presentation of evidence to the grand jury are denied.
(6) Motion of Defendant Mitchell to dismiss Counts Four, Five and Six:
Counts four and five of the indictment charge defendant Mitchell with false declarations to a grand jury in violation of 18 U.S.C. § 1623. The charges stem from the defendant's appearances of September 14, 1972 and April 20, 1973. Count six charges defendant Mitchell with perjury before the Senate Select Committee on Presidential Campaign Activities during his testimony of July 10 and July 11, 1973 in violation of 18 U.S.C. § 1621.
Defendant Mitchell appeared before the grand jury in 1972 simply as a witness. Before his April 20, 1973 appearance, however, Mr. Mitchell was advised that he had become a target of the grand jury's investigation. On neither occasion did the defendant invoke his Fifth Amendment privilege, and when he objected to further appearances, the Special Prosecutor honored the objection. The Court perceives no violation of the defendant's constitutional rights arising out of these grand jury appearances.
Defendant Mitchell presses his argument more strenuously insofar as it relates to his Senate Committee testimony. He asserts that the Senate Committee's failure to withdraw its subpoena after an official request operated to violate principles of due process and fundamental fairness, particularly the right to stand mute and put the government to its burden of proving prima facie the charges against him, and the right to maintain his defense intact and unrevealed until the government sustains its burden. The fact remains, nevertheless, that no matter how difficult the choice, the defendant was not coerced into relinquishing his Fifth Amendment privilege. At any point in his testimony, defendant Mitchell could have exercised that privilege if he had so chosen. The fact that as a by-product of Mr. Mitchell's public testimony the government may have been introduced to his trial defense is without legal significance.
Defendant's allegations regarding coercion are inaccurate and his other allegations likewise do not require dismissal of the indictment. Cf. Gelbard v. United States, 408 U.S. 41, 92 S. Ct. 2357, 33 L. Ed. 2d 179 (1972). The motion to dismiss counts four, five and six is denied.
(7) Motions of Defendants Mitchell and Ehrlichman to dismiss Counts Three and Ten:
Defendants Mitchell and Ehrlichman are each charged with making false statements to Federal Bureau of Investigation agents in violation of 18 U.S.C. § 1001.
Defendants contend that although § 1001 of Title 18 would by its literal terms encompass the activity charged, the legislative history and judicial gloss on the statute make it applicable only to false statements initiated by persons affirmatively seeking to obtain some benefit from the government. Defendants place particular reliance on Friedman v. United States, 374 F.2d 363 (8th Cir. 1967) and United States v. Lambert, 470 F.2d 354 (5th Cir. 1972) which remove all statements made to FBI agents, whether affirmative statements or exculpatory responses, from the purview of § 1001.
In the Court's view, the defendants' interpretation of § 1001 is unduly restricted and contrary to Supreme Court holdings and what appears to be the majority rule in application of the statute. In United States v. Gilliland, 312 U.S. 86, 61 S. Ct. 518, 85 L. Ed. 598 (1941), the Supreme Court traced the history of § 1001 and rejected the argument made here that the statute as amended refers only to a "false bill" situation, that is, false representations made in the process of obtaining government benefits. The offense there concerned an attempt to avoid a regulatory scheme, and the Court held, "The amendment indicated the congressional intent to protect the authorized functions of governmental agencies from the perversion which might result from the deceptive practices described. We see no reason why this apparent intention should be frustrated by construction." 312 U.S. at 93, 61 S. Ct. at 522. See also, United States v. Beacon Brass Co., 344 U.S. 43, 73 S. Ct. 77, 97 L. Ed. 61 (1952); Bryson v. United States, 396 U.S. 64, 90 S. Ct. 355, 24 L. Ed. 2d 264 (1969), and United States v. Knox, 396 U.S. 77, 90 S. Ct. 363, 24 L. Ed. 2d 275 (1969).
The Friedman case, supra, cited by defendants is apparently the law in the Eighth Circuit, but the Lambert case, supra, in the Fifth Circuit, as the Court is informed by the Special Prosecutor, is awaiting a rehearing en banc pursuant to the court's own motion. In the Court's opinion, given the consistently broad interpretations of § 1001 by the Supreme Court, the better reasoned position is that of the Second Circuit as expressed in United States v. Adler, 380 F.2d 917 (2nd Cir.), cert. denied 389 U.S. 1006, 88 S. Ct. 561, 19 L. Ed. 2d 602 (1967), where statements to FBI agents were expressly held to be covered by the statute. Consistent with and supportive of this interpretation are Bryson v. United States, supra, 396 U.S. 64, 90 S. Ct. 355, 24 L. Ed. 2d 264 (1969); United States v. Knox, supra, 396 U.S. 77, 90 S. Ct. 363, 24 L. Ed. 2d 275 (1969); United States v. Parten, 462 F.2d 430 (5th Cir. 1972); United States v. Isaacs, 493 F.2d 1124 (7th Cir. 1974) and United States v. Van Valkenburg, 157 F. Supp. 599 (D.Alaska 1958). Furthermore, sound policy considerations favoring responsible criminal investigations and prosecutions militate against narrowing the section's applicability to exclude the FBI. "Our legal system provides methods for challenging the Government's right to ask questions -- lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood." Bryson v. United States, supra, 396 U.S. at 72, 90 S. Ct. at 360.
