Appendix — Ehrlichman v. United States

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ä —— D— — JR, QERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1976

JOHN D. EHRLICHMAN,

Petitioner,

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

WM. SNOW FRATES

FRATES, FLOYD, PEARSON, STEWART,

RICHMAN & GREER, P.A.

25th Floor, One Biscayne Tower

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Of Counsel (305) 377-0241

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Attomeys for Petitioner

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Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S. App. D.C. — 2 Users are requested

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United States Cuurt uf Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 75-1381

UNITED STATES OF AMERICA

v. 5

HARRY R. HALDEMAN, APPELLANT

No. 75-1382

UNITED STATES OF AMERICA

JOHN D. EHRLICHMAN, APPELLANT

No. 75-1384

UNITED STATES OF AMERICA

JOHN N. MITCHELL, APPELLANT

No. 76-1441 *

—

UNITED STATES OF AMERICA

HARRY R. HALDEMAN and

JOHN D. EHRLICHMAN, APPELLANTS

Appeals from the United States District Court for the

District of Columbia

(D.C. Criminal No. 74-110)

Argued January 6, 1976

Decided October 12, 1976

John J. Wilson, with whom Frank H. Strickler, Ross

O Donoghue, and George A. Fisher (at the time the case

was argued) were on the brief, for appellant in No. 75-

1381. Messrs. Strickler and O’Donoghue were on the

brief for appellant Haldeman in No. 76-1441.

William Snow Frates, with whom Andrew C. Hall was

on the brief, for appellant in No. 75-1382. Messrs. Frates

and Hall were on the brief for appellant Ehrlichman in

No. 76-1441.

* For the reasons stated in its memorandum opinion, we find

that the District Court did not abuse its discretion in denying

the motion of appellants Haldeman and Ehrlichman for a

new trial. The judgment of the District Court in No. 76-1441

is therefore affirmed.

ee oe

William G. Hundley, with whom Plato Cacheris, Robert

S. Erdahl, and Cary Mark Feldman were on the brief,

for appellant in No. 75-1384.

Peter M. Kreindler, Counsel to the Special Prosecutor,

with whom Henry S. Ruth, Jr., Special Prosecutor at the

time the brief was filed, Peter F. Rient, Kenneth S.

Geller, Maureen E. Gevlin, Jay B. Stephens, and Judith

A. Denny, Assistant Special Prosecutors, and Sidney M.

Glazer, Attorney, Department of Justice, were on the

brief, for appellee in Nos. 75-1381, 75-1382, and 75-1384.

Charles F. C. Ruff, Special Prosecutor, and Peter M.

Kreindler and Paul Hoeber, Special Assistants to the

Special Prosecutor, were on the brief for appellee in No.

76-1441.

Before BAZELON, Chief Judge, and WriGcHT, Mc-

GOWAN, LEVENTHAL, ROBINSON, and MACKINNON, Cir-

cuit Judges, sitting en bane.

Opinion for the court per curiam.

Dissenting opinion filed by Circuit Judge MACKINNON.

PER CURIAM’: On March 1, 1974 a grand jury in

Washington, D.C. returned a 13-count indictment against

seven individuals. It charged what amounted to an un-

precedented 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

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.

staff; John D. Ehrlichman, once Assistant for Domestic

Affairs to the President; Charles W. Colson, former Spe-

cial 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. The counts of the indict-

ment embraced conspiracy, 18 U.S.C. § 371 (1970), ob-

struction of justice, id. § 1503, and various instances of

false statements made to the Federal Bureau of Investi-

gation (FBI), id. S 1001, to the grand jury, id § 1623,

and to the Senate Select Committee on Presidential Cam-

paign Activities, id. § 1621.“ J. A. 65-112.

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. How-

ard Hunt, Jr., Herbert W. Kalmbach, Fred C. LaRue, G. Gor-

don Liddy, Jeb S. Magruder, Eugenio R. Martinez, James W.

McCord, Jr., Richard M. Nixon, Paul O’Brien, Frank L. Stur-

gis, and Anthony T. Ulasewicz. J.A. 483. Several of these in-

dividuals have been convicted in other cases of various offenses

connected with the Watergate incident.

’ Count 1 charged all defendants with conspiracy to ob-

struct justice, to make false statements to a government

agency, and to defraud the United States 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 Mitchell with making various false state-

ments—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.

Five defendants ultimately went to trial together be-

fore 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.‘ The jury acquitted

Parkinson, found Mardian guilty of conspiracy, the only

offense with which he was charged, and convicted Mitchell,

Haldeman, and Ehrlichman of both conspiracy and ob-

struction of justice, as well as all the individual perjury

counts submitted. Sentences of imprisonment were im-

posed,“ and those convicted have appealed. We deal in

the instant appeals only with the convictions of Halde-

man, Ehrlichman, and Mitchell.’ We affirm.

*The charges against Strachen were later dismissed pur-

suant 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 Govern-

ment’s case.

* Mardian received a sentence of 10 months to three years

in prison. Mitchell, Haldeman, and Ehrlichman were sen-

tenced 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, No. 75-1383.

I. THE FAcTs

Evidence at trial* consisted of both direct testimony

and actual tape recordings of key conversations of the

co-conspirators. It established a wide-ranging con-

spiracy designed to impede a grand jury investigation

into the break-in at the Democratic National Committee

(DNC) headquarters in the Watergate Office Building

in Washington, D.C., and into other related matters.

A. The Gemstone Plan

In the early morning hours of June 17, 1972, roughly

four and a half months before the presidential election,

police discovered five men inside the DNC offices carrying

electronic equipment, cameras, and large sums of cash.

These were no ordinary burglars. They were operating

as part of a larger CRP intelligence gathering plan code-

named Gemstone, and they had been in the DNC offices

once before, in late May. Their mission this time was to

fix a defective bugging device placed during the prior en-

try on the telephone of the DNC chairman; these orders

had come after high officials at CRP expressed dissatis-

faction with the information theretofore produced by the

expensive Gemstone.“ Tr. 2649, 4143-4147, 4519-4521.

*Since none of the three appellants challenges the suffi-

ciency of the evidence to sustain the jury verdict, we sum-

marize here only the major events of the conspiracy. More-

over, 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, 166 U.S.App.D.C. 140, 142, 509

F.2d 473, 475 (1974). See, e.g., Glasser v. United States, 315

U.S. 60, 80 (1942) ; United States v. DeLoach, U.S.App.

D.C. : - & n.2, 530 F.2d 990, 991-992 & n.2

(1975).

*TLe 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

~ —_

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 gather-

ing political intelligence and for countering demonstra-

tions. Tr. 2625-2628, 4507. That expectation was abun-

dantly fulfilled. Collaborating with E. Howard Hunt, Jr.,

a former CIA agent whom Liddy knew well from pre-

vious ventures undertaken at White House behest, Liddy

went to work on his assignment. In two meetings held

during January and February 1972 he presented his

initial Gemstone plan and budget to Mitchell, at that

time Attorney General but even then the functional head

of the Nixon re-election effort. These meetings were at-

tended by Jeb Stuart Magruder, Deputy Director of CRP

and later an important Government witness, and John

W. Dean, III, counsel to the President and eventually

the Government’s prime witness at trial." At these first

meetings Liddy failed to win approval, Mitchell indicat-

ing that the original million-dollar budget had to be

scaled down.“ Tr. 2628-2634, 4507-4513. By March 30,

however, Liddy had pared his budget to $250,000, and

Mitchell had resigned his duties as Attorney General to

become head of CRP in title as well as function. On

that date, in Key Biscayne, Florida, Magruder obtained

Mitchell’s approval for Gemstene in a meeting attended

McCord and Liddy were convicted on pleas of guilty. See

United States v. Liddy, 166 U.S.App.D.C. 95, 509 F.2d 428

(1974).

Tr. 7662-7664. Hunt still maintained an office in the

Executive Office Building next door te 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 demonstra-

tion leaders and to plant call girls with Democratic officials.

Tr. 4117-4120.

only by Mitchell, Magruder, and Fred LaRue, a close

personal friend to Mitchell then serving as a top cam-

paign aide.“ Tr. 3276-3277, 4514-4517, 4638-4639.

Magruder, who had once served on Haldeman’s staff,

was keeping the White House informed of campaign

developments, including Gemstone plans and operations,

by regularly transmitting documents and information on

to Strachan, Haldeman’s assistant. Tr. 4511-4513, 4518,

6612-6613. Haldeman himself had learned directly about

an early version of the Liddy plan when Dean reported

to him shortly after the February meeting. Tr. 2635-

2636.

B. The Early Stages of the Conspiracy

The five burglars arrested inside the DNC gave aliases

to the D.C. police, but within hours of the break-in

Liddy, who had been monitoring the operation from a

safe vantage point in a nearby building, reported the

capture to CRP’s highest officials, then in California.

He told them that one of the captured burglars was

James McCord, on CRP’s payroll as chief of security.

In an apparent effort to avoid the apperance of any link

between CRP and the burglars, Mitchell, Mardian, LaRue,

and Magruder met and decided to contact the new Attor-

ney 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.

** LaRue, like Dean and Magruder, became an important

Government witness. He too entered a plea of guilty to con-

spiracy and was awaiting sentencing at the time of this

trial. Tr. 6733-6734, 6743-6746.

——

Aware that McCord’s true identity would come to light.

Mardian, Magruder, and LaRue the next day worked on

a press release that would deny any CRP tie to the

break-in. Tr. 4537-4540, 6565-6569. It suggested instead

that McCord might have been working for clients of his

private security firm. Haldeman, contacted by long-

distance telephone, approved the statement and urged

that the release issue as soon as possible, even though

Magruder had already informed him that the break-in

was “Liddy’s operation.” Tr. 4542-4544. The release

appeared on June 18 under Mitchell’s name and with

his approval. J.A. 912.

Meanwhile, in Washington, White House and CRP

files were being cleansed of sensitive materials relating

to Gemstone. Strachan performed this function at the

White House, under orders from Haldeman to remove

anything embarrassing. Among the items destroyed were

DNC wiretap reports and a memorandum from Halde-

man to Magruder urging that the intelligence operation

shift from Senator Muskie to Senator McGovern, the

emerging Democratic front-runner. Tr. 2651-2653, 4547-

4548. Magruder immediately ordered removal of all Gem-

stone 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, Magruder asked

Mitchell what to do with the papers. Mitchell suggested

that he “have a fire,” and he did—destroying the Gem-

stone documents in his home fireplace. Tr. 4540-4550,

4823, 6570-6573.

Dean met with Liddy on June 19 and received a full

briefing on the background of the break-in. He then

** 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.

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 assur-

ance regarding Hunt; Ehrlichman consequently issued,

then retracted, an order that Hunt leave the country. Tr.

2657-2660, 4192-4193. He also directed that Hunt’s safe,

in his office in the Executive Office Building, be opened.

Tr. 2660-2661. Dean retrieved the materials from the

safe (which included some electronic equipment related

to Watergate along with documents related to other

questionable activities) , whgreupon Ehrlichman suggested

to Dean that he shred some and “deep six” the rest. Dean

refused, fearing that too many people—White House em-

ployees and Secret Service agents—knew he had removed

materials from the safe. Tr. 2679-2687. Ultimately the

items were turned over to the FBI, although the most

sensitive went directly to L. Patrick Gray, the Acting

Director, with directions from Dean and Ehrlichman that

they should never see the light of day. Gray complied.

Tr. 6212-6217.

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.“ Tr. 2696-2708,

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 con-

tributions from former Democratic Party supporters. Tr.

2696-2710, 6170-6175. One of the intermediaries was a Mexi-

can citizen. The Bureau was ready to interview these indi-

viduals. 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

ert

6605-6608. This presented added problems, as the links to

CRP and the White House became more apparent. The

conspirators decided to cover higher involvement by plac-

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 Presi-

dent 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 con-

spirators were carefully monitoring the FBI investigation.

