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UNITED STATES v. MITCHELL

July 9, 1974

UNITED STATES of America
v.
John N. MITCHELL et al.



The opinion of the court was delivered by: SIRICA

 SIRICA, District Judge.

 I. MOTIONS TO DISMISS

 (1) Motion to dismiss for the alleged unlawful extension of the grand jury term:

 Defendants in this motion argue that Congress was without authority to extend the term of the June 5, 1972 grand jury by the simple enactment of a statute, Public Law 93-172, 87 Stat. 691 (November 30, 1973). Pursuant to Rule 6(g) of the Federal Rules of Criminal Procedure, the June 5, 1972 grand jury that returned the indictment herein, would have expired on December 4, 1973. Prior to that deadline, however, Congress enacted the above-referenced law extending the grand jury term to June 4, 1974 subject to another six-month extension. It was during this initial extension that, on March 1, 1974, the instant indictment was returned.

 Defendants contend that Congress' 18 U.S.C. § 3771 delegation of power to the Supreme Court to prescribe rules of criminal procedure left the Congress without authority to amend or modify any of the rules so promulgated by the Court once accepted.

 The Supreme Court's power to prescribe rules of procedure exists only in the absence of Congressional enactments. See Palermo v. United States, 360 U.S. 343, 353, n. 11, 79 S. Ct. 1217, 3 L. Ed. 2d 1287 (1959). The Court can discern nothing that restricts the power of Congress to repeal, amend, or supersede its delegation of authority under 18 U.S.C. § 3771 or the rules of procedure themselves. The delegation under § 3771 was not so extensive and final that Congress must either revoke the section or wait for the Supreme Court to propose changes before it can modify the federal rules. Changes may be effected at any time by statute. See, Hawkins v. United States, 358 U.S. 74, 78, 79 S. Ct. 136, 3 L. Ed. 2d 125 (1958); Government of Virgin Islands v. Parrott, 476 F.2d 1058 (3rd Cir.), cert. denied, 414 U.S. 871, 94 S. Ct. 97, 38 L. Ed. 2d 90 (1973); United States v. Berrigan, 482 F.2d 171, 176 (3rd Cir. 1973); United States v. Marrero, 450 F.2d 373 (2nd Cir. 1971), cert. denied, 405 U.S. 933, 92 S. Ct. 991, 30 L. Ed. 2d 808 (1972); United States v. Isaacs, 351 F. Supp. 1323, 1328 (N.D.Ill.1972), aff'd 493 F.2d 1124 (7th Cir. 1974).

 The motion to dismiss for alleged unlawful extension of the grand jury is denied.

 (2) Motions to dismiss because of the presence of allegedly unauthorized persons in the grand jury room:

 Defendants move to dismiss the indictment on the ground that during portions of the grand jury proceedings that led to this indictment, an unauthorized person was present in the grand jury room. The basis for this claim is that James F. Neal, Special Assistant to the Special Prosecutor, did not file the required letter of appointment and oath with the Clerk of the Court prior to his initial appearance before the grand jury, and that Mr. Neal allegedly violated federal conflict of interest statutes during his prior tenure with the Watergate Special Prosecution Force. Additionally, defendant Strachan asserts that the verbatim publication of his grand jury testimony in April, 1973 in the Washington Post indicates the "actual or constructive" presence of an unauthorized person during his appearance before the grand jury.

 Mr. Neal's participation in the grand jury investigation is also attacked on the ground that upon becoming a member of the Special Prosecution Force he did not terminate his law firm practice, and has thereby violated the conflict of interest provisions of 18 U.S.C. § 203. Even assuming a conflict of interest situation however, it is admitted that Mr. Neal did not serve more than 60 days prior to the return of the indictment. He thus qualifies for the exemption proviso of § 203. Furthermore, the copies of Attorney General Richardson's letter and opinion and the memorandum prepared by his office which are filed in the record show that the possible conflict of interest problem was carefully considered by the Department of Justice and found to be nonexistent. Though not binding on the Court, this determination is equally if not more persuasive than the defendants' contention.

 The claim of "actual or constructive" presence of an unauthorized person is without substance.

 The motions to dismiss based on allegations that an unauthorized person or persons were present in the grand jury room are denied.

