Brief for the Respondent in Opposition — McCord v. United States (No. 74-988)

INDEX

Opinion Below

Jurisdiction

Questions Presented

Statement

Argument

Conclusion

CITATIONS

Cases:

Brady V. Maryland, 373 U.S. 83 (1962) -...............

Brady Vv. United States, 397 U.S. 746 (1970) .........

Davis v. United States, 411 U.S. 233 (1973) .........

Giglio v. United States, 405 U.S. 150 (1972) .........

Glasser Vv. United States, 315 U.S. 60 (1942) ........

Gravel v. United States, 408 U.S. 606 (1972) _.....

Green V. United States, 256 F.2d 483 (1st Cir.),

cert. denied, 358 U.S. 854 (1958)

O’Shea V. Littleton, 414 U.S. 488 (1974) —......000.....

Oyler v. Boyles, 368 U.S. 488 (1962) .....

Schick v. Reed, —— U.S. ——, No. 73-5677, de-

cided December 23, 1974

United States v. Berrigan, 482 F.2d 171 (3d Cir.

1974)

United States v. Berrios, 501 F.2d 1207 (2d Cir.

1974) ’

United States v. Bridges, 432 F.2d 692 (1970) .......

United States v. DeCoster, 487 F.2d 1197 (1973)...

United States v. Lemonakis, 485 F.2d 941 (1973)..

United States v. Russell, 411 U.S. 423 (1973) .........

Constitution:

United States Constitution, Sixth Amendment ......

Article II, section 2, clause 1 .............220222.222222ecee

Rule:

Rule 12(b) (2), F.R.Cr.P. ....

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Iu the Supreme Court of the Anited States

OcTOBER TERM, 1974

No. 74-988

JAMES W. McCorD, JR., PETITIONER

v.

UNITED STATES OF AMERICA

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the District of Columbia Circuit

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BRIEF FOR THE UNITED STATES IN OPPOSITION

JURISDICTION

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OPINION BELOW c

The opinion of the court of appeals (Pet. App.)

is not yet reported. :

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The judgment of the court of appeals was entered ;

on December 12, 1974. The petition for a writ of |

certiorari was filed on February 7, 1974. The juris-

diction of this Court is invoked under 28 U.S.C.

1254(1).

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QUESTIONS PRESENTED

1. Whether the public disclosure of the Watergate

cover-up conspiracy, a conspiracy in which petitioner

participated, constitutes newly discovered evidence

which now gives petitioner a defense to his convic-

tion for participation in the Watergate break-in and

electronic surveillance and entitles him to a new

trial.

2. Whether petitioner was deprived of a fair trial

by prosecutorial misconduct.

3. Whether petitioner was denied the effective

assistance of counsel.

4, Whether petitioner was entrapped.

5. Whether impermissible prosecutorial selectivity

and the pardon granted to Richard Nixon deprived

petitioner of the equal protection of the laws.

STATEMENT

After a jury trial in the United States District

Court for the District of Columbia, petitioner, to-

gether with G. Gordon Liddy,’ was convicted of con-

spiracy, burglary, illegal interceptions of oral and

wire communications, and unlawful possession of in-

tercepting devices, all arising out of illegal entry

and electronic surveillance at the offices of the Demo-

cratic National Committee at the Watergate office

1 Liddy’s conviction was affirmed on November 8, 1974,

and this Court denied certiorari on January 27, 1975. (No.

74-5678). Codefendants Hunt, Barker, Martinez, Gonzalez,

and Sturgis pleaded guilty.

3

building. The district court denied petitioner’s post-

trial motion seeking collateral relief based upon

newly discovered evidence, and on November 9,

1974, petitioner was sentenced to imprisonment for

not less than one year nor more than five years on

each of eight counts, the sentences to run concur-

rently. On appeal, the conviction was unanimously

affirmed by the court of appeals, sitting en banc

(Pet. App. 1a-36a).’