Beginning on June 21, at Ehrlichman’s direction, Dean estab-

lished 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 ac-

curate,” 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.

ing all blame on Liddy, who had pledged silence. They

would maintain that Liddy was off on a frolic of his own,

betraying his position of trust within CRP. Tr. 2762-

2763. It still was necessary to explain why this man,

general counsel to the Committee, had been supplied with

such large sums of money (it proved later to be $199,-

000) capable of diversion to private frolics. Tr. 2759-

2773, 4552-4562, 6652-6660.

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 par-

ticipated earlier in several “seamy things” for the White

House, as he once described them. Tr. 3088. For ex-

ample, as members of the White House Special Investi-

gation Unit,“ and with the approval of Ehrlichman, who

was head of the Unit, they had broken into the office

of Daniel Ellsberg’s psychiatrist, ransacking the doctor’s

records.“ Tr. 7654-7656, 7664-7675. Significantly unlike

Liddy, however, Hunt had never pledged to keep his

knowledge of these things to himself. Assuring his

silence would be extremely costly; he began to demand

large cash payments on behalf of himself and the five

burglars.

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

This Unit was nicknamed the “Plumbers” since its mission

was to stop leaks of classified information. Tr. 7656.

See United States v. Ehrlichman, ——_ U.S.App.D.C. .

F.2d (No. 74-1882, decided May 17, 1976); United

States v. Barker, —— U.S.App.D.C. . F.2d

(No. 74-1883, decided May 17, 1976); United States v. Liddy,

—— U.S. App. D.C. . F.2d —— (No. 74-1885, decided

May 17, 1976). Ellsberg, at one time a Defense Department

official, had been responsible for transmitting the classified

Pentagon Papers to the New York Times.

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 Republican 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 de-

livered to Liddy for protection of “surrogate speakers“ -

as they traveled around the country in behalf of the

Nixon campaign. Only the remainder was meant for

convention security. This story met with approval. Tr.

2769-2773, 4552-4562, 5254-5255, 6652-6660. It seemed

sufficiently convincing, particularly when Magruder in-

dicated that, at Magruder’s urging, the CRP official in

charge of the surrogate program would corroborate the

story with perjured testimony of his own. Tr. 2769-

2770, 4562-4563, 4570, 4697.

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. Ma-

gruder 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

These were high Government officials who bore the major

burden of campaign speaking duties, in place of Mr. Nixon.

Tr. 2770, 4561.

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 cancelled, and the second re-

a solely to the new election law. Tr. 2824-2829, 4612-

16.

Mitchell and Ehrlichman, meantime, were being care-

ful 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 in-

telligence 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 say, however, that certain

“commitments” had been made to provide them with

bail, legal fees, and living expenses. LaRue assured him

that all commitments would be met. Tr. 6601-6603. Later

LaRue and Mardian met with Mitchell, Dean, and Ma-

gruder to tell them of Liddy’s revelations and to decide

how to raise the funds. Mardian Suggested that the

CIA might be a source (the burglars had prior CIA

connections), and Dean was dispatched, after checking

with Ehrlichman, to bring the CIA in. Tr. 2728-2735,

6610. He was unsuccesful. At Ehrlichman’s insistent

urging he tried again, but again was turned down. Tr.

2735-2737, 6132-6142.

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 Fi-

nance 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.” ** Tr. 6328-6332.

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 re-

sponsible 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 indict-

ments against the five burglars, plus Hunt and Liddy.

No one else was implicated. Tr. 4221-4222. The initial

policy of “containment,” as Dean was later to call it,

had proven successful. Tr. 2855-2860, 3100.

Tr. 6331.

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. 35 B,

Tape Tr. 642-658. Dean made a copy of the tape and

took it to Camp David, Maryland, the presidential re-

treat, 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 im-

press 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 van-

ished. It ultimately became necessary to transfer the

entire fund to LaRue (all with Haldeman’s approval),

and by February he had dispensed $167,000. Tr. 3033-

3042, 6716-6724, Govt. Ex. 15, Tape Tr. 244-246.

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

— ate een — he

—ͤ— ee Re ek —

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” ,

Mitchell urged that the same veiled assurances of clem-

ency be extended to him. Ehrlichman agreed, and as-

surances were delivered to McCord—to no avail, it later

developed. Tr. 2992-3001, 6518-6520.

E. The Cover-up Unravels

The greatest apparent threat to the conspirators’ plans

lay in the impending hearings of the Senate Select Com-

mittee 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

2° Tr. 2995.

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.” ** Nixon returned to the Hunt demand several

times during the ensuing conversation, and he continued

to mention it after Haldeman joined the discussion. Each

21 Govt. Ex. 12, Tape Tr. 131. This conversation figured in

Haldeman’s conviction of perjury under Count 8 of the in-

dictment. Haldeman testified before the Senate Select Com-

mittee that he had listened to a tape of the Nixon-Dean con-

versation, 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 im-

possible 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: Lou can’t do it till after the 74 elec-

tions, 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.

——— — — —

—

time he stressed, in the presence of Haldeman and Dean,

that Hunt’s immediate demands should be “handled” in

order to “buy time.” Neither Dean nor Haldeman de-

murred. Tr. 3094-3102, Govt. Ex. 12, Tape Tr. 103, 131,

135-137, 155, 159, 164-167, 189, 196, 205-206.

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

ut 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 gen-

eral and would indicate that no one from the White House

was involved. They might deliver it to the Senate Com-

mittee, 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.” Tr. 3213-3221, Govt. Ex. 16

Tape Tr. 273-287.

* Govt. Ex. 16, Tape Tr. 277.

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 pub-

lic at the sentencing hearing that day. Tr. 3253-3254,

3259-3262. Shortly thereafter Magruder, Dean, and La-

Rue began to talk to the prosecutors. Tr. 3277-3280,

4639-4643, 6732-6733.

Throughout the month of April 1973 Haldeman, Ehr-

lichman, and Nixon met frequently at the White House

trying to decide how to respond to the new develop-

ments.* They were faced with two primary problems:

how to cope with Dean, who plainly knew a great deal,

and how to explain the hush money payments—which,

they recognized, were now bound to be revealed to the

prosecutors and the public. As to the first, after much

discussion Nixon asked Ehrlichman to try to bring Dean

back on board through veiled assurances of clemency.

Govt. Ex. 18, 22, Tape Tr. 389-393, 403-407, 469-476.

Dean refused to speak with Ehrlichman, however, and his

refusal rekindled the remaining conspirators’ interest in a

Scenario“ laying the blame for all illegality on Dean.

Tr. 3306-3307, Govt. Ex. 24, Tape Tr. 500-504. Halde-

man, after spending a few hours reviewing the possibil-

ities, reported that this scenario “works out pretty

well.” * It would key on Dean’s failure to present the

President with the Dean report in late March. Only then,

the scenario went, were the President’s suspicions fully

aroused, and only then did he discover the scope of Dean’s

involvement. Govt. Ex. 26, Tape Tr. 557-567.

** 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.

—— — nnn

LLL —-— — Pate sal Witham tee

This scenario also dealt tentatively with the second

problem—explaining the hush money. They would state

that the money was delivered for humanitarian pur-

poses *—legal fees and family support—and that their

sole motivation was to discourage the defendants from

talking to the press; they did not seek to keep them from

being candid with the prosecutors. But both Haldeman

and Ehrlichman wanted to consult their lawyers before

relying too heavily on that version of the story. Govt.

Ex. 27, 28, Tape Tr. 570, 573-574.

When Haldeman was called before the Senate Select

Committee in late July and early August 1973, he car-

ried 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 dis-

cussed 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.” *

And he claimed that there had been no discussion of

Magruder’s perjury at the March 21 meeting. Tr. 7483-

7489, 7518-7519, Govt. Ex. 100. These statements formed

the basis for Counts 7, 8, and 9 of the indictment charg-

ing Haldeman with perjury. 18 U.S.C. § 1621 (1970).

He was convicted on all three counts.

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 gen-

** 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.

erally 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, ad-

vanced the cover-up 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 con-

fession 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 de-

nied that there was any mention of destroying documents

at the meeting he held that evening with Magruder, Mar-

dian, 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 cov-

erage 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 un-

related to the Watergate break-in. Appellants contend

that this pretrial publicity was so pervasive and so harra-

ful 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. Alterna-

tively, they contend that the voir dire of veniremen *

conducted by the District Court was insufficiently prob-

ing to assure empaneling of an impartial jury.”

A. The Motions for Continuance or Change of Venue

It is fundamental that “the right to jury trial guaran-

tees to the criminally accused a fair trial by a panel of

impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S.

717, 722 (1961). To be “indifferent” a juror need not be

ignorant:

It is not required, however, that the jurors be to-

tally ignorant of the facts and issues involved. In

these days of swift, widespread and diverse methods

of communication, an important cage 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 opin-

ion as to the merits of the case. This is particularly

true in criminal cases. To hold that the mere exist-

enec 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 (emphasis added). Accord, Murphy v.

Florida, 421 U.S. 794, 799-800 (1975).

* 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.

fairness that might otherwise have resulted from the pretrial

publicity.

Irvin establishes “a common-sense standard” of juror

qualification. United States v. Caldwell, —— U.S. App.

D.C. . , F. 2d „ (No. 72-1513,

decided Dec. 31, 1974) slip op. at 22, cert. denied, 423

U.S. 1087 (1976). In keeping with that approach, a

defendant who claims he was denied a fair trial be-

cause the jury was not sufficiently “indifferent” gen-

erally must sustain that claim “‘not as a matter of

speculation but as a demonstrable reality.“ United

States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956),

quoting Adams v. United States ex rel. McCann, 317

U.S. 269, 281 (1942). This demonstration can be made

only by reference to the voir dire. In “extreme circum-

stances,” however, prejudice to the defendant’s rights

may be presumed. Calley v. Callaway, 519 F.2d 184, 204

(5th Cir. 1975), (en banc) (dictum), cert. denied.

US. ——, 44 U.S. L. WEEK 3564 (April 5, 1976).

Appellants urge that this exception applies to their case

and that the District Court committed reversible error

by denying their pre-voir dire motions™ for a continu-

ance or a change of venue.

20 See also, e.g., United States v. Muncy, 526 F.2d 1261,

1263 (5th Cir. 1976); United States v. Caldwell, —— U.S.

App. D.C. „ . F. 2d , (No. 72-1513,

decided Dec. 31, 1974), slip op. at 17, cert. denied, 423 U.S.

1087 (1976).

*° See also, e. g., United States v. Delay, 500 F.2d 1360, 1365

(8th Cir. 1974) (dictum), cert. denied, 415 U.S. 978 (1974) ;

Hale v. United States, 435 F.2d 737, 746 (5th Cir. 1970)

(dictum), cert. denied, 402 U.S. 976 (1971). In all of these

cases the reviewing courts looked to the voir dire as part of

their inquiry whether “the totality of the circumstances

raise [d] the probability of prejudice.” United States v.

McNally, 485 F.2d 399, 402 (8 Cir. 1973) ; see note 56 infra.

* 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 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

U.S. 723 (1963).** The defendant in Rideau was filmed

419 U.S. 1310 (1974) (Burger, Circuit Justice); Haldeman

v. Sirica, No. 74-1829 (Aug. 22, 1974) (en banc) ; Mitchell v.

Sirica, No. 74-1878 (Sept. 20, 1974) (en banc). All appellants

supported the relief sought in these petitions, but co-defendant

Parkinson opposed continuing the trial. See Response to Peti-

tions for a Writ of Prohibition and Writ of Mandamus in No.

74-1826.

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, 384 U.S. 333 (1966), the Court empha-

sized the trial court’s failure to take measures to insulate the

jury from massive publicity during the trial and the lack of

that “ ‘judicial serenity and calm to which [Sheppard] was

entitled.’ Id. at 355; see id. at 342-357. See also Murphy v.

Florida, 421 U.S. 794, 799 (1975). In Estes v. Texas, 381 U.S.

