United States v. John D. Ehrlichman

On 7 March 1974 the appellant, John D. Ehrlichman, was indicted and charged with conspiracy in violation of the civil rights of Dr. Louis J. Fielding (Count I),1 making a false statement to agents of the Federal Bureau of Investigation (Count II),2 and three counts of perjury (Counts III-V).3 Also indicted, on the conspiracy charge alone, were G. Gordon Liddy, Bernard Barker and Eugenio Martinez.4 The trial commenced on 26 June 1974; on 12 July the jury returned a verdict of guilty as to Counts I-IV and not guilty as to Count V. Subsequently, the trial court entered a judgment of acquittal with respect to Count II. This appeal, therefore, is addressed to Ehrlichman's conviction on Counts I, III, and IV, conspiracy and perjury.

The publication of the "Pentagon Papers"5 in the summer of 1971 spurred the President to form a "Special Investigations" or "Room 16" unit within the White House, whose purpose was to investigate the theft of the Pentagon Papers and prevent other such security leaks. Defendant Ehrlichman, who was the Assistant to the President for Domestic Affairs, exercised general supervision over the unit; Egil Krogh and David Young were charged with its operation. At the time, Krogh was an assistant to Ehrlichman; Young worked with the National Security Council. They sought, and received, Ehrlichman's approval to add G. Gordon Liddy, a former F.B.I. agent, and E. Howard Hunt, a former C.I.A. agent, to the unit.

Appellant's brief describes the activity of the unit, insofar as pertinent, as follows (Br. 6-8): The unit's principal enterprise seemed to be the acquisition of all files and source material on Daniel Ellsberg. There was a generalized concern over his motives for releasing classified materials (the Pentagon Papers). Young and Krogh instructed the CIA to do a psychological profile on Ellsberg. Since Dr. Fielding had refused an interview by the FBI on the ground of doctor/patient confidentiality, Hunt suggested examining Dr. Fielding's file on Ellsberg, and further suggested a "black bag job" (surreptitious entry) while noting that the FBI no longer engaged in such activities. When Young reviewed the psychological assessment on Ellsberg prepared by the CIA, he determined that it was superficial, and recommended that a "covert operation be undertaken to examine all the medical files held by Ellsberg's psychoanalyst." The exhibit reflects Ehrlichman's approval of the recommendation with his addition: "Provided that it is not traceable back to the White House."6

The members of the unit were clear that the "covert operation" in question would be a surreptitious entry into Dr. Fielding's office. Ehrlichman's primary defense at trial, however, was that he was not apprised of, and thus did not authorize, such an entry. He testified that he thought he had approved only a conventional private investigation, involving no surreptitious search of Dr. Fielding's office. Considerable evidence was introduced on both sides of the question. The jury's guilty verdict on the conspiracy Count I reflected a finding that Ehrlichman had in fact authorized the search.

Krogh and Young insisted that no one employed by the White House was to effect the actual entry into Fielding's office. Hunt traveled to Miami in mid-August 1971 to enlist the assistance of Bernard Barker, who had worked under Hunt during the Bay of Pigs operation. Hunt was widely known and respected in Miami's Cuban-American community as a government agent who had been a leader in the fight to liberate Cuba. He did not identify the object of the search, but told Barker only that the operation involved a traitor who had been passing information to the Soviet Embassy. On the basis of this information Barker recruited two men, Eugenio Martinez and Felipe de Diego, for the operation.

Hunt and Liddy met Barker, Martinez, and de Diego in Los Angeles on 2 September 1971. The Miamians were informed their mission was to enter Dr. Fielding's office, that Dr. Fielding was not himself the subject of the investigation, but that they were to photograph the file of one of his patients (they were not told Ellsberg's name until minutes before the break-in) and return the file to its place. On 3 September Barker and de Diego, dressed as deliverymen, delivered a valise containing photographic equipment to Dr. Fielding's office, enabling them at the same time to unlock the door to facilitate subsequent entry. Later that evening they and Martinez, contrary to expectations, found both the building and Dr. Fielding's office locked. The Miamians forced their way into the building, broke the lock on the office door, and used a crowbar on Dr. Fielding's file cabinets. As instructed if this became necessary, they spilled pills and materials about the office to make it appear that the break-in was the work of a drug addict. Throughout the operation surgical gloves were used to avoid fingerprint detection. In spite of all efforts, Ellsberg's records eluded them.