The trial. The evidence of petitioner’s guilt at

trial was compelling and incontrovertible. Petitioner

and four others were arrested by police officers at

approximately 2:00 a.m. on June 17, 1972, in the

offices of the Democratic National Committee at the

Watergate office building. He had on his person or

in his control documents removed from the files of

the Democratic National Committee, burglary tools,

electronic wiretapping and eavesdropping devices

and a mace dispenser (Tr. 587-589, 601-604, 659-

667, 729-733, 736, 739). At the time of his arrest,

petitioner was an employee of a committee for the

re-election of the President (Tr. 1347-1349), and he

carried out the break-in and surveillance under the

wisitiibaayalan ;

2 Petitioner’s motion was styled as a petition “in the nature

of” a writ of error coram nobis, but was treated below as a

motion for a new trial under Rule 33 of the Federal Rules of

Criminal Procedure insofar as it sought a new trial based

upon newly discovered evidence (Pet. App. 3a-5a).

8 Petitioner’s application for bail pending disposition of his

petition for a writ of certiorari (No. A-658) was denied by

the Chief Justice on February 10, 1975.

4

direction of G. Gordon Liddy, also an employee of

the committee (Tr. A81, LARG-1L49, 1422-44205 ?

Petitioner previously had hired a former FBI agent

to monitor telephone conversations transmitted from

the Democratic National Committee from hidden

eavesdropping devices. The agent was stationed in

a motel room rented by petitioner and _ utilized

equipment purchased by petitioner. All logs of the

conversations were delivered to petitioner. (Tr. 909-

912, 918-920, 929-934, 949, 1092, 1167, 1513, 1523-

1525.) Petitioner had instructed the agent that he

was interested in “any conversation involving politi-

cal strategy and a personal nature—he wanted all

conversations recorded” (Tr. 1031).

Post-trial disclosures. On March 19, 1973, shortly

before the original date for sentencing, petitioner

wrote a letter to the trial judge. He said in part that

political pressure had been applied to the defendants

to plead guilty and remain silent, that perjury oc-

curred during the trial about the involvement of

others and that the perjury was material to the mo-

*On at least two occasions, petitioner also had engaged in

attempts to install eavesdropping devices in Senator McGov-

ern’s campaign headquarters (Tr. 464-469, 477-482, 942).

The principal theory of petitioner’s defense at trial was

“duress”—that he had committed the acts charged in the

indictment as a result of a compelling concern for the safety

of the re-election committee personnel and government offi-

cials and the possibility of violent demonstrations against

campaign activities (Tr. 544-550). The trial court advised

counsel that he would not give instructions to the jury relating

to this defense (Tr. 1661-1668). Petitioner’s defense consisted

of three character witnesses.

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5

tivation and intent of the defendants. As to his own

motisatiann, he anid. that thesy “were inde limitoch ‘ou,

or simply those offered in my defense during the

trial. This is no fault of my attorneys, but of the

circumstances under which we had to prepare my

defense.”

The Senate Committee testimony. In May 1978,

petitioner testified before the Senate Select Commit-

tee on Presidential Campaign Activities about the

planning of clandestine intelligence activities and his

involvement in the Watergate break-in and cover-up

conspiracy. In brief, petitioner knew from the outset

that Attorney General John Mitchell (soon to become

chairman of the Committee to Re-Elect the Presi-

dent) was involved actively in political matters.

Liddy, who was in charge of political espionage for

the Committee, told him that the Watergate opera-

tions were planned in meetings among Liddy, Mitchell,

John Dean (Counsel to the President), and re-elec-

tion official Jeb Magruder, both in the offices of the

Attorney General and in the offices of the Committee

to Re-Elect the President. According to Liddy,

Mitchell wanted a telephone of a senior official of the

Democratic party and a room in Democratic head-

quarters bugged. (Senate 142, 157-158, 172-173,

183, 185.)° McCord further testified that although

5 “Senate” refers to Hearings before the Senate Select Com-

mittee on Presidential Campaign Activities on Watergate and

Related Activities, 93rd Cong., Ist Sess. (1973), Book 1. Al-

though this testimony was not introduced into evidence below,

both parties and the court of appeals below referred freely to

the testimony.

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he had become involved in the break-in because

Mitchell and Dean had authorized it, he never har-

bored an affirmative belief in the legality of the pro-

posed break-in (Senate 128-129, 174, 176) and knew

that the break-in was part of a larger plan for gath-

ering “political intelligence’ (Senate 127-28, 203).