532 (1965), the Court held that the defendant had been de-

prived of his due process rights “by the televising and broad-

casting of his trial.” Jd. at 535. The Court had excluded a

question concerning pretrial publicity from its grant of cer-

tiorari. See id. at 609-610 (Stewart, J., dissenting). Similarly,

Turner v. Louisiana, 379 U.S. 466 (1965), and Marshall v.

United States, 360 U.S. 310 (1959), involved events occurring

during the trial which were found to have violated the de-

fendants’ rights. See also United States ex rel. Doggett v.

Yeager, 472 F.2d 229 (3d Cir. 1973). Cases involving pre-

ventable intrusions on the trial process present greater justi-

fication for presuming prejudice than does a case such as this,

in which there is no complaint that the District Court failed to

take all appropriate steps to assure the integrity and dignity

of the trial. See text accompanying notes 39-42 infra.

Irvin v Dowd, 366 U.S. 717 (1961), was a pretrial pub-

licity case. There, however, the Court did not simply review

the pretrial publicity and conclude that prejudice resulted, as

appellants would have us do. Rather, the Court “independently

evaluate [d] the voir dire testimony of the impaneled jurors,”

transcript, that denial of Rideau’s motion for a change

of venue constituted a violation of his due process rights:

For anyone who has ever watched television the con-

clusion cannot be avoided that this spectacle [the

munity so pervasively exposed to —1 ‘oun

could be but a hollow formality.

Id. at 726 (emphasis in original).

unemotional factual accounts“ of events and of the

id. at 723, and determined that the “ ‘pa

and ttern of d

bitter Prejudice shown to be present throughout oo

— had invaded the jury box. Id. at 727. See also United

tates ex rel. Bloeth v. Denno, 313 F.2d 364 (2d Cir.) (en

Mees

progress of official and unofficial investigations.“ In

short, unlike the situation faced by the Court in Rideau,

we find in the publicity here no reason for concluding

that the population of Washington, D. C. was so aroused

against appellants and so unlikely to be able objectively

to judge their guilt or innocence on the basis of the evi-

dence presented at trial that their due process rights

were violated by the District Court’s refusal to grant a

lengthy continuance or a change of venue prior to at-

tempting selection of a jury.“

Calley v. Callaway, 519 F.2d 184, 206 (5th Cir. 1975) (en

banc), cert. denied, —— U.S. ——, 44 U.S. L. WEEK 3564

(April 5, 1976) ; United States v. McNally, supra note 30, 485

F. ad at 401.

Without attempting to deny that the pretrial publicity

in this case was extraordinarily extensive, we note that appel-

lants’ submissions overstate the amount of publicity by in-

cluding, apparently, every story concerning the many diffi-

culties 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 con-

spiracy related to information properly brought out at trial.

Cf. Stroble v. California, 343 U.S. 181, 195 (1952); United

States v. Persico, 425 F.2d 1375, 1880 (2d Cir.), cert. denied,

400 U.S. 869 (1970). Moreover, all the pretrial publicity was

not hostile to appellants. All the veniremen were aware of

the then three-week-old Nixon pardon. Indeed, four of the

jurors stated on voir dire that it was unfair to prosecute

appellants in view of the pardon. See note 48 infra.

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

23 29

The. federal courts can, of course, establish more rigor.

ous standards for their own governance than those mini

mum guarantees of fairness imposed on the state courts

by the Constitution. See, e.g., Ristaino v. Ross, 424 U.S.

589, 597 & nn.9-10 (1976) ; Murphy v. Florida, supra,

tion of an appellate court’s supervisory power to require

a continuance or a change of venue, although failure to

do so did not constitute a denial of due process, would

therefore introduce additional unguided discretionary

line-drawing and consequent uncertainty into the process

421 U.S. at 797-798; id. at 804 (Burger, C.J., concur-

ring) ; cf. United States v. Williams, 523 F.2d 1203, 1209

= (5th ** 1975). We believe, however, that it is in-

ppropria attempt to formulate a supervi

standard for concluding that a fair — pro rage

selected. Except in the most extreme cases, like Rideau,

such a Pre· voir dire conelusion must depend solely on the

subjective reaction of the judge who reaches it.“ Invoca-

pearances before the Senate committee, and no one h

gested that they did not know what was going on at the time.

Even in Rideau Justices Clark and Harlan dissented on

the ground that there was no showing tha j

affected by the publicity. *

of litigating controversial cases.“ Moreover, this uncer-

76-77. Haldeman, on the other hand, maintains that the pub-

licity 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] per-

sonally 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 coun-

try 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 ac-

curate; before the voir dire a judge could only have 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 sim-

ply a fact of life that matters which interest them may be

less fascinating to the public generally.

** 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, —— U.S.App.D.C. at .

F.2d at , slip op. at 13, and far removed from the basic

question of the fairness of a trial. Similarly, a rule that

avoided uncertainty by requiring the trial court to grant a

motion for continuance or change of venue whenever a mini-

mal showing of the existence of pretrial publicity had been

made would be both contrary to long accepted practice, see,

e.g., FED. R. CRIM. P. 21(a), and only remotely related

to the underlying concern with obtaining an impartial jury.

tainty would not guarantee a commensurate increase in

the fairness of federal criminal trials. When the trial

court has taken all appropriate measures to minimize

pretrial publicity, as was the case here, a supervisory

fair trial standard, however stated, could not stimulate

the court to additional vigilance in protecting the defend-

ant’s right to be tried on the evidence presented in

court.“ And if an impartial jury actually cannot be se-

s Simultaneously with filing of the indictment, the District

Court enjoined the “staff of the Watergate Special Prosecutor,

defendants, their attorneys and witnesses from making extra-

judicial statements concerning any aspects of [the] case that

are likely to interfere with the rights of the accused or the

public to a fair trial 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 re-

sponse 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, 199 F.2d

107 (Ist Cir. 1952), appears to be such a case. See id. at 115

(different result possible when legislative action has greater

utility); Silverthorne v. United States, 400 F.2d 627, 633 (9th

Cir. 1968). The utility of the legislative activities complained

of by appellants is unquestionable. The hearings of the Sen-

ate Select Committee on Presidential Campaign Activities

(Ervin Committee) took place before appellants were in-

dicted, see United States v. Ehrlichman, supra note 17, ——

U.S.App.D.C. at n.8, F.2d at n.8, slip op. at

9 n.8, and well over a year before they were tried, at a time

when it was far from clear that the Executive Branch would

adequately deal with the burgeoning scandal. Contrast De-

laney v. United States, supra, 199 F.2d at 114. The impeach-

ment hearings of the House Committee on the Judiciary did

take place after the indictments in this case and within a

few months of the beginning of the trial. However, those

—— —

lected, that fact should become evident at the voir dire.

The defendant will then be entitied to any actions neces-

sary to assure that he receives a fair trial. In sum, we

believe that “each case must turn on its special facts.”

Marshall v. United States, 360 U.S. 310, 312 (1959).“

hearings, which were conducted pursuant to a power con-

ferred by the Constitution only on the House of Representa-

tives, did not involve public taking of evidence. Moreover,

although appellants’ actions were prominently considered by

the Committee, the focus of the public debates, and of public

attention, was on the role of the President. In view of these

factors and of decisions by the Supreme Court subsequent to

Delaney, see, e.g., Beck v. Washington, supra note 33, we do

not believe the same result as in Delaney is called for here.

Judge MacKinnon’s dissent on this issue relies most heav-

ily 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 am-

phetamine sulfate tablets without a prescription from a li-

censed physician, in violation of 21 U.S.C. 8 353 (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 pre-

scriptions for dangerous drugs.” 360 U.S. at 311. One of

the accounts indicated that the information contained therein

came from court attaches. In reversing the conviction under

its supervisory power the Supreme Court stated, “We have

here the exposure of jurors [during the trial] to information

of a character which the trial judge ruled was so prejudicial

it could not be directly offered as evidence.” Id. at 312. The

Court further stated that on the issue of prejudice resulting

from the reading by jurors of news articles during the trial

“each case must turn on its special facts.” Id. We believe

For these reasons we hold that the District Court was

correct to follow this circuit’s well established —

by refusing appellants’ pre-voir dire requests for a con-

tinuance or a change of venue.“ See, e. g., United States

that the Marshall case was obviously rightly decided. We also

believe that its special facts are distinctly different from our

case.

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, 367 F.2d 698, 711 (7th Cir. 1966),

vacated and remanded on other grounds, 387 U.S. 231 (1967);

United States v. Marcello, 280 F.Supp. 510, 519 (E.D. La.

1968), aff'd, 423 F.2d 993 (5th Cir.), cert. denied, 398 U.S.

959 (1970).

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 mo-

tions 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 resi-

dents of the District of Columbia. Cf. United States v. Me-

Nally, supra note 30, 485 F.2d at 403 (questioning value of

change of venue since airline hijacking a national crime).

In reaching the conclusion that a change of venue was re-

quired, 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, 325 F.2d 616 (1963), cert. denied, 384 U.S. 994

(1966). Similarly, the trial court must also be accorded dis-

cretion in assessing the weight to be given expert evidence

that is submitted—as was this evidence—in support of a pre-

trial motion. Indeed, such discretion is peculiarly necessary

where the expert evidence consists of the results of a public

v. Wilkerson, —— U.S.App.D.C. . , F.2d

„ (No. 74-1613, decided April 27, 1976), (per

curiam) slip op. at 3; United States v. Caldwell, supra,

—— U.S.App.D.C. at ‘ F.2d at ——, slip op.

at 13; Jones v. Gaseh, 131 U.S.App.D.C. 254, 261, 404

F.2d 1231, 1238 (1967), cert. denied, 390 U.S. 1029

(1968). We therefore turn to an examination of the

voir dire itself.

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 con-

duct 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

opinion poll—data that is open to a variety of errors. Cf. Zeisel,

The Uniqueness of Survey Evidence, 45 CORNELL L. Q. 322,

339-344 (1960). It is our judgment that in determining wheth-

er a fair and impartial jury could be empanelled the trial court

did not err in relying less heavily on a poll taken in private

by private pollsters and paid for by one side than on a re-

corded, comprehensive voir dire examination conducted by

the judge in the presence of all parties and their counsel pur-

suant to procedures, practices and principles developed by the

commor law since the reign of Henry II.

The second major prop for the dissent’s argument that a

change of venue should have been granted is, oddly, the Dis-

trict of Columbia’s voting record in the past two presidential

elections. Not without reason, the relevance of this informa-

tion 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,

183 F.2d 201 (2d Cir. 1950), aff’d, 341 U.S. 494 (1951). It

need only be said that the reader will search Dennis in vain

for any intimation that a community’s voting patterns are

at all pertinent to venue.

—

this discretion is “subject to the essential demands

of fairness.” * But absent abuse of his broad

discretion, and a showing that the rights of the ac-

cused 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,

475 F.2d 376, 380 (1973) (citations omitted). See, e. g.,

United States v. Caldwell, supra, —— U.S.App.D.C. at

„ F.2d at ——, slip op. at 19; United States

v. Liddy, 166 U.S.App.D.C. 95, 101, 509 F.2d 428, 434

(1974) (en banc); United States v. Nix, 465 F.2d 90,

96 (5th Cir.), cert. denied, 409 U.S. 1013 (1972). Our

review, while based on a thorough study of the record,

is limited accordingly.

The voir dire in this case lasted eight days and is re-

corded 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 ques-

tions concerning their relationships with any of the in-

dividuals or organizations involved in the case. Eighty-

five veniremen remained following those questions. After

questioning two individually,“ the trial judge had the

After the first two veniremen had been questioned indi-

vidually, 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 Ehrlich-

man 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 be-

cause 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 chal-

rest of the venire divided into groups of 12 to 18 for

further questioning. The inquiries directed to these groups

covered such areas as previous jury service, factors af-

fecting credibility of witnesses, and other subjects un-

related to pretrial publicity. Finally, the trial court in-

dividually questioned 77 veniremen on matters such as

their employment, attitudes toward the defendants, and

exposure to pretrial publicity.“ This individual ques-

tioning, which took place out of the hearing of all other

members of the venire, accounts for almost three quarters

of the voir dire.