After relating the details of the entry and their lack of success to Hunt, Barker, Martinez, and de Diego returned to Miami. Hunt and Liddy returned to Washington, where they reported the failure of the operation to Krogh and Young. Krogh relayed that information to Ehrlichman.7

White House involvement in the break-in remained unknown for almost two years. When the facts about the operation began to surface, however, on 14 March 1973 Ehrlichman was called before the grand jury to testify about his knowledge of the affair. He stated that he had not been aware prior to the break-in that the Room 16 unit was looking for information with which to compose a psychological profile of Ellsberg, and had had no advance knowledge that an effort was to be made to get such information from Dr. Fielding. One year later he was indicted, subsequently tried and convicted, for his role in authorizing the break-in and for his efforts to conceal his involvement by lying to the grand jury.

Ehrlichman raises on appeal two substantive challenges to his conviction under 18 U.S.C. § 241 of conspiracy to violate the Fourth Amendment rights of Dr. Fielding. The first is that the break-in, although conducted without a judicial warrant, did not violate the Fourth Amendment, because it was undertaken pursuant to the President's delegable constitutional prerogative in the field of foreign affairs to authorize such a search. The second argument is that even if the search was unjustified in either law or fact and thus illegal, the Special Prosecutor failed to meet his burden under section 241 of proving Ehrlichman acted with a "specific intent" to interfere with Dr. Fielding's constitutional rights. As we interpret the case law surrounding section 241, the first issue that of the applicability under these circumstances of the "foreign affairs" exemption to the warrant requirement is bound up in the second. They will be discussed together in Part II below.

Ehrlichman does not challenge his conviction of two counts of perjury on substantive grounds relating particularly to those counts or to the law of perjury. He does, however, attack his conviction as a whole both for conspiracy and for perjury on a number of grounds relating to the fairness of the trial and certain of the District Court's procedural rulings. His principal argument is that he was denied a fair trial, in the light of prejudicial pre-trial publicity, when the court failed to dismiss the indictment, continue or change the venue of the trial, or conduct a voir dire adequate to eliminate possibly prejudiced jurors. Our close examination of the procedures followed by the trial judge has satisfied us that he properly made the determinations required of him under the controlling decisions of this court.8

Subsidiary arguments advanced by Ehrlichman against the conduct of the trial are levelled at the District Court's decision not to sever Ehrlichman's prosecution from that of his co-defendants, the court's refusal to order certain discovery Ehrlichman claimed was important to his defense, and the court's failure to require then-President Nixon to testify or to respond to detailed interrogatories propounded by Ehrlichman.9 These issues we take up in Part III.

II. GOOD FAITH AS A DEFENSE TO "SPECIFIC INTENT" UNDER 18

The most substantial argument advanced by defendant Ehrlichman on appeal from his conviction under 18 U.S.C. § 24110 is that the District Court's mistaken legal view of the statute's "specific intent" requirement led the court to commit reversible error, both in ruling on the admissibility of certain evidence sought to be introduced by him and in instructing the jury on the basic elements of the offense. Not every conspiracy affecting a citizen's constitutional rights falls within the prohibition of section 241. It is settled law that "the offender must act with a specific intent to interfere with the federal rights in question . . .."11 Ehrlichman contends that he acted without the requisite "specific intent" to invade Dr. Fielding's Fourth Amendment rights, since he agreed to a search of the doctor's office in the good faith belief that it would involve no violation of the law, constitutional or otherwise.12

Prior to trial Ehrlichman and his co-defendants presented this theory of the case to the District Court in connection with motions for discovery of certain national security information.13 They took the position that the information would provide factual support for their asserted belief in the legality of the Fielding operation. The District Court rejected the defendants' theory, and their motions, in the following language:

Defendants contend that, even if the break-in was illegal, they lacked the specific intent necessary to violate section 241 because they reasonably believed that they had been authorized to enter and search Dr. Fielding's office. As explained above, however, such authorization was not only factually absent but also legally insufficient, and it is well established that a mistake of law is no defense in a conspiracy case to the knowing performance of acts which, like the unauthorized entry and search at issue here, are malum in se. (Cites) As the Supreme Court said in Screws v. United States, 325 U.S. 91, 106, 65 S.Ct. 1031, 1037, 89 L.Ed. 1495 (1945), "(t)he fact that the defendants may not have been thinking in constitutional terms is not material (to a charge under § 242, a related specific intent statute,) where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution." Here, defendants are alleged to have intended to search Dr. Fielding's office without a warrant, and their mistaken belief that such conduct did not offend the Constitution would not protect them from prosecution under section 241. See also Williams v. United States, 341 U.S. 97, 101-102, 71 S.Ct. 576, 95 L.Ed. 774 (1951).14

As a result of the District Court's ruling, Ehrlichman was restricted during the trial in his ability to obtain and introduce evidence of the national security circumstances surrounding the Fielding operation. At the end of the trial, the court rejected jury instructions which provided that belief in the legality of one's conduct could negate "specific intent" under section 241, and advised the jury that the requisite intent would be established under section 241 if the Prosecutor showed simply "that the object of the conspiracy and the purpose of each defendant was to carry out a warrantless entry into and search of Dr. Fielding's office without permission."15

The trial judge's position, as set forth in both his pre-trial opinion and in his instructions to the jury, unquestionably states the law with regard to the vast majority of criminal conspiracies. Even though all such conspiracies are crimes of "specific intent" in that the defendant must not only combine with others but also intend to commit unlawful acts16 generally there is no requirement that the conspirator know those acts to be unlawful.17 A mistake as to the legality of the prohibited activity, therefore, is no defense.18

The doctrine that a mistake of law will not excuse a crime normally applies in conspiracy cases even when the target offense itself has "specific intent" as an element.19 The reason for this is that the mental state required for most "specific intent" offenses does not involve knowledge of illegality.20 If the recognition of the unlawfulness of one's action is not an element of the substantive crime, neither is it a component of the offense of agreeing to commit the crime.

Significantly, however, some "specific intent" crimes can be committed only if the defendant performs the actus reus with an intention to violate the law, or without ground for believing his action is lawful. A good faith mistake as to the legality of his activity, or failure to act, is a valid defense to prosecution for such a crime.21 Equally important, such a mistake necessarily also constitutes a defense to a charge of conspiracy to commit this kind of "specific intent" crime.

In sum, whether the District Court properly rejected the good faith defense proffered by Ehrlichman is a question whose answer rests, in the first instance, on the mens rea required to commit the target offense under section 241. We examine the nature of that section's "specific intent" requirement in Subsection A and apply our legal findings to the facts surrounding the Fielding break-in in Subsection B, infra. Our conclusion is that under the circumstances of this case the District Court did not err in rejecting the defendant's good faith defense.22

A. The "Specific Intent" Requirement of Section 241

The substantive counterpart to section 241 is 18 U.S.C. § 242, which provides in pertinent part:

Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States, . . . shall be fined not more than $1,000 or imprisoned not more than one year, or both; and if death results shall be subject to imprisonment for any term of years or for life.

The seminal case dealing with the element of mens rea under section 242 is Screws v. United States.23 The defendants in Screws, law enforcement officials who had beaten a prisoner to death, were charged with denying that individual various of his due process rights under the Fourth Amendment. They countered with an attack on the constitutionality of section 242 arguing that if it incorporated such a large body of changing and uncertain law as surrounds the concept of due process, the statute lacked the basic specificity essential to criminal statutes under our legal system.24

The Court acknowledged that this "vagueness" challenge would be serious if the "customary standard" of guilt for statutory crimes were applied under section 242.25 The presence of the term "willfully" in the statute, however, afforded the Court, a convenient means for narrowing its potential reach not only to fulfill the constitutional requirement of specificity but also to prevent the federal statute from becoming a "catchall" which might interfere with the traditional law enforcement role of the states.26 The Court noted, first, that precise construction of the word "willful" in a statute was dependent on its context. "But 'when used in a criminal statute it generally means an act done with a bad purpose.' "27 It requires a particular intent in addition to the performance of the act required by the statute.