Petitioner also disclosed that after the break-in

he received $25,000 from Mrs. E. Howard Hunt for

the payment of legal fees, that he received his salary

through January 1973, and that in the fall, E. How-

ard Hunt told him that each defendant who pleaded

guilty would receive financial support in prison, ex-

ecutive clemency after serving a part of his sentence

and perhaps a job after release. Moreover, accord-

ing to petitioner, during his trial Gerald Alch, his

attorney, told him that he would be called by a friend

from the White House, who petitioner assumed would

be John Caulfield, the person who had recruited him

for the Re-Election Committee. Petitioner testified

that he subsequently met with Caulfield on three oc-

casions, but refused to discuss a job offer or execu-

tive clemency conditioned on a guilty plea and silence

and firmly stated that he intended to plead not guilty

and fight the case through the courts (Senate 130-

131, 134, 138-140).

Finally, petitioner stated before the Committee

that in late December 1972, before his trial began,

he had determined to tell the true story of Watergate

at a propitious time—“it was a day at a time de-

cision on my part as to when was the proper issuance

time to tell the facts on this case.” According to

SOLA IGOR PELL DIE LE AY LLELE IG AIM LE DOVER REPEL

7

petitioner’s testimony at that time, Alch never urged

him to plead guilty or keep silent, and the decision

not to defend the case on the ground of Mitchell’s

and Dean’s involvement was petitioner’s. (Senate

150, 242-243, 247.)

The post-trial motion. On June 8, 1973, petitioner

filed a motion for a “writ of error coram nobis,”

asserting that he had newly discovered information ~

wrongfully withheld from him that deprived him of :

:

evidence that could have been used to prove his in-

nocence. Specifically, he claimed that he had been

lulled by the Department of Justice and White House

connections of his superiors into believing that any

action he took on their behalf would have the “sanc-

tion of legality” (A. 20).° While he admitted that he

was aware that Magruder had testified falsely at the

trial about the involvement of Mitchell and Dean, he

allegedly remained siient because his attorney had ~

advised him not to testify. He acknowledged that he ~

knew the general outline of an obstruction of justice

designed to cover-up the identity of persons respon-

;

sible for the break-in, including post arrest payments :

to defendants, but claimed that he was not fully q

aware of its extent (A. 17-18, 23-24, 39, 86). In ©

6“A” refers to the Appendix filed in the court of appeals. ;

7 He also stated that he did know of the existence of the é

White House Special Investigations Unit (the so-called ~

“Plumbers”) in which some of his co-defendants participated ‘

(A. 15), and claimed that his prosecution represented im-

permissible prosecutorial selectivity. Petitioner also filed a

motion, contending that he and his attorneys were victims of

illegal governmental electronic surveillances. The Government

8

subsequent supporting affidavits, petitioner alleged

that Alch had participated in White House efforts to

buy his silence and to offer him executive clemency

and had advised him that none of the defendants was

to testify at the trial (A. 39, 86). On November 7,

1973, the trial court, after hearing argument on

petitioner’s motion and on motions of five co-defend-

ants to withdraw their guilty pleas, denied him

relief.°

ARGUMENT

1. Petitioner’s initial contention is that the con-

spiracy by high government officials to obstruct the

investigation and prosecution of the Watergate

break-in deprived him of due process of law and

tainted his trial. Although the underpinnings of his

argument are unclear, he apparently contends that

the conspiracy—which included perjurious testimony

at his trial and efforts to secure his and his co-

defendants’ silence, for the purpose of concealing the

identity of others responsible for the planning of the

break-in and other illegal activities—prevented him

from asserting a defense that it was his “professed

belief that he was engaged in an intelligence gather-

ing operation authorized by the highest levels of gov-

ernment, including the Attorney General, to ascer-

tain planned illegal conduct” (Pet. 10-11).

conducted a search and filed affidavits denying that there had

been any surveillances of petitioner’s conversations.

* Petitioner’s counsel indicated that he thought an evi-

dentiary hearing might not be necessary if Senate testimony

could be made part of the record (Nov. 5 Tr. 95).