Since the answers to the court’s questions were met

with appropriate follow-up questions, the individual voir

dire interrogation was not uniform.“ Nevertheless, the

lenge was based on the juror’s negative response to the fol-

lowing 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.

9 This description of the steps in the process is not chrono-

logical. 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

stioning did follow a basic pattern. After some per-

— — relating to employment hist ory = -

litical activity, the court focused on the gs teenage

posure to pretrial publicity and possible biz ses. —

the publicity was mentioned the venireman —4 as

if he believed that any defendant was probably guil 1

He was then asked if he had heard of the case and, A,

so, whether anything he had heard or read 3 —

case stood out in his mind. The next questions —

whether the venireman had seen the defendants — —

lawyers in the newspapers or on television and v : nd

he remembered anything in particular about them. Su f

sequently the court determined which newspapers *

magazines the venireman read and with what — -

regularity; which television news programs he wa — 5

whether he had followed the legislative inquiries — .

to Watergate or read any of the books or other —

pieces concerning Watergate, ineluding the presiden a

tape transcripts; whether he had followed 1

closely or casually; and whether (and how recently) he

had discussed the case.

etermining the venireman’s degree of interest

in 9 — to ‘the case, the court inquired whether

he had formed or expressed an opinion of the guilt or

innocence of any defendant. Jn addition, the judge de-

termined whether the venireman knew of Ehrlichman’s

trial and conviction in the “plumbers” case,“ whether he

ioni i ‘ i hrlichman br. at

tioning belies appellants contention, E .

74, 79-80, that the voir dire involved only “perfunctory” repe-

tition of a few uninformative questions.

«7 United States v. Ehrlichman, D. D.C., Crim. No. Mayo

affirmed, U.S.App.D.C. 5 F. 2d 5 . 0. 4

1882, decided May 17, 1976). Since proof of E — 1

conviction in the “plumbers” case was properly admi —

trial, see Part VII infra, juror knowledge of that yy

its outcome is not objectionable under the doctrine 0 ar-

shall v. United States, supra note 32. Ehrlichman's suggested

knew of the pardon of former President N ixon, whether

he thought it unfair to prosecute appellants in light of

the pardon, whether the pardon caused the venireman

te believe appellants were guilty or innocent, and whether

the fact that Nixon had been named an unindicted co-

conspirator affected the venireman’s view of appellants.

If the venireman had formed an opinion, the judge at-

tempted to determine whether that opinion was firmly

held or could be set aside. In closing he was asked

whether he could return a fair and impartial verdict

based solely on the evidence presented at trial and the

court’s instructions on the law. After the basic ques-

tioning was completed, the venireman was excused while

the court considered counsel’s objections and suggestions

for additional inquiries. This step often resulted in re-

call of the venireman for more questioning.

Appellants claim that this interrogation was inade-

quate. Their principal complaint “ is that the voir dire,

voir dire questions would have informed all veniremen who

were ignorant of the trial or its outcome of the fact that

Ehrlichman had been convicted. See Defendant John D. Ehr-

lichman’s Proposed Voir Dire to the J ury, J.A. 435, 444 (Ques-

tions 140-142); cf. Murphy v. Florida, supra note 32, 421

U.S. at 800 n.3.

Although appellants focus on the issue of “content” ques-

tions, 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 substantia! discretion in determining the conduct of the

void dire, see pp. 33-34 supra, and in ruling on challenges. See,

e. g., Reynolds v. United States, 98 U.S. (8 Otto) 145, 156-157

(1878), quoted in Irvin v. Dowd, supra note 32, 366 U.S. at

723; United States v. Robbins, 500 F.2d 650, 653 (5th Cir.

1974); United States v. Ploof, 464 F.2d 116, 118 (2d Cir.

1972).

The dissent, which largely echoes appellants’ assorted com-

plaints about the voir dire, also fails to point to a single in-

i id not include

ich they characterize as perfunctory, did n

Sama " — A “content” question, as appel-

, , a . In its

i hich the trial court abused its discretion. |

nr that the voir dire = — — —

improper, however, the dissen care cts,

ae the — than 2,000 pages of the voir dire transcript,

the isolated passages that are most susceptible to the inter-

pretation that the trial judge and the jurors were rr

to find the defendants guilty. Consistently ignored, i 4 —

be pointed out, are the numerous passages that sugges

predisposition to find the defendants ———f—ů—

which often appear immediately before or after those quo

by the dissent.

i i ir dire

instance, the dissent specifically refers to the voir

of 1 — Ruth Gould, Marjorie Milbourn, and Jane —

demonstrating that the trial judge erred in not gee — —

fully the jurors’ general opinions on the subject — —

the case. Omitted from the dissen 0 t, however, is — 1 re — —

to the opinions these jurors did express. In — . a

these three jurors, in response to a question from Ar

court, said she felt that, in view of the pardon — A.

former President Nixon, it would be unfair to oO . —4

of the defendants. Tr. 843 (Gould voir dire) ; Tr. 11 —

bourn voir dire); Tr. 1429-1430 (Ryon voir — — —

Tr. 631 (voir dire of Roy G. Carter, a juror — — —

sponded that, in view of the pardon, it would un

prosecute any of these defendants).

* issent finds the trial court’s voir dire inadequate in

et ky inquiry to what “in particular’ ＋ kod -

a venireman’s mind as the result of the pretri 14 i -«

This self-imposed restriction, it is argued, led to t ( — —

not inquiring as to the general opinions and impressions

the veniremen have formed from the publicity.

i igui i i dissent

t without ambiguity, this portion of the

a 4 little more than a variation on appellants com.

plaint that the trial court erred in refusing to ask —,

questions. For the reasons given infra, we find this refusa

entirely justified.

i i t were

„we specifically note that the questions tha

— pe the voir dire refute any suggestion that

lants’ voir dire proposals show, is simply a request that

the venireman recite everything he remembers about the

topic of the inquiry. Thus appellant Haldeman wished

to ask each member of the venire, “What do you re-

member about this case? What, if anything, do you

remember about any of these defendants?” Voirdire

sie] Questions to Individual Jurors, Requested by De-

fendant Haldeman, J.A. 431. Appellant Ehrlichman sug-

gested similar, although more elaborate, questions.“ Ac-

cording to appellants, these questions were necessary to

the trial court failed to address the fundamental issue of

whether the veniremen were predisposed to find the defend-

ants 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 diiferently. The judge

asked a “loaded question,” according to the dissent, when he

said, “Do you believe at this very moment, and without hav-

ing 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 in-

dictment?” 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 defend-

ants 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 reac-

tions 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 voi

r 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.

provide an objective basis for evaluating a venireman’s

impartiality.”

Following an objection by the Government, the Dis-

trict Court decided not to ask these questions. The posi-

tions 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

„ 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, 472 F.2d 340,

376 (7th Cir. 1972), cert. denied, 410 U.S. 970 (1973) ; Silver-

thorne v. United States, supra note 40, 400 F.2d at 638-639;

AMERICAN BAR ASS’N PROJECT ON MINIMUM STANDARDS FOR

CRIMINAL JUSTICE, STANDARDS RELATING TO FAIR TRIAL AND

FREE PRESS § 3.4 (approved draft 1968). In this case, how-

ever, the court had before it and acted on not only the jurors’

subjective assurances but also objective information relating

to how closely they had followed Watergate and their sources

of information. The trial judge also had ample opportunity

to observe the veniremen’s demeanor and assess their candor

during individual questioning. As defense counsel occasion-

ally admitted during the voir dire, the District Court was

clearly relying on objective as well as subjective indicators

of bias. See Tr. 720 (comment of Mr. Stein). Indeed, Mit-

chell’s brief contains extensive excerpts from the voir dire

of a venireman who was excused for cause despite his assur-

ance that he could render a fair verdict. Mitchell br. at 111-

113. Although Mitchell maintains that this action was taken

because the court deviated from its normal practices and

asked a “content” question, it is apparent from the record

that the venireman was dismissed because of the trial court’s

assessment of his answers to questions which were addressed

to every venireman during individual interrogation. See Tr.

2008-2016.

mean, every citizen in the District of Columbia we

would assume would come in and say, yes, they [had]

heard about it, read about it, and seen it on televi-

sion.

_ 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 ques-

tion 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 impar-

trial 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.“ Cf. AMER-

ICAN BAR ASS’N PROJECT ON MINIMUM STANDARDS FOR

CRIMINAL JUSTICE, STANDARDS RELATING TO FAIR TRIAL

AND FREE PRESS § 3.4 (b) (approved draft 1968) (here-

inafter ABA Standards). Rather, they simply wished to

learn how much the veniremen recalled from their ex-

posure to the publicity, regardless of whether that ex-

posure caused them to form opinions of guilt. Under

Irvin v. Dowd, however, mere familiarity with “the

facts and issues involved” in the case would not have

rendered a venireman unqualified to sit. See page 23

supra. The District Court therefore properly concluded

that the information appellants sought, although un-

doubtedly of interest to them, did not warrant the ex-

traordinarily prolonged voir dire that would have been

necessary to obtain it.“

52 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 unin-

dicted co-conspirator.

53 Appellants suggest that if the voir dire had included con-

tent” questions the belated revelation that one juror (Plunk-

ett) had discussed the case with a secretary in the office of

the Special Prosecutor and that another (Milbourn) had writ-

ten letters to Senator Baker mentioning Watergate as an ex-

ample of the country’s moral problems would have been avoid-

ed. Ehrlichman br. at 74-76; Mitchell br. at 81. (Plunkett was

dismissed from the jury and replaced by an alternate; Mil-

bourn was retained after additional questioning in cha rs.)

We reject the contention that these incidents demonstrage that

the voir dire was not sufficiently thorough. All of the venire-

men were asked about contacts with anyone in the Special

Prosecutor’s 2 Plunkett apparently simply forgot about

the incident. Similarly, all veniremen were asked whether

they had expressed any opinions about the guilt or {nnocence

of the defendants. Juror Milbourn mentioned her letters in

belated response to this question. If anything, her action fol-

lowing a weekend recess indicates that the voir dire success-

We also find unconvincing appellants’ attempts to

identify legal support for their claimed right to ask

“content” questions. Appellants rely principally on Sec-

tion 3.4 of the ABA Standards, supra; Silverthorne v.

United States, 400 F.2d 627 (9th Cir. 1968) ; and United

States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert.

denied, 410 U.S. 970 (1973). The ABA Standards, which

have been approved by this court, United States v. Bryant,

153 U.S.App.D.C. 72, 76-77, 471 F.2d 1040, 1044-1045

(1972), cert. denied, 409 U.S. 1112 (1973), provide in

Section 3.4(a) that “(t]he questioning shall be conducted

for the purpose of determining what the prospective juror

has read and heard about the case and how his exposure

has affected his attitude towards the trial * * *.” (Em-

phasis added.) Contrary to appellants’ suggestion, we

believe this standard, as its language suggests, mandates

an inquiry into the sources and intensity of a venireman’s

exposure to pretrial publicity, not an inquiry into his rec-

ollection of the content of that publicity. This reading is

supported by Section 3.4(b) which provides that “{b]oth

the degree of exposure and the prospective juror’s testi-

mony as to his state of mind are relevant to the deter-

mination of acceptability.” * (Emphasis added.)

fully impressed upon the jurors the seriousness of their under-

taking 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, essen-

tially 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 signifi-

cant information, such as the existence or contents of a con-

fession, or other incriminating matters that may be inad-

missible in evidence, or substantial amounts of inflammatory

material,” should be excused for cause. There was no such

material or information in this case, see pp. 26-27 supra, and

Both of the cases relied on by appellants refer to the

ABA Standards. In Silverthorne the voir dire relating to

pretrial publicity was both minimal“ and addressed to

the veniremen as a group. There was uo private, individ-

ual questioning of each member of the venire. The Ninth

Circuit, citing Section 3.4(a) and (b), held that the ques-

tioning was inadequate because [the trial court made

no effort to ascertain what information the jurors had

accumulated and, consequently, had no way of objectively

assessing the impact caused by this pretrial knowledge

on the juror’s impartiality.” 400 F.2d at 638 (emphasis

in original). In Dellinger the trial ect asked whether

there was any reason the veniremen would be unable to

return a fair verdict, but refused to ask any questions

concerning exposure to the extensive pretrial publicity

surrounding that case. 472 F.2d at 372. The Seventh

Circuit, citing Silverthorne and the ABA Standards, held

chat the voir dire inadequately explored the impact of

the pretrial publicity. See id. at 370-377.

