weeks as it was, it is irrelevant. It was thwarted, it was stopped, it was killed in its tracks for two weeks and that is the obstruction of justice.
Tr. 11,582 (emphasis added).
. The court here charged the jury on criminal intent:
If you find that a defendant’s intent was innocent, you must find him not guilty.
(Tr. 12,382) (emphasis added). In United States v. Alston, supra, the court found that the jury had not “fully understood the interplay between the ‘identification’ and ‘alibi’ instructions”; i.e., that the Government had to prove the identity of the defendant beyond a reasonable doubt, but the defendant did not bear the same burden as to “alibi.” The same difference exists here between proving guilt and innocence. If Alston were applied here the instruction on intent should have been:
If you have a reasonable doubt that a defendant’s intent was corrupt, you must find him not guilty.
The strictness of Alston should raise a similar doubt about the charge on intent and certainly would direct a reversal for the “misusing the CIA” instruction. Thus if Alston were good law, which I doubt, this case should be reversed too on the same ground. The failure of my colleagues to even consider the application of this recent decision to this case further puzzles me.
.
. The Seventh Circuit decision in Glasser described the factual allegations of the indictment. They were very lengthy .and we set them out only to prove the gross distortion of principle indulged in by the majority.
The indictment in substance charged that the defendants and divers other persons to the grand jurors unknown, conspired to defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the Courts of the United States by an Assistant United States Attorney, to prosecute certain delinquents for crimes and offenses cognizable under the authority of the United States as the same should be presented and determined according to law and justice, free from corruption, improper influence, dishonesty or fraud, and more particularly its right to a conscientious, faithful and honest representation of its interest in certain suits and causes brought and pending in the United States in*393 the Northern District of Illinois by promising, offering, causing and procuring to be promised and offered, money and other things of value to an officer of the United States, and to persons acting for and on behalf of the United States in an official function under and by authority of a department and office of the Government of the United States, with intent to influence his decision and action on certain questions and causes which were at times pending, and which were by law brought before such officer in his official capacity, and with the intent to influence to commit and in committing, and to collude in committing certain frauds on the United States, and to induce such officer to do and to omit from doing certain acts in violation of his lawful duty.
The indictment further alleged that Glasser was an Assistant United States Attorney for the Northern District of Illinois, employed to prosecute all delinquents for crimes and offenses cognizable under the authority of the United States, and as such he did act for and on behalf of the United States in certain official functions under and by authority of the Department of Justice of the United States, and as such officer he had certain decisions to make and actions to take on certain questions, causes and proceedings brought before him in the performance of his duties as such Assistant United States Attorney; that it was part of the conspiracy that the defendants would solicit certain persons named in the indictment, charged with violating or about to be charged with violating the laws of the United States, to promise or cause to promise money to be paid or pledged to the defendants to be used to influence and corrupt Glasser in his official capacity in his decisions on certain questions, causes and proceedings, with the intent that the defendants would accept and use said money to corruptly, wrongfully and improperly influence Glasser in his decisions and thus allow a fraud to be committed on the United States in violation of his lawful duties as an Assistant United States Attorney.
The indictment further alleged that Glasser would meet and hold conversations with the other defendants and inform them what they should do to carry out the conspiracy and would instruct them as to what steps or action each of them would take in the matters in which he was representing the United States Government and thus Glasser conspired with the other defendants to defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the courts of the United States by an Assistant United States Attorney.
United States v. Glasser,
. It takes three and one-half pages in the Supreme Court reporter to describe the factual allegations of the indictment, Burton v. United States, 202 U.S. 344, 361-65,
. 18 U.S.C. § 371 provides:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
. Three minor points: (1) There is no claim here of a second prosecution so most of the discussion as to possible double jeopardy need not be answered.
(2) There is no basis in fact or logic for the following statements in the majority opinion:
The limitation of the FBI investigation means, though not specifically alleged, certainly fits comfortably under “other means” of obstruction just as it does under the general language of Count 1. In fact, the allegations of conspiracy to obstruct justice and to defraud the United States in Count 1 are the basis of the allegations of the substantive offense of obstruction of justice in Count 2.
Majority opinion at 351 of 181 U.S.App.D.C.,at 128 of 559 F.2d.
To assert that the “limitation of the FBI investigation . . . fits comfortably under ‘other means’ of obstruction just as it does under the general language of Count 1” is a complete misapplication of the normal meaning of words. There is absolutely nothing about the words “other means” in an indictment, preceded by two specific factual allegations identifying an offense, that would give any indication that they included anything so specific as limiting an FBI investigation. Of course, if one were to construe them, as the majority apparently does, to include all other means in the world then everything would be included. But that cannot be done in an indictment. So the limitation alleged does not fit comfortably under “other means” of obstruction.
And to liken the generality of the “other means" allegation in Count 2 to the “general language of Count 1” misdescribes the allegations of defrauding the government which were contained in Count 1. A single quotation from the indictment will prove the point. Count 1 of the indictment charged that the defendants did
conspire (inter alia) . . .to defraud the United States and Agencies and Departments thereof, to wit, the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the Department of Justice, of the Government’s right to have the officials- of these Departments and Agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty, unlawful impairment and obstruction, all in violation of Title 18, United States Code, Section 371.
That is a specific allegation of conspiring to defraud the government. The rest of the alleged conspiracy sought to obstruct justice and to make false statements and declarations. These were specific allegations. It would not have been legally permissible to introduce evidence of a conspiracy to commit any other offense — as the majority argues.
(3) My views on the disqualification of the judge are set forth in my separate opinion in Mitchell v. Sirica, 163 U.S.App.D.C. 373,
. Since females will be available to answer telephones to a significantly greater extent than males, this procedure is necessary to assure that the composition of the total sample approximates the actual ratio of males to females in the population.
. In making these tabulations, males and females were computed separately, projected to reflect the correct proportions of males to females in the general population, and the figures as so projected were then combined for an overall percentage. The percentages so derived were then rounded to the nearest whole number.