The Court determined that for the purposes of section 242 acting "willfully" meant acting with "a purpose to deprive a person of a specific constitutional right,"28 "made definite by decision or other rule of law."29 Such a construction, in the Court's view, would cure the problem of vagueness presented by the statute:

One who does act with such specific intent is aware that what he does is precisely that which the statute forbids. He is under no necessity of guessing whether the statute applies to him . . . for he either knows or acts in reckless disregard of its prohibition of the deprivation of a defined constitutional or other federal right. . . . The Act would then not become a trap for law enforcement agencies acting in good faith. "A mind intent upon willful evasion is inconsistent with surprised innocence." United States v. Ragen, (314 U.S. 513, 524, 62 S.Ct. 374, 378, 86 L.Ed. 383 (1942).)30

The Court observed that the indictment in United States v. Classic,31 an earlier case involving section 242, met the test of "specific intent" it had just laid down. That indictment charged the defendants with, inter alia, the willful alteration of ballots. Such alteration, the Court emphasized, clearly breached a right expressly guaranteed by the Constitution viz., the right to vote. The indictment did not charge that the defendants had acted with the specific intent to deprive voters of their constitutional prerogatives. Nevertheless, the Court concluded:

Such a charge is adequate since he who alters ballots or without legal justification destroys them would be acting willfully in the sense in which (§ 242) uses the term. The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce local law but to deprive a citizen of a right and that right was protected by the Constitution. When they so act they at least act in reckless disregard of constitutional prohibitions or guarantees.32

Turning to the charge against the defendants in Screws itself, the Court observed, "Likewise, it is plain that basic to the concept of due process of law in a criminal case is a trial a trial in a court of law, not a 'trial by ordeal.' "33 No allegation of intent to breach a constitutional right, therefore, was necessary. The Court held that the "specific intent" requirement of section 242 would be met if the jury were instructed simply that to convict they must find the defendants had beaten their prisoner to death with the particular purpose of subjecting him to a trial by ordeal.34

Although some of the language in Screws can be read more broadly, its holding essentially sets forth two requirements for a finding of "specific intent" under section 242. The first is a purely legal determination. Is the constitutional right at issue clearly delineated and plainly applicable under the circumstances of the case? If the trial judge concludes that it is, then the jury must make the second, factual, determination. Did the defendant commit the act in question with the particular purpose of depriving the citizen victim of his enjoyment of the interests protected by that federal right? If both requirements are met, even if the defendant did not in fact recognize the unconstitutionality of his act, he will be adjudged as a matter of law to have acted "willfully" i. e., "in reckless disregard of constitutional prohibitions or guarantees."

These "specific intent" requirements, grafted by the Supreme Court onto the elements of a section 242 violation, met the Court's twin concerns of vagueness and federalism in Screws. On the one hand, the requirement that the constitutional right in question be clearly established provides the specificity needed for a criminal statute to meet minimal standards of due process. On the other hand, the requirement that the defendant have a purpose to infringe federally protected interests preserves the states' traditional prerogative to prosecute and punish those who commit ordinary crime. For example, as Screws illustrates, the Constitution clearly grants protection to a citizen's interests in not being punished by governmental officials without a trial. There is no violation of section 242, however, if a sheriff and his deputies commit a murder for purely personal, nongovernmental reasons. The state can, and should, deal with such crime. Section 242 comes into play only if the object of the murder was to punish a prisoner for past illegal acts, or for some other purpose stemming from the official position of those committing the homicide.