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 insuffi-

cient. 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

appellants were not seeking “content” questions to determine

whether the jurors recalled any specific matters. See note 52

and accompanying text supra.

The voir dire concerning publicity consisted of only four

questions. 400 F.2d at 635 n.10. “The totality of the dialogues

between the jurors selected and the court concerning the pub-

licity issue” is reprinted in less than two full pages of the

appellate court’s decision. See id. at 635-637 n.11.

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.” 472 F.2d at 377. That is what the

District Court did in this case.

As the Supreme Court stated in Nebraska Press Ass’n

v. Stuart, —— US. . „44 U.S. L. WEEK 5149,

5157 (June 30, 1976), [PIretrial publicity, even if per-

vasive and concentrated, cannot be regarded as leading

automatically and in every kind of eriminal ease to an

unfair trial.“ In this case, moreover, it is elear that the

District Judge took particular care during the voir dire

and throughout the proceedings—to ensure that the trial

was a fair one. Of course, “[v]Joir dire ‘is conducted under

the supervision of the court and a great deal must, of

necessity, be left to its sound discretion.’ [Quoting Con-

nors v. United States, 158 U.S. 408 413 (1895); other

citations omitted.] This is so because ‘determination of

impartiality in which demeanor plays such an important

part, is particularly within the province of the trial

judge.’ Rideau v. Louisiana, 373 U.S. 723, 733 (1963)

(Clark, J., dissenting).”. Ristiano v. Ross, supra, 424

U.S. at 594-595. After diligently studying the voluminous

transcript of the voir dire in this case, we are convinced

that the District Court exercised its discretion judi-

ciously and intelligently. Indeed, no one who reads this

transcript can fail to be impressed with the patience,

attention, and acumen with which the judge probed

the opinions of the veniremen so as to remove those who

harbored any prejudice or preconception.

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 capa-

ble of basing its verdict solely on the evidence introduced

at trial.“ Appellants appear to concede this ultimate con-

% 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 possess-

ing a fixed opinion of the defendant’s guilt which could not

be set aside. See 366 U.S. at 724 & n.4, 727. Almost 90% of

the members of the venire who were asked about their opinion

“entertained some opinion as to guilt—ranging in intensity

from mere suspicion to absolute certainty.” Jd. at 727. Two

thirds of the jurors who found Irvin guilty believed him guilty

before the trial began. The Court held that the evidence of

“ ‘deep and bitter prejudice’ shown to be present throughout

the community” and in the jury box warranted rejection of

the jurors’ assurances that they could be impartial. Id.

Appellants claim that 52% of the veniremen questioned in-

dividually 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 an-

other 7% as possessing an “arguable predisposition against

defendants.” Govt. br. at 243. Compare Murphy v. Florida,

supra note 32, 421 U.S. at 803 (20 of 78, 26%, excused because

of opinion of guilt). Our review of the voir dire suggests that

appellants have included in their totals not only potential

jurors who may have believed them guilty but also potential

jurors about whom appellants had a “mere suspicion.” The

Government’s estimate that approximately a third of the

members of the venire were predisposed against appellants is

much more consistent with the voir dire transcript.

This may indeed be [one third] more than would q@eur

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, 421 U.S. at 803.

clusion, for they never suggest that the jury was actually

prejudiced against them or that its verdict rested on

anything other than the overwhelming evidence of their

guilt. On the basis of our own review, we have no doubt

that the jury was impartial.“ Accordingly, we find no

* 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 ex-

pressed 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 de-

cision 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 chal-

lenge 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.

Finally, appellants list Juror Milbourn as prejudiced against

them because of her belief that Watergate did not represent

morally desirable activities. See note 53 supra; Mitchell br.

at 79; Tr. 1182-1183. Milbourn very clearly expressed her

understanding of the distinction between her moral sentiments

and the question of appellants’ legal guilt; as to the latter she

no opinion. See Tr. 1182-1183. Moreover, she was not

challenged for cause, and the dialogue following her question-

ing suggests the defense was eager to have her on the jury

bScause of her belief that appellants should receive the same

treatment as former President Nixon. See Tr. 1196-1202.

ss 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

reversible error associated with the impaneling cf the

jury.

III. EHRLICHMAN’S MOTION FoR SEVERANCE

Appellant Ehrlichman contends that his motion for

Severance under Rule 14, filed May 1, 1974, was im-

properly denied. In his motion he claimed that severance

was required because his co-defendants would assert de-

fenses inconsistent with, and hostile to, his own. As he

puts it, Mitchell and Haldeman asserted that their con-

tacts with then President Nixon were lawful and proper

in every respect, while “[iJn 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 de-

fenses may support a motion for severance, the doctrine

is a limited one. As set forth in Rhone v. United States,

after they are sworn, it also enhances the likelihood of dissi-

pating the impact of pretrial publicity and emphasizes the

elements of the jurors’ oaths.” Nebraska Press Ass’n v.

s 1 US. ’ * 44 U.S. L.

Ehrlichman br. at 92. Ehrlichman refers to his testimony

that when he listened to the tapes it became clear that in vari-

ous 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 dia-

metrically opposite to the representations that he had made

to me with regard to his intents on clemency, about the mat-

ter 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 state-

ment issued, and then, of course, his position was exactly the

— I feel.” Tr. 554, 10241, quoted in Ehrlichman br. at

125 U.S.App.D.C. 47, 48, 365 F.2d 980, 981 (1966), the

governing standard requires the moving defendant to show

that “the defendants present conflicting and irreconcil-

able defenses and there is a danger that the jury will

unjustifiably infer that this conflict alone demonstrates

that both are guilty.” Application of this standard, which

is for the District Court in the first instance, and re-

viewable here only for abuse of discretion, requires, that

the accounts of co-defendants be not merely divergent

from one another but indeed “so contradictory as to

raise an appreciable danger that the jury would convict

solely on the basis of the inconsistency.” To warrant a

severance, in short, the accounts of co-defendants must be

“on a collision course.” United States v. Bolden, 169 U.S.

App.D.C. 60, 69, 514 F.2d 1301, 1310 (1975).

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 mis-

led by former President Nixon does not meet this stand-

ard. The defenses of the co-defendants were simply

not at the requisite level of conflict. The jury could

have accepted or rejected both. “[T]jhe mere pres-

ence 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, 442 F.2d 517, 530 (3d

Cir.), cert. denied, 404 U.S. 958 (1971).“ Here the con-

tention is further diluted by the circumstance that ap-

pellant is not claiming prejudice because other defend-

ants were inculpating him, as in the Valdes’ case Ehr-

% See Allen v. United States, 91 U.S. App. D.C. 197, 202, 202

F.2d 329, 334, cert. denied, 344 U.S. 869 (1952); Dauer v.

United States, 189 F.2d 343 (10th Cir), cert. denied, 342 U.S.

898 (1951).

United States v. Valdés, 262 F.Supp. 474 (D. P. R. 1967).

In that case defendant Vega sought to lay the blame for nar-

lichman relies on, but rather is asserting that he lacks

the knowledge and blame that may be mputable to the

co-defendants. Any inconsistency in defenses stems from

Ehrlichman’s defense strategy to shift the blame onto,

to assign sole culpability to, his co-defendants.

Ehrlichman stresses the difference between his claim

and Haldeman’s concerning their meeting with CIA rep-

resentatives on June 23, 1972. Each contended his pur-

pose 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 investiga-

tion because, in Haldeman’s words, “the FBI is not under

control.“ Haldeman attempted to explain that the prior

conversation was not for the purpose of enlisting the

CIA to stifie the FBI’s Watergate investigation. Whether

successful or not, this did not eut across Ehrlichman’s

defense. Ehrlichman contended thet he had not been

made privy to the conversation in question—an assertion

neither the Government nor Haldeman disputed—and had

no reason to attribute any but a lawful purpose to the

meeting, namely, that he believed Mr. Nixon’s statement

that an investigation into the activities of the persons

behind th. Watergate matter might interfere with the

legitimate activities of the CIA.

More broadly, Ehrlichman is claiming that he was

prejudiced because there was strong evidence implicating

cotics transactions solely on defendant Valdés. The court

found severance appropriate because “Valdés, if compelled

to go to trial together with defendant Vega, would have to

prepare his defense against two adversaries, the United Staites

and co-defendant Vega. They would be unified in their effort

to convict Valdés. We must agree under these condittions, a

joint trial would be the equivalent of a denial of à f

impartial trial.” Jd. at 476. Co

Got Ex. 1A, Tape Tr. 2.

* 51

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 defend-

ant involved in a relatively “inconsequential part of the

trial.” » But here the evidence against Ehrlichman, while

perhaps not as compelling in certain details as with re-

spect to the others, is not only consequential but overall

a very strong showing of involvement in the coverup.

The judge instructed the jury in the clearest terms that

it could consider only a defendant’s own words and acts

in determining whether he joined the conspiracy, Tr.

12365, and that it must consider the guilt or innocence

of each defendant separately and independently, Tr.

12407. And even in a separate trial the Government

would have been entitled to prove the scope of the en-

tire conspiracy, and would not have been restricted to the

limited involvement of the severed defendant.“ Appel-

lant Ehrlichman falls far short of the showing of “clear

abuse of discretion” required for reversal even when

there is a welter of “conflicting stories and veiled ac-

cusations emanating from the defense table

We do not here discern anything like the kind of unfair-

ness necessary to overcome a joint trial of defendants

shown by substantial, independent evidence to be in-

United States v. Leonard, 161 U.S.App.D.C. 36, 47, 494

F.2d 955, 966 (1974) ; United States v. Gambrill, 146 U.S.App.

D.C. 72, 83, 449 F.2d 1148, 1159 (1971); McHale v. United

States, 130 U.S.App.D.C. 163, 164, 398 F.2d 757, 758, cert.

denied, 398 U.S. 985 (1968), quoting United States v. Kelly,

349 F.2d 720, 759 (2d Cir. 1965).

Echrichman’s brief does not cite these cases, but we give

him the benefit of consiaering their doctrine.

„United States v. Mayes, 512 F.2d 637, 645 (6th Cir.),

cert. denied, 422 U.S. 1008 (1975); United States v. Pearson,

508 F.2d 595, 597 (5th Cir.), cert. denied, 423 U.S. 845 (1975).

* United States v. Leonard, supra note 63, 161 U.S. App. D. C.

at 48, 494 F.2d at 967.

volved in the conspiracy for which they have been jointly

indicted.

IV. DISCOVERY BY EHRLICHMAN

Months ahead of trial, Ehrlichman and other defend-

ants 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 congres-

sional 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 evi-

dence 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 op-

portunity 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.“

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,

397 F.Supp. 182 (D. D.C. 1974), but the appendix and at-

tachments are not. Some of the items produced are identified

by the District Court’s findings:

[T]he [Special Prosecutor] provided each defendant with

copies of his own grand jury testimony, prosecution in-

terviews, F.B.I. interviews, and all other statements or

testimony possessed by the prosecution which related

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 has been provided

Ehrlichman, however, continued to press his motion,

which the District Court eventually denied.” He also

procured the issuance of two subpoenas duces tecum,“

which were promptly quashed.“ He asserts in this court

that he has yet to be afforded complete discovery; his

central argument, invoking Brady v. Maryland, 373 U.S.