9

The simple answer to this argument—and the

answer that demonstrates that this case does not

present any substantial issue regarding the adminis-

tration of justice that call for resolution by this

Court—is that petitioner, fully aware of the basic

facts that he now would present as a defense, delib-

erately chose not to disclose those facts or press his

supposed defense at trial. As he concedes (Pet. 9),

he had been told prior to the break-in that Mitchell

and Dean had approved the operation. Moreover, he

was aware of the perjurious testimony and the pay-

ment of hush money. He himself had received $25,000

and proffers of executive clemency and other as-

sistance. By his own admission, however, the failure

to assert a defense of authorization was not due to

any pressure exerted on him, disloyalty of counsel,

or the imagined hopelessness of proving the involve-

ment of “higher-ups.” * McCord testified under oath

before the Senate Select Committee with the advice

of counsel (Senate 242-43):

Well, I had many conversations with Mr. Alch

about the facts in the case, and the other prin-

cipals involved and we decision of mine as to

when to come forward with the information

which I did as basically my decision and it was

a day at a time decision on my part as to when

® Petitioner asserts that he had “deep distrust” of White

House aides, the FBI, the prosecution and his own lawyers

(Pet. 12). He never explains, however, why he waited for

more than six weeks after his trial to disclose the facts within

his knowledge to the trial judge, instead of going to him dur-

ing the irial.

deresinetaataeieen snares

10

was the proper issuance time to tell the facts

on this case. * * * I think my decision has been

the right one.

Having deliberately by-passed the opportunity to

present his claims at trial, petitioner is not free to

press them either on appeal or by collateral attack.

See, e.g., Brady v. United States, 397 U.S. 746

(1970); United States v. Bridges, 432 F.2d 692

(D.C. Cir. 1970); Green v. United States, 256 F.2d

483, 484 (lst Cir.), cert. denied, 358 U.S. 854

(1958).

The principle thrust of petitioner’s contention

(Pet 13-20) rests on allegedly newly discovered evi-

dence—the conclusive evidence of the cover-up con-

spiracy that has come to light since petitioner’s trial.

He attempts to bolster this argument by relying on

Brady Vv. Maryland, 373 U.S. 83 (1963), asserting

that the prosecution should be charged with failure

to disclose the evidence at trial (Pet. 19)’° The court

of appeals discussed this issue at length, and we rely

primarily on the opinion below (Pet. App. 13a):

McCord’s failure to raise the defense of au-

thorization below is not excused by either the

existence of newly discovered evidence or by the

’ There is no basis as we discuss below, for concluding that

any of the “new” evidence is exculpatory of petitioner. More-

over, there is nothing in the record or in the petition which

supports the charge that the government—as distinguished

from those illegally participating in the cover-up conspiracy

—violated any duty of disclosure. Indeed, if petitioner had

disclosed the information in his possession, it could have

served as the key to opening up an earlier disclosure of the in-

formation upon which his present claim is based.

-

whe

11

efforts of some government officials to coerce

him to remain silent and plead guilty. Since the

only relevant factual issue is whether McCord

reasonably believed that he was acting pursuant

to the authorization of the Attorney General

or Counsel to the President, an issue which must

be largely determined by reference to facts in

McCord’s possession at the time of his actions,

newly discovered evidence could a fortiori have

only a tangential relation to this central issue.

The newly discovered evidence discussed above

does provide much more evidence that McCord

was reasonable in believing this his actions were

authorized but no more evidence that he actually

did believe that his actions were so authorized.

This newly discovered evidence is, thus, merely

cumulative to evidence that McCord possessed

at the time of the burglary and is not sufficient

by itself to create in either our minds or the

minds of the jury a reasonable doubt about Mc-

Cord’s guilt. Our finding on this point also dis-

poses of McCord’s collateral contention that his

failure to raise the defense below was excused

by the prosecution’s failure to disclose this

newly discovered evidence at the time of the

trial. (Footnotes omitted.)

Finally, it is well settled that neither newly dis-

covered evidence nor obstruction of justice at a trial

justifies a new trial unless there is some reasonable

likelihood that a new trial would result in an acquit-

tal. See, e.g., Giglio v. United States, 405 U.S. 150,

153-54 (1972); United States v. Lemonakis, 485

F.2d 941, 964 (D.C. Cir. 1973). There is no doubt

whatsoever about petitioner’s guilt or the outcome of

12

a new trial. If anything, the new evidence confirms

petitioner’s guilt. McCord was caught red-handed in

the Democratic National Committee offices and never

has denied that he was a principal operative in the

break-in or the electronic surveillance. Instead, in

a veiled way he refers to “authorization” at the high-

est levels of government. Significantly, however, he

did not allege below that he believed the operation

was lawful, that it had been approved by anyone

acting as a government official, or that it was under-

taken as a government operation or for a governmen-

tal purpose. In fact, when petitioner was asked the

direct question before the Senate Select Committee

whether at the time of the break-in he understood

it was illegal, he responded, after consulting with

counsel: “Yes, of course” (Senate 176).”