The same principles apply to prosecutions for conspiracy under section 241. Although the language of sections 241 and 242 is somewhat different indeed, section 241 does not contain the word "willfully"35 the Supreme Court has made clear since Screws that the "specific intent" requirements of section 242 are equally applicable (or derivatively applicable) to section 241.36 In United States v. Guest,37 decided in 1966, the Court reversed the dismissal of an indictment charging the defendants with violating section 241 by, inter alia, conspiring to intimidate blacks in the free exercise of the right of interstate travel. The Court observed, first, that the rights of equal utilization of public facilities and freedom of travel had been firmly established and repeatedly recognized; therefore, the requirement of constitutional clarity presented no difficulty.38 Second, the Court noted with reference to the right to travel that under Screws not every criminal conspiracy which incidentally interfered with that right is prohibited by section 241. A conspiracy to rob a private person who happens to be traveling interstate, for example, would not violate section 241, because it would entail no purpose to invade federally protected interests.39 On remand, therefore, the Court found that the prosecution would have to show the defendants conspired to intimidate an individual because he was traveling interstate.40

39. Attorneys General in certain circumstances have permitted warrantless foreign intelligence surveillance involving a technical trespass solely for the purpose of placing a bug.

Most recently, in Anderson v. United States,41 decided in 1974, the Court reaffirmed and further elucidated the "specific intent" requirements of section 241. Since the constitutional right in question was the right to an equal vote in a federal election, the defendants convicted of casting false votes could not be assailed on the ground that the federal interests involved were not clear and firmly established.42 Rather, the main issue was whether an intent to invade those federal interests had been proven, in view of the fact that the primary objective of the conspiracy was to influence a local election even though false votes had been cast for candidates for federal office as well. The Court found adequate evidence of "specific intent," concluding:

A single conspiracy may have several purposes but if one of them whether primary or secondary be the violation of federal law, the conspiracy is unlawful under federal law.

That petitioners may have had no purpose to change the outcome of the federal election is irrelevant. The specific intent required under § 241 is not the intent to change the outcome of a federal election, but rather the intent to have false votes cast and thereby injure the right of all voters in a federal election to express their choice of a candidate and to have their expressions of choice given full value and effect, without being diluted or distorted by the casting of fraudulent ballots.43

Screws and its progeny thus compel the conclusion that the specific intent required to violate section 241 is the purpose of the conspirators to commit acts which deprive a citizen of interests in fact protected by clearly defined constitutional rights. If that purpose was present, there is no "good faith" defense, such as Ehrlichman proffers, because of lack of awareness of the conspirators at the time they commit the proscribed acts that they are violating constitutional rights. There is no requirement under section 241 that a defendant recognize the unlawfulness of his acts.

It should be added here that there is also no support for Ehrlichman's position in any of the recognized common law exceptions to the mistake of law doctrine, which are developed more fully in our opinions in the companion decision on Barker and Martinez. Ehrlichman's reliance on Pierson v. Ray44 is misplaced. In Pierson the Supreme Court held that a police officer sued under 42 U.S.C. § 1983 for an unlawful arrest could raise as a defense his reliance on a statute which he reasonably believed to be valid but which was later held unconstitutional. Assuming arguendo that an analogous defense should be made available in a criminal case,45 it still cannot avail the defendant here. As is detailed in Subpart II.B., infra, the violation of the Fourth Amendment in this case was clear. Ehrlichman cannot and does not argue that he should be allowed a defense based upon his reasonable reliance on an apparently valid statute or judicial decision, nor does his invocation of the claimed foreign affairs exception to the warrant requirement avail him, for even the claim of a foreign affairs exception has consistently been conditioned on specific approval by the President or the Attorney General. Ehrlichman was himself a high government official. He does not contend that specific judicial or Presidential approval was obtained for the Fielding break-in. He simply asserts that it was his belief that the break-in was lawful notwithstanding the absence of any such specific approval. Such a mistake of law can be no defense. Neither Pierson nor any other authority countenances an exception to the mistake of law doctrine in such a situation.

It still remains to determine whether the instructions the court gave the jury met the two-pronged test of "specific intent" laid down in Screws. We turn now to this inquiry.