83 (1960), is that the Special Prosecutor was constitu-

tionally obligated to turn over all favorable data either

in his hands or in those of any other branch of the

Federal Government. In the circumstances shown by the

record, we need not pass on a proposition so broad, nor

are we persuaded that Ehrlichman was deprived of any-

thing to which he was entitled.

Our attention has not been directed to any arguably

helpful information possessed by the Special Prosecutor,”

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 knowl-

edge of, and a tremendous volume of other possibly rele-

vant 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, —— U.S. ——, 44 US.

L. WEEK 5013 (June 24, 1976) ; Ring v. United States, 415 U.S.

449 (1974); Moore v. Illinois, 408 U.S. 786 (1972) ; Giglio v.

United States, 405 U.S. 150 (1972); Giles v. Maryland, 386

U.S. 66 (1967).

The pivotal consideration, as will develop, is that Ehrlich-

man does not indicate how any possibly inaccessible infor-

mation might have been material to his defense. See cases

cited supra note 70.

72 See cases cited supra note 70.

or any investigative unit under his control,” or any other

agency allied with the prosecution, which was not made

available. Nor does Ehrlichman refer us to any particular

item allegedly unproduced other than files generated at

the White House” and testimony taken by a congres-

sional subcommittee in executive session.“ As to these

materials, we find no cause for reversal.“

8 See, e.g., United States v. Bryant, 142 U.S. App. D.C. 132,

140, 439 F.2d 642, 650 (1971).

Compare United States v. Deutsch, 475 F.2d 55 (5th Cir.

1973). There the defendants, charged with offering to pay

a postal employee for credit cards abstracted from the mail,

and with giving the employee money to induce him to act in

violation of his duty, moved for production of the employee’s

personnel file for examination for possibly impeaching mate-

rial. The motion was denied on the ground that the prose-

cutor did not have the file. On appeal, the ruling was held

erroneous. “It was a Post Office employee,” said the court,

“who had been sought to be bribed. The government cannot

compartmentalize the Department of Justice and permit it to

ring a charge affecting a government employee in the Post

Office and use him as its principal witness, but deny access

to the Post Office files. * [T]here is no suggestion in

Brady that different ‘arms’ of the government, particularly

when so closely connected as this one for the purpose of the

case, are severable entities.” Id. at 57.

*® Discussed in text infra at notes 78-104. While Ehrlich-

man’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, par-

ticularly 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.

Ehrlichman’s demand for the White House files fell far

short of legal requirements.“ Criminal Rule 16 (b) at

that time conditioned discovery of matter of that type

“upon a showing of materiality to the preparation of [the

accused’s] defense and that the request is reasonable.“

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 con-

trol 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.

Pus. 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 revi-

sions.

See note 79 supra. We are advertent to provisions of

Fep. R. Crm P. 16 (a) (1) (A) respecting discovery of “writ-

ten 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,

144 U.S.App.D.C. 184, 188 n.8, 445 F.2d 660, 664 n.8, cert.

denied, 404 U.S. 826 (1971); United States v. Bryant, supra

— —— eee

Criminal Rule 17 (e),“ which is not a discovery device,”

confines a subpoena duces tecum to admissible evidence,“

note 73, 142 U.S.App.D.C. at 139 n.14, 439 F.2d at 649 n.14,

and the right extended to an accused’s conversations with

third persons. See United States v. Bryant, supra note 73.

The District Court found, however, that the Special Prosecutor

had “provided each defendant with copies of his own grand

jury testimony, * * * and all other statements or testimony

possessed by the prosecution which related to this case.”

See rote 66 supra. The record reveals that Ehrlichman’s tes-

timony before the Subcommittee on Intelligence of the House

Arined Services Committee was supplied, Tr. 9115, and see

text infra at notes 105-113, and that he had full access to his

White House files for inspection of any “written or recorded

statements” of his contained therein. See note 93 infra. Thus

we have no further concern with Rule 16 (a) ( (A).

* FED. R. CRIM. P. 17 (e), relating to subpoenas for produc-

tion 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 ob-

jects 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. Nizon, 418 U.S. 683, 698-700 (1974).

“Rule 17(c) was not intended to provide an additional means

of discovery. Its chief innovation was to expedite the trial

by providing a time and place before trial for inspection of

the subpoenaed materials.” Bowman Dairy Co. v. United

States, 341 U.S. 214, 220 (1951) (emphasis in original).

** Bowman Dairy Co. v. United States,supra note 82, 341

U.S. at 219-220; United States v. Marchisio, 344 F.2d 653,

669 (2d Cir. 1965).

‘

authorizes the quashing of the subpoena if it is “unrea-

sonable or oppressive,” ** and indulges pretrial inspec-

tion“ of subpoenaed papers only upon a showing

(1) that the documents are evidentiary and rele-

vant; (2) that they are not otherwise procurable

reasonably in advance of trial by exercise of due

diligence; (3) that the party cannot properly pre-

pare for trial without such production and inspec-

tion in advance of trial and that the failure to ob-

tain 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.“

Ehrlichman's discovery motion, aptly described by the

District Court as a “sweeping and broadly phrased” en-

deavor to secure “a tremendous array of materials,

ignored Rule 16(b)’s admonition of reasonableness. His

subpoena effort, deserving of like characterization,” simi-

„See note 81 supra.

See note 81 supra and note 89 infra.

8 United States v. Nixon, supra note 82, 418 U.S. at 699-

700.

* United States v. Mitchell, supra note 66, 397 F.Supp. at

184.

s See note 79 supra. “While specific designation is not re-

quired 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 rea-

sonableness will permit the court to define and limit the scope

of the government’s obligation to search its files while meet-

ing the legitimate needs of the defendant.” Advisory Com-

mittee Note to 1966 Amendment. Compare United States v.

Jordan, 399 F.2d 610, 615 (2d Cir.), cert. denied, 393 U.S.

1005 (1968); United States v. Ross, 511 F.2d 757, 763 (5th

Cir.), cert. denied, 423 U.S. 836 (1975).

* 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 mat-

larly defied Rule 17(c)’s counterpart.” More importantly,

in neither instance, so far as the record discloses, did

Ehrlichman attempt any demonstration of materiality

or relevance of any file item to the exigencies of his

defense, nor does he offer any explanation even now.

There is no room for any suggestion that this omission

is attributable to any informational handicap,“ for Ehr-

lichman has long since had ample opportunity to examine

the files and to fully acquaint himself with their con-

tents.**

ters which refer to or relate to the concealment or cover-

up of the break-in into D-mocratic National Headquar-

ters 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 pe-

riod June 17, 1972 to May 1, 1973 * * *.” Br. for United

States at 211.

% See note 81 supra. The requirement of reasonableness

subsumes a duty to designate the documents sought with rea-

sonable particularity. See, e.g., Margoles v. United States,

402 F.2d 450, 451-52 (7th Cir. 1968).

Compare, e.g., United States v. Schembari, 484 F.2d 931,

935 (4th Cir. 1973); United States v. Ross, supra note 88,

511 F.2d at 763.

* 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. 187, 191 (No. 14694) (C.C.D. Va. 1807). See

also United States v. Ross, supra note 88, 511 F.2d at 763-764.

„ Ehrlichman had personal access to the White House files,

and he utilized the opportunity to review them. He asserts,

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 iiles do

not reflect intercommunication and other interaction with

President Nixon,“ and “[i]n no case of this kind would

a court be required to proceed against the president as

an ordinary individual.“ On the contrary, any court

completely in the dark as to what Presidential files con-

tain is duty bound to respect “the singularly unique role

under Art. II“ of a President's communications and ac-

tivities, related to the performance of duties under that

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 prohibi-

tion 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 con-

versations. The [restrictive] order did not prevent Eur-

lichman from leaving the room where the files were lo-

cated 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 fram-

ing subpoenas duces tecum for relevant material so

located.

United States v. Ehrlichman, supra note 17, —— U.S. App.

D.C. at . F.2d at ——, slip op. at 40-41. The condi-

tions here were no different, and we reaffirm what we said

there. i

* For example, see note 78 supra.

* United States v. Nixon, supra note 66, 418 U.S. at 715,

quoting United States v. Burr, supra note 92, 25 Fed.Cas. at

192.

U. S. Const. art. II.

Article.“ “ For “a President's communications and ac-

tivities encompass a vastly wider range of sensitive ma-

terial than would be true of any ‘ordinary individual,’ ” *

and “[ijt is therefore necessary in the public interest

to afford Presidential confidentiality the greatest protec-

tion consistent with the fair administration of justice.“

Not only, then, were the Criminal Rules governing evi-

dentiary discovery and production to be meticulously ob-

served, but an even higher standard was to be met.

The White House files were “presumptively privileged” *”

and the burden of justifying production was Ehrlich-

man's.“ Nothing less than a demonstrated, specific

need for evidence in a pending criminal trial“ “ could

carry that burden here. In appropriate cases there may

well be a difference in result when the claim of privilege

is asserted and the incumbent president interposes no

objection. But even so, there is a presumption of privi-

lege which can only be overcome by some demonstration

of need. From what we have already said, it is mani-

United States v. Nixon, supra note 82, 418 U.S. at 715.

8 Td.

9 Id.

100 See text supra at notes 79-86.

0 United States v. Nixon, supra note 82, 418 U.S. at 708,

quoting Nixon v. Sirica, 159 U.S. App. D.C. 58, 75, 487 F.2d

700, 717, 19 A. L. R. Fed. 343 (en banc 1973). No question has

been raised as to whether inspection of White House files by

the defendants and their counsel, and trial use of informa-

tion thereby obtained, operated as a waiver of the Presiden-

tial privilege as to broader inspections or added uses. Cf.

= v. Strica, supra, 159 U.S.App.D.C. at 76, 487 F.2d at

102 United States v. Nixon, supra note 82, 418 U.S. at 699-

700, quoted in text supra at note 86; Senate Select Comm. on

Presidential Campaign Activities v. Nixon, 162 U.S. App. D.C.

183, 187-191, 498 F.2d 725, 729-733 (en bane 1974).

00 United States v. Nixon, supra note 82, 418 U.S. at 713.

104 See text supra at notes 87-93.

fest that for information in the files beyond that which

Ehrlichman was indulged, the burden was not discharged

here.

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 be deemed reasonable. Nor, any more than with

respect to the White House files, was there any attempt

to show materiality of congressional items to the de-

fense.“ Even as to one category of information even-

tually designated—evidence taken in executive session

by the Subcommittee on Intelligence of the House Armed

Services Committee—the motion encountered these prob-

lems and more. The record reveals beyond peradventure

that while the Subcommittee originally refused to furnish

any of the evidence, at least some—including Ehrlich-

man's own testimony before the Subcommittee **—was

later supplied,“ and that free access to all of the evi-

dence was conferred ultimately.“ Ehrlichman does not

say that these concessions came too late in the trial to

serve his interests nor, if they did, does he indicate

105 See text supra at note 87.

106 See note 88 supra and accompanying text.

107 See text supra at note 91.

108 Tr. 9115.

1 Tr. 9115, 9246-9250, 9304-9305.

110 Tr. 9620-9621.

A related matter is Ehrlichman’s invocation of the

Jencks Act, 18 U.S.C. § 3500 (1970), which entitles an ac-

cused, 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 sub-

ject matter as to which the witness has testified.” Id. § 3500

(b). “Statement” includes a contemporaneous and substan-

tially verbatim recording or transcription of oral testimony,

id. § 3500 (e) (2), and Ehrlichman 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 con-

templated 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, —— U.S.App.D.C. at '

—— F.2d at ——,, slip op. at 12-15; Harney v. United States,

306 F.2d 523, 532-538 (Ist Cir.), cert. denied, 371 U.S. 911

(1962); United States v. Lev, 258 F.2d 9, 12-13 (2d Cir.

1958), aff'd by equally divided court, 360 U.S. 470 (1959);

Calley v. Callaway, 519 F.2d 184, 224-226 (5th Cir. en banc

1975); United States v. Ehrlichman, 389 F.Supp. 95 (D. D.C.