In brief, it was clear to petitioner at the time of

the break-in that the break-in was authorized and

engineered as a political espionage tactic without the

remotest connection to any governmental purpose.

Petitioner has acknowledged that the break-in was

1 Petitioner thus is left-with the defense that because he

acted pursuant to the directions of a government official,

whether or not the government official was acting within his

authority, and whether or not petitioner believed he was en-

gaged in a )2gal operation, he lacked the requisite criminal

intent. If tr at were true, the “mere fact” that a government

official parti:ipated in blatantly illegal conduct would suffice

to immunize all other participants from responsibility for

their action. Clearly, as decisions of this Court have firmly

held, that is not the law, either for government officials,

O’Shea V. Littleton, 414 U.S. 488 (1974), or for those who do

their bidding. Gravel v. United States, 408 U.S. 606 (1972).

See ERT MENU ERR PERE 6 OTRO TE REN FEI ER ERS

13

part of a larger plan for gathering “political intel-

ligence” (Senate 127-28, 203) and has testified to

related instances of politically motivated espionage,

including his own attempts to install eavesdropping

devices in Senator McGovern’s campaign headquar-

ters (Senate 153-54). Petitioner’s own admissions,

then, serve only to corroborate the evidence at trial

that he was fully aware that the break-in and elec-

tronic surveillance were part of a political operation

designed to monitor “all conversations involving po-

litical strategy and a personal nature” (Tr. 1031).

This clearly. belies any claim that he was engaged in

an operation “to ascertain planned illegal conduct” ”

or that there is any conceivable justification for his

conduct.

2. The principal claim of prosecutorial misconduct

rests on the assertion that the prosecutors knowingly

presented false testimony from witnesses Magruder

and Porter that no person higher up than Liddy was

involved in the break-in (Pet. 21-24). Porter, how-

ever, was not asked about the involvement of others

(Tr. 1423-1430B). And in offering the testimony of

* Petitioner suggests for the first time that he acted to

uncover alleged illegal activity based upon information that

the Cuban government was making contributions to the

Democratic National Committee (Pet. 8). Petitioner neither

alleged this in his motion or affidavits below nor testified to

this effect before the Senate Select Committee. As for the

claim that the operation was undertaken to discover planned

acts of violence directed against the re-election campaign of

the President, the defense of “duress” was advanced at trial

and properly rejected as a matter of law. See note 4, supra.

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14

Magruder, the prosecutors were neither trying to

hide the involvement of others nor deliberately offer-

ing false testimony. Contrary to petitioner’s asser-

tion, Hugh Sloan, the former treasurer of the Re-

Election Committee never “informed the prosecutor

of Magruder’s probable perjury at the trial” (Pet.

23). While Sloan did notify the prosecutors that

Magruder had asked him to underestimate the sums

given to Liddy,” Magruder’s trial testimony on this

matter was accurate and consistent with Sloan’s

(Tr. 1435-36). There is, we submit, no credible

evidence that the prosecutors knew, or had reason to

know, that it was sponsoring perjured testimony by

Magruder. This argument, as well as the implicit

claim that the prosecution knowingly sought to con-

ceal the involvement of others, is refuted by petition-

er’s own statement that the prosecutors wanted him

to turn state’s evidence (A.119).

The court below found “no support” for petition-

er’s “implied allegation” that he had been prejudiced

by the supposed misconduct (Pet. App. 23a). Al-

though Magruder in fact gave false testimony at the

trial, the testimony concealing the involvement of

others did not indicate in any way that petitioner

was guilty of burglary, electronic surveillance, or the

related offenses charged in the indictment. As we

discussed above, truthful disclosure of the involve-

13 Any discrepancy between Magruder’s grand jury testi-

mony and Sloan’s was known to the defense before Magruder’s

trial testimony, since the prosecutor provided petitioners with

copies of the grand jury testimony.