B. Conformity of Jury Instructions with "Specific Intent" Requirements

1. The Requirement that the Protected Right Be Firmly Established and Plainly Applicable

Defendant Ehrlichman is charged with violating Dr. Fielding's Fourth Amendment rights by conspiring in the breaking and entering of his office. The Fourth Amendment provides that "the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated; and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Although the best means of protecting this right against incursions by "overzealous executive officers"46 has been subject to some debate,47 the core meaning of the Fourth Amendment was clear well before defendants conspired to search Dr. Fielding's files:

(T)ranslation of the abstract prohibition against "unreasonable searches and seizures" into workable guidelines for the decision of particular cases is a difficult task . . . . Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is "unreasonable" unless it has been authorized by a valid search warrant. . . .48

United States v. United States District Court (Keith) capsulized that historic approach in noting that "physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed."49 "The very heart of the Fourth Amendment directive"50 is that "where practical, a government search and seizure should represent both the efforts of the officer to gather evidence of wrongful acts and the judgment of the magistrate that the collected evidence is sufficient to justify invasion of a citizen's private premises or conversation."51 The framers formulated that directive against the background of Entick v. Carrington,52 a case found by the Supreme Court in Boyd v. United States53 to be "sufficiently explanatory of what was meant by unreasonable searches and seizures." Entick overturned an executive warrant to search the studies of political dissidents.54

As a general proposition, few would question the clarity of the Fourth Amendment right of every citizen to be free from governmental searches and seizures unless sanctioned by judicial warrant based on probable cause. For the purposes of section 241, however, that right may not be clear in an individual case if the circumstances are such that an exception to the warrant requirement may be invoked. Just how clear was Dr. Fielding's right to be free from the search directed by defendant Ehrlichman is the question we examine at this point.

In pre-trial proceedings before the District Court Ehrlichman claimed that the break-in was not in violation of Dr. Fielding's Fourth Amendment rights and developed a contention along the following lines: The entry was undertaken pursuant to an authorized "foreign affairs" or "national security" operation. Since 1940 the "foreign affairs" exception to the prohibition against wiretapping has been espoused by the Executive Branch as a necessary concomitant to the President's constitutional power over the exercise of this country's foreign affairs, and warrantless electronic surveillance has been upheld by lower federal courts on a number of occasions.55 No court has ruled that the President does not have this prerogative in a case involving foreign agents or collaborators with a foreign power.56 The Supreme Court, in a number of decisions requiring officials to obtain a warrant before engaging in electronic surveillance, has been careful to note that its rulings do not reach such cases.57

Hoping to fall within this as yet not fully defined exception, Ehrlichman urges that in September 1971 "in a matter affecting national security and foreign intelligence gathering" the absence of a judicially approved warrant did not render unlawful "a search and seizure authorized by a presidential delegate pursuant to a broad Presidential mandate of power given to that delegate."58

Ehrlichman further argues that no specific authorization by the President or the Attorney General was required:

Implicitly, an instruction to accomplish an end carries with it the duty of performing all lawful acts necessary to accomplish that end. In the instant case, the President delegated the power, to sworn officials of the Executive Branch, including Appellant Ehrlichman, to prevent and halt leaks of vital security information. To contend that the President must specifically chart out the methods of employing the power, each and every time he delegates power is absurd.59

The District Court ruled as a matter of law that the national security exemption did not excuse the failure to obtain a judicial warrant for a physical search of Dr. Fielding's office60 either because there is no exemption for physical searches61 or because the exemption can only be invoked by the President or the Attorney General in a particular case.62 This holding, which governed pre-trial discovery instructions to the jury, blocked any evidentiary inquiry into the factual basis for Ehrlichman's alleged belief that the Fielding "covert operation" could yield significant foreign intelligence information. For purposes of this appeal, we accept as possible of proof that probable cause existed for the operation, so that if application for a warrant had been made it would have been granted.

The District Court's ruling was based on two premises. The first is that the "national security" exemption has been "carefully limited to the issue of wiretapping, a relatively nonintrusive search."63 The circuit court decisions setting forth such an exemption for "the special problem of national security wiretaps"64 do not go so far as to dispense with the need for a warrant as a requirement for "physical entry of the home . . . the chief evil against which the wording of the Fourth Amendment is directed."