The motions to dismiss counts three and ten are denied.
(8) Motion of Defendant Haldeman to dismiss for alleged failure to comply with the "Gaither rule":
Defendant Haldeman argues that the government has not shown compliance with the rule enunciated by the Court of Appeals in Gaither v. United States, 134 U.S.App.D.C. 154, 413 F.2d 1061 (1969). It follows, he contends, that the indictment should be dismissed or that a hearing should be set to determine compliance with Gaither.
The Court of Appeals in Gaither ruled that at least twelve grand jurors had to pass upon and agree to the actual terms of an indictment, and that where this was not done, as in the prior practice within the District of Columbia where only the foreman reviewed the actual indictment, the indictment would be dismissed. The court made its ruling prospective, and initially devised a hearing procedure for the approximately 1,100 cases pending at the time of the decision whereby indicted defendants "similarly situated" to defendant Gaither could determine whether there existed a fatal variance between the indictment seen only by the foreman and the evidence presented to the grand jury as a whole. Gaither v. United States, supra, 413 F.2d at 1081-1084. This program, however, was later abandoned, and the rule was made strictly prospective. Id. Thus, the " Gaither hearing," intended to be a temporary measure, was abolished almost before it began.
Here, as may be determined from the affidavit of Assistant Special Prosecutor Richard Ben-Veniste filed June 5, 1974, the grand jury complied with Gaither. There is no basis for a hearing or dismissal.
Counsel for defendant Haldeman has moved by letter dated June 20, 1974 to examine Mr. Ben-Veniste on the stand pursuant to what he misconstrued as the Court's suggestion. Having stated that no hearing is necessary or appropriate, the Court denies the motion.
The motion to dismiss for alleged failure to comply with the " Gaither rule" is denied.
(9) Motion of defendant Ehrlichman to dismiss for alleged noncompliance with 28 U.S.C. § 1861 et seq.:
Defendant Ehrlichman moves to dismiss the indictment on the ground that the grand jurors who returned the instant indictment were not selected in accordance with law. Defendant Ehrlichman's central complaint is that the juror wheel is composed exclusively from the voter registration list maintained in the District of Columbia. He argues that the voter registration list may not be properly representative of the community as regards categories of race, economic status or age.
Defendant's motion is defective on two counts. In the first instance, it is not accompanied by "a sworn statement of facts which, if true, would constitute a substantial failure to comply with the provisions of this title . . . ." See 28 U.S.C. § 1867(d, e). Secondly, the defendant has failed to demonstrate that the unsupplemented use of voter registration lists produces non-representative jury panels. The Jury Commission's questionnaires would indicate any variance between the registration list and the District of Columbia populace and are available to the defendant. See 28 U.S.C. § 1868. Nevertheless, he has not made a showing that unsupplemented voter registration lists are non-representative. Necessary supplementation of such lists is the exception, and absent a showing of deficiency, an indictment should not be dismissed where the approved jury selection process was followed. See United States v. King, 492 F.2d 895 (8th Cir. 1974); United States v. Dellinger, 472 F.2d 340 (7th Cir. 1972), cert. denied 410 U.S. 970, 93 S. Ct. 1443, 35 L. Ed. 2d 706 (1973); United States v. Bennett, 445 F.2d 638 (9th Cir. 1971), cert. denied 404 U.S. 1023, 92 S. Ct. 700, 30 L. Ed. 2d 673 (1972); Report on Jury Selection, 58 F.R.D. 501, 505-06 (1973).
The motion to dismiss for alleged noncompliance with 28 U.S.C. § 1861 et seq. is denied.
(10) Motions of defendants Ehrlichman and Strachan to dismiss counts based on 18 U.S.C. § 1623:
Defendants Ehrlichman and Strachan assert that 18 U.S.C. § 1623 is unconstitutional since (1) to avail himself of the statute's recantation provision, a defendant would necessarily incriminate himself under 18 U.S.C. § 1621 (perjury statute), and (2) the section eliminates the "two witness rule" traditional for perjury trials. As noted by Judge Gesell in United States v. Ehrlichman, et al., CR 74-116 (D.D.C.) in his May 21, 1974 Memorandum regarding the first point, § 1623 does not force a defendant to make incriminating statements.
Assuming for the moment that defendant violated § 1623(a), he was not required to recant nor was his penalty increased by failing to do so. He had already committed the complete offense by making the alleged false statement. Thereafter, he freely elected not to perform the acts which -- under his interpretation of the statute -- would have gained him immunity under § 1623 at the cost of an increased likelihood of conviction under § 1621. The recantation provision is not unconstitutional simply because it grants less than total use immunity.
* * *