15

ment of higher-ups would not have tended to absolve

petitioner of his guilt.”

3. The court below properly concluded that peti-

tioner was not denied the effective assistance of coun-

sel. The argument that counsel did not “vigorously

assert all ethical defenses” (Pet. 28) ignores peti-

tioner’s unequivocal Senate testimony (Senate 242-

43). As the quotation at pp. 9-10, supra, indicates,

petitioner, after conversations with his attorney,

made his own decision when to reveal the basic in-

formation upon which he now says he would bottom

his defense.”

The present assertion that Alch attempted to

coerce petitioner into pleading guilty and not testify

at the trial (Pet. 30) is refuted by petitioner’s Sen-

ate testimony that Alch never urged him to plead

guilty or keep silent (Senate 150, 247). The dispute

* Other alleged misconduct referred to in the petition—

failure to recall petitioner before the grand jury after the

trial and failure to track down certain materials of Hunt

(Pet. 27-28)—obviously have no relevance to the determina-

tion of petitioner’s guilt at his trial.

** Alch testified before the Senate Committee that he told

petitioner that the crucial decision whether to testify could

only be made by petitioner and that petitioner ultimately de-

cided, without any reservations, not to testify (Senate 304).

It was at that point, according to Alch, that petitioner dis-

closed that Mitchell had approved the operation.

Alch also denied that he spoke to petitioner about executive

clemency and that he told petitioner that he would be hearing

from the White House (Senate 302-303). Alch further stated

that petitioner never had informed him that petitioner be-

lieved the Watergate operation was legal (Senate 296 ).

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about making a CIA defense was resolved before the

trial commenced in a conference with the court in

which Alch agreed not to press such a defense and

petitioner decided he would continue with Alch as

one of his attorneys (Jan. 3, 1973, Tr. 3-4). Finally,

as the court below found, the allegations that Alch

funnelled information about petitioner’s trial plans

to the White House (Pet. 34-38) do not establish a |

conflict of interest or disloyalty, but under the cir-

cumstances here merely indicate that the attorney

“was consulting with the persons who arguably au-

thorized the crime for which McCord was being

tried and was allegedly involved in the same con-

spiracy that McCord himself was involved in... .

McCord’s allegations thus reduce themselves to the

claim that his attorney violated his confidences; how-

ever; in the facts of this case, this is not evidence of

disloyalty. Even standing alone, such a violation

would not be a deprivation of Sixth Amendment

rights since McCord himself knew of these violations

at the time. . . .” (footnotes omitted, Pet. App. 31a-

32a).”

%* The fact that Alch agreed to produce electronic equip- |

ment to the prosecutor (the monitoring equipment, Pet, 32- |

33) did not enhance the chances of conviction since there

was incontrovertible evidence that petitioner participated in

the illegal break-in and electronic surveillance in the offices of

the Democratic National Committee and was arrested with

bugging equipment in his possession. Nor was there a breach

of the agreement against using this equipment as evidence at

trial. The letter, upon which petitioner relies, shows that

NETLOG EE LD ELSI ML DGLEN PEA LL LLIE ILO OE IOC AS ETO ON I OT _

17

Thus, contrary to petitioner’s assertion the deci-

sion below does not conflict with decisions of this

Court or other courts of appeal on the assistance of

counsel issue.” The court accepted petitioner’s pre-

mise “that disloyalty or conflict of interest may, if

substantial and proven, result in the denial of effec-

‘tive: assistance of counsel in controvention of the

Sixth Amendment” (Pet. App. 29a). See, e.g.,

Glasser v. United States, 315 U.S. 60 (1942). That

the court’s appraisal of the facts resulted in rejection

of the claim in the circumstances of this case does

not warrant review by this Court.” ,

4. Petitioner, although he did not press the claim

before the court of appeals, asserts that he was en-

trapped. It is ubvious from the circumstances of this

case that the relationship of petitioner aud the other

persons who were or had been government officials

only “the fact of delivery” from petitioner, not the equipment

itself, would not be used against petitioner (Pet, App. 37a).

** The court below followed the standard set forth in United

States v. DeCoster, 487 F.2d 1197, 1202 (1973), for adjudi-

cating claims of ineffective assistance of counsel: “a defend-

ant is entitled to the reasonably competent assistance of an

attorney acting as his diligent conscientious advocate.”