1974), aff'd, No. 74-1882 (D.C. Cir. May 17, 1976); United

States v. Tane, 29 F.R.D. 131, 133 (E.D. N.Y. 1962); United

States v. Calley, 46 C. M. R. 1131, 1190-1194, aff’d, 48 C. M. R.

— (1973). We are not summoned to address that question

ere.

Jencks Act requirements do not rise per se to constitu-

tional stature, Scales v. United States, 367 U.S. 203, 258

(1961); Palermo v. United States, 360 U.S. 343, 345 (1959);

we deal rather with rules of evidence statutorily ordained for

federal criminal trials. United States v. Augenblick, 393 U.S.

348, 356 (1969). The Act expressly provides that in such

trials no statement or report in the possession of the United

States which was made by a Government witness or prospec-

tive Government witness (other than the defendant) to an

agent of the Government shall be the subject of subpena, dis-

covery, or inspection until said witness has testified on direct

examination in the trial of the case.” 18 U.S.C. § 3500(a)

(1970). The Act supplies the only avenue to the materials it

encompasses, and “statements of a government witness made

to an agent of the Government which cannot be produced

under the terms of 18 U.S.C. § 3500 cannot be produced at

all.” Palermo v. United States, supra, 360 U.S. at 351.

It follows that neither Ehrlichman’s discovery motion nor

any other effort to gain pretrial access to such statements

could prevail, and that any further inquiry—aside from the

question we have pretermitted—would be limited to whether

Ehrlichman was barred from the Subcommittee testimony of

any prosecution trial witness or witnesses and whether any

such deprivation was prejudicial. Because Ehrlichman has

in any way how he might possibly have been harmed

by the delay. Rather, his complaint, as nearly as we

not fulfilled his responsibilities incidental to judicial resolu-

tion of these questions, we do not speculate on the answer to

either.

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 con-

dition 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, Ehrlich-

man insists that he never gained access to any of the testi-

mony, see note 113 infra and accompanying text, and his

tardiness in raising the point has foreclosed responsive brief-

ing by the Special Prosecutor. See note 113 infra and accom-

panying 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. Cm. R. 8 (e), and we think it un-

wise to attempt a search of a three-month-trial record gen-

erating more than 12,000 pages of transcript in a quest for

unspecified error. Compare Minnesota Mining and Mfg. Co.

v. Technical Tape Corp., 309 F.2d 55, 59 (7th Cir. 1962),

cert. denied, 372 U.S. 942 (1963). See also Holt v. Sarver,

442 F.2d 304, 307 (8th Cir. 1971); Herrera v. United States,

280 F.2d 888, 889 (9th Cir. 1960). And even if it could be

demonstrated that the Subcommittee’s delay in producing the

testimony had some consequence, any undertaking to assess

possible prejudice to Ehrlichman would be perilous. There

is positive indication in the record that all Subcommittee tes-

timony became accessible while the trial was ongoing, see

notes 109, 110 infra and accompanying text, and Ehrlichman

does not point to the least bit of harm that could be attributed

to the delay, and in the face of the overwhelming evidence

against him it may well be doubted that in any event there

was harm necessitating reversal. See note 112 infra. In this

milieu, we leave the matter as it is.

1 Compare United States v. Pinkney, —— U.S. App. D. C.

a & n.59, — F.2d 8 & n.59 (No. 74-1846,

decided June 29, 1976), slip op. at 16 & n.59; United States

v. Ehrlichman, supra note 17, —— U.S.App.D.C. at ——

n.95, F.2d at —— n.95, slip op. at 37 n.95. Error not

can fathom it, is that at no time was any of the evi-

dence available to him.“ In light of the disclosures by

affecting substantial rights is to be disregarded. Fp. R.

CRIM. P. 52(a). Compare United States v. Bundy, 153 U.S.

App.D.C. 191, 192, 472 F.2d 1266, 1267 (1971) (Brady doc-

trine, Jencks Act); Leach v. United States, 115 U.S.App.D.C.

351, 352-353, 320 F.2d 670, 671-672 (1963) (Jencks Act);

Hansen v. United States, 393 F.2d 763, 769-770 (8th Cir.),

cert. denied, 393 U.S. 833 (1968) (discovery). Surely there

is no plain error, see FED. R. CRIM. P. 52 (b), in regard to

discovery by Ehrlichman.

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, 519 F.2d

184, 220-224 (5th Cir. en banc 1975); United States v. Ehr-

lichman, 389 F.Supp. 95, 97 (D. D.C. 1974); United States

v. Ehrlichman, 376 F.Supp. 29, 36 (D. D.C. 1974); or whether

in any event the materials were legally amenable to a sub-

poena duces tecum. Compare United States v. Liddy, No. 74-

1885 supra note 17, —— U.S.App.D.C. at , F.2d at

——,, slip op. at 12-15; Nixon v. Sirica, supra note 101, 159

U.S.App.D.C. at 73 n.70, 487 F.2d at 715 n.70.

n In his opening brief Ehrlichman made only passing ref-

erence to the initial refusal of the Subcommittee on Intelli-

gence 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 be-

fore the Subcommittee on Intelligence of the House Armed

Services Committee” and that “[a]s a result, [he] was de-

prived 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 nor-

maily to be considered on appeal. Finsky v. Union Carbide

& Carbon Corp., 249 F.2d 449, 459 (7th Cir. 1957), cert. de-

nied, 356 U.S. 957 (1958); Mississippi River Corp. v. FTC,

454 F.2d 1083, 1093 (8th Cir. 1972); Frederick v. United

the record, we cannot accept that position; nor, without

elucidation from Ehrlichman of the elements of a differ-

ent claim, can we say that his right to discovery was in

any wise abrogated.

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 chal-

lenges and the defendant or defendants jointly to 10

peremptory challenges.” It further provides that “[iJf

there is more than one defendant, the ccurt may allow the

defendants additional peremptory challenges and permit

them to be exercised separately or jointly.” The defend-

ants 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 de-

fendant. Together with the mandated 10 challenges, to

be exercised jointly, this award gave the defendants a

total of 15 challenges. The judge indicated his unwilling-

ness 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 agree-

ment was reached, the totals remained at six and 15 re-

spectively. J.A. 509; Tr. 698.

States, 163 F.2d 536, 549 (9th Cir.), cert. denied, 332 U.S.

775 (1947). In this instance, Ehrlichman’s handling of the

point has deprived us of the benefit of a response by the Spe-

cial Prosecutor. At most, we can accept Ehrlichman’s pres-

entation only as a thesis assuming complete nonaccess to the

testimony, a premise directly refuted by the record. See notes

108-110 supra and accompanying text.

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, 512

F.2d 637, 644 (6th Cir.), cert. denied, 422 U.S. 1008

(1975), and 423 U.S. 840 (1975) ; United States v. Wil-

liams, 463 F.2d 393, 395 (10th Cir. 1972) ; United States

v. Crutcher, 405 F.2d 239, 245 (2d Cir. 1968), cert. de-

nied, 394 U.S. 908 (1969) ; 2 C. WRIGHT, FEDERAL PRAC-

TICE AND PROCEDURE, CRIMINAL § 386 (1969). The trial

judge’s decision to grant the defendants’ request in part—

providing them with two and one-half times the number

of challenges held by the Government—reflects his aware-

ness of the problem of pretrial publicity in this case.

His refusal to grant that request in its entirety reflects

a legitimate concern with the wisdom of providing one

— with a far greater number of challenges than the

other.

Indeed, a proposal to amend Rule 24(b) has been ap-

proved by the Advisory Committee on Rules and Practice

of the Judicial Conference of the United States, the Ju-

dicial Conference itself, and most recently by the Supreme

Court,. and will take effect shortly unless blocked by

action of one House of Congress, but cf. H.R. 13899

gath Cong., 2d Sess. (1976) (bill to delay the effective

date of the proposed revisions of the Federal Rules of

Criminal Procedure). It provides that, in felony cases,

* For the Advisory Committee’s report, see Commi

Rules of Practice and Procedure of the Judicial —

of the United States, Preliminary Draft of Proposed Amend-

ments 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

- — Court, see 44 U.S. L. WEEK 4549-4550 (Apr. 27,

the Government and the defense are entitled to an equal

number of challenges and, in multiple defendant cases, a

District Judge may award additional challenges to the

Government as well as the defense. See 44 U.S. L. WEEK

4549-4550. The District Judge explicitly relied on the Ad-

visory Committee’s proposal in reaching his decision. See

J.A. 511. It is true that the proposed revision was not in

effect at the time of trial. Yet the District Judge surely

is to be commended rather than faulted when, in exer-

cising his broad discretion under Rule 24(b), he sought

guidance from the most recent thinking of the Advisory

Committee.

Appellants also complain that the trial judge’s unwill-

ingness 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 discre-

tion in a way that he thinks provides a fair balance be-

tween 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 defend-

ants’ 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 govern-

ment 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 ex-

empt 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 pre-

determined list to a venireman allegedly favorable to the

prosecution. Assuming arguendo that appellants’ char-

acterization of this strategic decision is accurate, we find

nothing prejudicial about their having been required to

face it.“ The fact is that by choosing to forfeit the

challenges appellants obtained a jury that, in their view,

was more advantageous than the jury that they would

have obtained by exercising the challenges. It is true

that when prospective jurors are selected for the jury

box in a non-random order, and both sides have opinions

about the desirability of particular prospective jurors,

tactical decisions will have to be made. But that results

directly from relying upon a non-random order, not an

unusual practice and one which was adopted with the

encouragement of the defendants and over the objection of

the Government, see Tr. 1231-1236. The trial judge has

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.

broad discretion to structure the method of exercising

peremptory challenges, see, e. g., United States v. Mayes,

supra, at 644; United States v. Williams, 447 F.2d 894,

896-897 (5th Cir. 1971); Amsler v. United States, 381

F.2d 37, 44 (9th Cir. 1967); United States v. Mackey,

345 F.2d 499, 501-503 (7th Cir.), cert. denied, 382 U.S.

824 (1965), and he did not abuse it in this case.

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 physic-

ally 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 also

subpoened Nixon. On September 18 Ehrlichman filed a

one-paragraph motion for a 60- to 90-day continuance,

stating that “recent public accounts of Mr. Nixon’s health

suggest that he may be physically unable to testify when

called at the trial as now set” and that “Mr. Nixon’s per-

sonal appearance at trial is indispensable to Mr. Ehr-

lichman’s defense.” Doc. 303. The Government opposed

the motion, arguing that it had “just as much interest in

securing Mr. Nixon’s testimony,” but that the “factual

basis” for Ehrlichman’s motion was “entirely specula-

tive.” Doc. 306. The Government suggested that the court

either conduct an immediate inquiry into Nixon’s health

or wait to see if Nixon appeared on the date on which

the subpoena was returnable. On September 20th the

District Court denied the motion for a continuance.

Doc. 307.

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, Ehrlichman moved,

pursuant to FED. R. Crim. P. 15, for authorization to de-

pose 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 “throm-

bophlebitis, and as a result requires present hospitaliza-

tion 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 com-

pel “ * * 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

Miller filed an affidavit reporting on Nixon’s 2

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 dis-

covered; that a test performed on September 30 indicated

the embolus was resolving itself; and that tests were re-

sumed 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 medica-

tion, 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. On the basis of this prognosis, Miller filed

motions to quash the two subpoenas issued to his client.

Docs. 362, 363.

Ehrlichman replied to the motion to quash by renewing

his motions for leave to depose, a severance, and a con-

tinuance, again noting and expanding on the issues on

which Nixon’s testimony was needed. Doc. 396. Halde-

man 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 assess Nixon’s

health and ability to testify. The Government stated,

however, that it would no longer insist upon Nixon’s

testimony as part of its direct case because it intended

to authenticate the White House tapes with other proof.

On October 17 a hearing was held on the motion to

quash. “ At that time Miller reported that his client’s

16 This was corroborated by an affidavit by Nixon’s physi-

cian filed on Oct. 7. Doc. 368.