** Petitioner in his post trial motion also complained that his

attorney failed to cross-examine properly Magruder, Sloan

and Porter (A. 121). He now asserts, for the first time, that

he in fact urged his attorney to cross-examine Magruder on

two specific points about the involvement of others in the

Watergate operation (Pet. 29). This assertion, however, im-

plicity conflicts with his post-trial letter and his sworn

testimony that he waited for an appropriate time to open up

the involvement of others. In addition, as we argue above,

disclosure of the involvement could not have aided his defense.

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18

does not contain the elements of entrapment as that

defense has been developed in the federal courts. See

United States v. Russell, 411 U.S. 423 (1973), in

which this Court declined to enlarge the defense to

cover defendants who willingly participated in ven-

tures in which it might be said that the involvement

of government undercover agents was “excessive.”

As the court below concluded, albeit in the context

of another issue, “[t]he operative fact is that this

conspiracy, of which McCord was a part for at least

part of the time, was not designed so much to con-

vict private criminals as to prevent additional con-

victions. This then is not a case of the end of law

enforcement justifying the means, but of the end it-

self being, not law enforcement, but criminal activ-

ity.” (Pet. App. 26a-27a.)

5. On the basis of a claim that the instant case

is “the only case known to petitioner where an ia-

dividual has been convicted for electronic eaves-

dropping pursuant to authorization by the highest

law enforcement officials of this nation,” petitioner

argues that he has a defense based upon impermis-

sible prosecutorial selectivity (Pet. 24-26). This de-

fense, however, was not raised by pre-trial motion

and is untimely under Rule 12(b) (2), F.R.Cr.P.

See Davis v. United States, 411 U.S. 233 (1973);

United States v. Berrigan, 482 F.2d'171, 174-175

(3d Cir. 1973). Nor do petitioner’s complaints about

his attorney warrant relief from this waiver. ‘As we

have pointed out, supra, petitioner’s own testimony

shows that he, rather than his attorney, made the

1g Aa SOPOT LOL LOA LE LIA AID BLE GET De

19

decision to keep silent about the involvement of

Mitchell and Dean.

Moreover, on the merits, petitioner has no valid

defense on this ground. His claim of authorization

primarily rests upon an approval of electronic sur-

veillance plans against a political party by an official

about to become chairman of a rival political orga-

nization and carried out when tiffs person is merely

a former government official. A prosecution based

upon such “unique” and “bizarre” facts cannot be

fairly termed impermissibly selective. See United

States v. Berrigan, supra, 482 F.2d at 179. Beyond

that, petitioner does not suggest that his prosecution

was based upon an unjustifiable standard such as

race, religion or other arbitrary classification. See

Oyler v. Boyles, 368 U.S. 488, 456 (1962). He also

does not contend that he was singled out for prose-

cution because of his exercise of certain constitution-

ally protected rights. See United States v. Berrios,

501 F.2d 1207 (2d Cir. 1974). Indeed, if the Jnited

States Attorney had not sought an indictment in ‘his

case, he would have been condemned as aiding in an

effort to prevent the discovery of the Watergate con-

spiracy and would have been charged with derelic-

tion of his duty.

Finally, petitioner’s argument that the pardoning

of Richard Nixon furnishes a basis for relief from

his judgment of conviction rests upon a misunder-

standing of the nature of the power to pardon

granted by Article II, section 2, clause 1 of the Con-

stitution. The “very essence of the pardoning power

:

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;

20

is to treat each case individually. * * * Individual acts

of clemency inherently call for discriminating choices

because no two cases are the same.” Schick v. Reed,

No. 73-5677, decided December 23, 1974. Moreover,

even if this claim presented a substantial issue, it is

not ripe for resolution. It was not presented below,

and as the court concluded, “any legal questions that

' may arise from the pardon are not sufficiently

focused by the adversary process to justify appellate

+ consideration of their validity or substantially at this

_ time” (Pet. App. 27a, n.59).

¥

¢

f CONCLUSION

4 It is therefore respectfully submitted that the

3 petition for a writ of certiorari should be denied.

| HENRY S. RUTH, JR.,

2 Special Prosecutor,

‘ SIDNEY M. GLAZER,

L Attorney.

| March 1975

4

t U.S. Government printing orrice; 1975 571696 129

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