* On the day of the hearing Nixon’s counsel filed an up-

dated medical report, indicating that the doctors had deter-

mined that the cause of the clots was Nixon’s chronic phlebitis,

prognosis was good, and predicted that within 3-4 weeks

“we would no longer wish to raise the health issue

Tr. 2953. Ehrlichman’s lawyer then stated that “we are

not pressing for an immediate disposition of this * * *

[but] neither do we want to place ourselves in a position

where we waive anything.” The court deferred ruling on

the motion to quash, and requested an updated medical

report from Nixon within three weeks. Id. 2957.

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 hos-

pitalized for an additional ten days to two weeks. There-

after, he would be precluded from “any activity requir-

ing 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

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.

48 On Nov. 13, 1974 counsel updated his affidavit by report-

ing that Nixon had been having “labile hypertension seem-

ingly 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.

— —— ͤꝓ ae ~

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

flled motions to depose Nixon and to continue the trial

until that was possible. Docs. 516, 524, 525, 526. Halde-

man and Ehrlichman repeated the statements from their

earlier motions concerning their need for Nixon's testi-

mony; 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 seques-

tered jury during the requested continuance. Docs. 524,

526, 527. Co-defendant Mardian filed a statement oppos-

ing 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 de-

posed starting January 6, he would not be well enough

to prepare prior to that date, and would need a “sub-

stantial” 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.“ The trial therefore pro-

ceeded as scheduled, and the last defendant completed his

case on December 19. After a brief rebuttal case by the

Government, the summations began the same day and

stretched over the next week. The jury began deliberat-

ing on December 30 and returned its verdict on January

1, 1975.

1° United States v. Mitchell, 385 F.Supp. 1190 (D. D.C.

1974).

B. General Principles

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.”

On the other hand, the Government generally has a sub-

stantial interest in avoiding disruptions of a court’s cal-

endar and in having guilt or innocence promptly adjudi-

cated." Accordingly, in ruling on motions for continu-

ances trial judges must carefully evaluate and then bal-

ance the defendant’s need for the continuance against

the Government’s interest in going forward. Because no

firm rules can be articulated as to when a continuance

is required,“ the decision to grant a continuance is

vested in the trial judge’s discretion, and reviewable only

when such discretion has been abused.“

120 Washington v. Texas, 388 U.S. 14, 19 (1967) ; see Shirley

v. North Carolina, 528 F.2d 819 (4th Cir. 1975); Johnson v.

Johnson, 375 F.Supp. 872 (W.D. Mich. 1974). See generally

Westen, The Compulsory Process Clause, 73 MicH.L.REv. 71

(1974), and Compulsory Process II, 74 Mich. L. RE. 191

(1975).

11 See Barker v. Wingo, 407 U.S. 514, 519-521 (1972).

122 See note 128 infra. But see Westen, Compulsory Process

II, 74 MicuH.L.REv. 191, 244-250 (1975).

123 See, e.g., Isaacs v. United States, 149 U.S. 487, 489

(1895); Mahoney v. United States, 137 U.S.App.D.C. 3, 5,

420 F.2d 253, 255 (1969); United States v. Brandenfels, 522

F.2d 1259, 1262 (9th Cir. 1975); cf. Ungar v. Sarafite, 376

U.S. 575, 589 (1964) (same rule for state court trial judges) ;

Franklin v. South Carolina, 218 U.S. 161, 168 (1910) (same).

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 de-

fendant’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.“ Second, the court must as-

sess the likelihood—again based primarily on defendant’s

showing—that the evidence will be favorable to the

defense and, if so, that it will be significant. Third,

124 See, e.g., United States v. Reed, 155 U.S. App. D. C. 198,

200 n.1, 476 F.2d 1145, 1147 n.1 (1973) (whereabouts un-

known); United States v. Brandenfels, 522 F.2d 1259, 1262-

1263 (9th Cir. 1975) (missing witness may not be extradited,

and if extradited could invoke Fifth Amendment privilege) ;

United States v. Cawley, 481 F.2d 702, 705 (5th Cir. 1973)

(fugitive) ; Powell v. United States, 420 F.2d 799, 801 (9th

Cir. 1969) (immune to process); cf., e.g., United States v.

Bolden, 169 U.S. App. D.C. 60, 70, 514 F.2d 1301, 1311 (1975)

(severance not required where no indication co-defendant

would waive Fifth Amendment if defendant tried separately).

128 See, e.g., Isaacs v. United States, 159 U.S. 487, 489

(1895) (evidence would have been cumulative) ; Crumpton

v. United States, 138 U.S. 361, 364-365 (1891) (testimony

“of little importance”) ; United States v. Reed, supra note 124,

155 U.S.App.D.C. at 200 n.1, 476 F.2d at 1147 n.1; Payton

v. United States, 96 U.S.App.D.C. 1, 3, 222 F.2d 794, 796

(1955) (lack of specificity in proffer); United States v.

Cawley, 481 F.2d 702, 705 (5th Cir. 1973); United States

v. Harris, 436 F.2d 775, 776 (9th Cir. 1970).

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, 324 F.2d 814

(2d Cir. 1963) (continuance required for defendant to pro-

duce Government informer in hopes of substantiating entrap-

ment defense). However, if the defendant is able to produce

the court must determine whether the defendant acted

with diligence in attempting to secure the missing evi-

dence in time for trial.“ Finally, the court should con-

sider the length of the continuance being requested and

the burdens that would be placed on the Government and

the court if the request were granted.

a “verifiable representation” of what the proposed witness

would say, that fact may bear on the District Judge’s ruling.

Cf. Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970)

(severance required where co-defendant’s prior statements

indicate he would exonerate defendant if he testified) ; United

States v. Echeles, 352 F.2d 892 (7th Cir. 1965) (same).

126 See, e.g., Isaacs v. United States, supra note 125, 159

U.S. at 489; Crumpton v. United States, supra note 125, 138

U.S. at 364; Mahoney v. United States, supra note 123, 420

F.2d at 255; Neufield v. United States, 73 App.D.C. 174, 179,

118 F.2d 375, 380 (1941), cert. denied, sub nom. Ruben v.

United States, 315 U.S. 798 (1942).

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, 118 F.2d at

380. We do not read Newfield as necessarily holding, however,

that a party who makes the requisite minimum showing al-

ways will be entitled to a continuance regardless of the dis-

ruptions that a continuance would cause. And our subsequent

decision in J. E. Hanger, Inc. v. United States, 81 U.S.App.

D.C. 408, 160 F.2d 8 (1947), indicates that sometimes a con-

tinuance will be required even absent a specific proffer as to

the nature of the missing evidence. See also note 125 supra.

Thus we restate the requirements here as factors bearing on

the ultimate question Neufield poses: is a continuance rea-

sonably necessary for a just determination of the cause.” 73

App.D.C. at 179, 118 F.2d at 380; cf. Byrd v. Wainwright,

428 F.2d 1017, 1019-1020 (5th Cir. 1970) (adopting a similar

approach to severances).

127 Compare, e.g., United States v. Reed, supra note 124, 155

U.S.App.D.C. at 200 n.1, 476 F.2d at 1147 n.1 (indefinite inter-

ruption of trial) ; and United States v. Trenary, 473 F.2d 680,

682 (9th Cir. 1973) (6-month continuance); with J. E.

Hanger, Inc. v. United States, supra note 126 (2-day continu-

ance) ; and Johnson v. Johnson, 375 F.Supp. 872 (W.D. Mich.

1974) (1-day continuance).

C. Application of Law to Facts

In denying the final requests for a continuance,’ the

district judge focused on the delay and burden that would

be entailed in securing Nixon’s testimony, and on the

likelihood that the testimony would be favorable to and

significant for appellants’ defenses. The court found that

securing the testimony would necessitate a lengthy eon-

tinuance, during which time the jury would have to be

sequestered.“ It concluded that the defendants had failed

to justify such a prolonged continuance, and had failed

to show, as required by Rule 15, that a deposition of

Nixon was necessary “to prevent a failure of justice.“

The District Court’s exclusive focus on the burdens of

a continuance and the likely significance of Nixon’s tes-

timony was entirely proper. Appellants were not re-

sponsible 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 re-

cover his health so as eventually to be able to testify,

In rejecting the earlier requests the District Court prop-

erly 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 Oc-

tober 29, and his even more unexpected reaction to the sur-

gery, 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 condi-

tions then existing.” Avery v. Alabama, 308 U.S. 444, 446

(1940) ; see Ungar v. Sarafite, supra note 123, 376 U.S. at 589.

129 United States v. Mitchell, supra note 119, 385 F.Supp. at

1192.

% Id. at 1192-1193.

181 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.

there was nothing in the medical reports suggesting the

contrary. Thus the dispositive question before the Dis-

trict 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 abun-

dantly supported by the record. The court relied on three

factors in reaching its conclusion. First, it predicted,

based on representations made to it by counsel, that all the

evidence would be presented “well before” January 6th,

the “earliest possible date” Nixon would be well enough

to begin the deposition; “ with hindsight, we know that

all defendants rested two and one half weeks before Jan-

uary 6th. Second, the court agreed with Nixon’s uncon-

troverted statement that even if he were physically able

to be deposed starting January 6th, the deposition still

could not commence then because he would need time to

review his voluminous records.“ Finally, the court noted

that the deposition process itself would be “very lengthy,”

since Nixon’s health permitted only two hours of ques-

tioning per day.“ Indeed, before learning of these time

limitations, Ehrlichman and Haldeman each had estimated

independently that deposing Nixon would take “not less

than two weeks to conclude.” Thus Haldeman’s estimate

in his final motion for continuance that “a month or

more” would be required to secure Nixon’s testimony,

and the Government’s estimate of “at least four or five

weeks,” seem, if anything, understated.

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

182 Td. at 1192.

139 Id.

14 Id.

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 nor co-defendants Mardian and

Parkinson had waived their rights to a sequestered jury,

the court virtually would have been compelled to keep

the jury sequestered during the continuance.““ This ob-

viously would have disrupted the lives of the jurors,

the alternatives, and their guards, and would have been

costly to the Government as well. Third, even with the

jury sequestered, the Government and Mardian might

have been prevented from receiving a fair trial. The

jury might have resented the prolonged period of idle-

ness and consciously or otherwise blamed all the defend-

ants for it, and in any event, after a long delay the evi-

dence would have been less fresh in the jurors’ minds

during their deliberations. Finally, regardless of preju-

dice, Mardian had a substantial interest in a quick end-

ing to the cloud of uncertainty that had enveloped him,

and the public a similar interest in a speedy resolution

of this major trial.

#85 This court has held that sequestration is proper despite

a defendant’s objection. Baker v. United States, 131 U.S.App.

D.C. 7, 16-17, 401 F.2d 958, 967-968 (1968). See also United

States v. Holowachka, 314 F. 2d 345, 351-352 (7th Cir.), cert.

denied, 374 U.S. 809 (1963); United States v. Isaacs, 364

F.Supp. 895, 899-900 (N.D. Ill. 1972), conviction affirmed,

493 F.2d 1124 (7th Cir.), cert. denied, 417 U.S. 976 (1974).

The reason for this rule is plain: the public, as well as the

accused, has a substantial interest in having guilt or innocence

decided by a jury free from prejudicial infiuences.

% It is axiomatic that the decision to sequester (or unseques-

ter) a jury rests within the trial judge’s discretion. See, e.g.,

Holt v. United States, 218 U.S. 245, 250-251 (1910); Carter

v. United States, 102 U.S.App.D.C. 227, 231, 252 F.2d 608,

612 (1957).

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 Dis-

trict Court observed, but also, to a great extent, ap-

pellants failed to indicate what testimony they hoped to

elicit. Appellants’ proffers frequently listed topics they

wanted Nixon to discuss, without explaining the reasons

they wanted him to discuss the topics, i.e., what they ex-

pected to gain from his testimony on those topies.“

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 regard-

ing conversations Nixon had with persons who were

neither defendants nor unindicted co-consp

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