 (3) Motions to dismiss for alleged multiplicity and duplicity:

 Several defendants maintain that count one of the indictment alleges separate and distinct conspiracies. A review of the indictment, however, suggests that the charge, rather than citing several conspiracies, alleges a single continuous conspiracy to obstruct justice and defraud the United States whose objects were numerous and varied extending over some period of time. Further, an indictment that charges in a single count both conspiracy to defraud and conspiracy to commit offenses is not duplicitous, since "neither a multiplicity of objects nor a multiplicity of means converts a single conspiracy into more than one offense." May v. United States, 84 U.S.App.D.C. 233, 175 F.2d 994, 1002, cert. denied 338 U.S. 830, 70 S. Ct. 58, 94 L. Ed. 505 (1949); United States v. Manton, 107 F.2d 834, 838 (2nd Cir. 1939), cert. denied 309 U.S. 664, 60 S. Ct. 590, 84 L. Ed. 1012 (1940).

 The argument is also made that the indictment is multiplicitous and should be dismissed since it spreads one offense over several separate and distinct counts. While it is true that the twelve substantive offenses charged are among the objects of the alleged conspiracy, it must be recognized that a conspiracy to commit an offense and the actual commission of that offense are separate and distinct crimes. Pereira v. United States, 347 U.S. 1, 74 S. Ct. 358, 98 L. Ed. 435 (1954); United States v. Rabinowich, 238 U.S. 78, 35 S. Ct. 682, 59 L. Ed. 1211 (1915). The conspiracy count and substantive counts will require different proof. Nor does the joinder of conspiracy and substantive allegations subject defendants to double jeopardy in violation of the Fifth Amendment. Such offenses are factually and legally distinguishable.

 The motions to dismiss based on alleged multiplicity and duplicity are denied.

 (4) Motions to dismiss based on alleged insufficiency of counts:

 It is urged that count one fails to state facts sufficient to constitute an offense. The allegations of count one, however, meet all the elements in a conspiracy offense: (1) it alleges an agreement, (2) to commit an offense against or defraud the United States, and (3) alleges numerous overt acts in furtherance of the conspiracy. See United States v. Offutt, 75 U.S.App.D.C. 344, 127 F.2d 336, 338 (1942). The fact that these overt acts may not of themselves constitute criminal conduct as asserted by defendant Strachan is immaterial since such acts need not be crimes. The requirement is that they have been done in furtherance of the conspiracy and its objects. See Yates v. United States, 354 U.S. 298, 334, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957).

 Count two is attacked as (1) failing to allege facts sufficient to state an offense, (2) failing to apprise defendants of the charge against them, and (3) resting on an unconstitutionally vague statute. The indictment overcomes the first two of these objections in that it tracks the language of the statute allegedly violated, 18 U.S.C. § 1503, and provides sufficient details, including dates and actions, to apprise the defendants of the charges against them. The statute itself, by incorporating the word "corruptly," does not thereby suffer from unconstitutional vagueness. See Anderson v. United States, 215 F.2d 84 (6th Cir.) cert. denied sub nom., Lewis v. United States, 348 U.S. 888, 75 S. Ct. 208, 99 L. Ed. 698 (1954).

 The sufficiency of counts that allege violations of 18 U.S.C. § 1621 and § 1623 is also attacked by defendants. Each of these counts alleges all essential elements of the offenses charged: (1) that the defendant had duly taken an oath to testify truthfully, (2) that the defendant was testifying before a duly empanelled grand jury of the United States investigating possible violations of federal law or before a duly authorized Committee of the Senate conducting official hearings, (3) that the defendant knowingly made false declarations to the grand jury and stated matters which he did not believe to be true before the Senate Committee, and (4) that the defendant's false declarations and statements were material to the grand jury's investigation and to the Senate Committee's hearings. In addition, each count sets forth the exact testimony alleged to be false and the context in which it was given.

 The motions to dismiss based on the alleged insufficiency of the counts are denied.

 (5) Motions to dismiss for alleged undue influence upon and/or selective presentation of evidence to the grand jury:

 Defendants urge in several motions and in a supplemental memorandum filed on June 19, 1974, by defendant Mardian, that the presentation of summarized grand jury testimony to the grand jurors requires either dismissal or comparison of the summaries to related grand jury transcripts to assess their accuracy. The Special Prosecutor has stated that such summaries were prepared but that they were never made available in written form to the grand jury. As defendant Mardian points out, it is unclear whether any summaries were read to the jurors. It is clear nonetheless, that the grand jurors had available to them at all times the actual transcripts of testimony given during the nearly two years of their investigation. Additionally, there is nothing to indicate that summaries were prepared with any intent of influencing the grand jury. In these circumstances, even assuming that the jurors heard a summary or summaries, the Court finds no basis for challenging an indictment valid on its face. See Lawn v. United States, 355 U.S. 339, 348-50, 78 S. Ct. 311, 2 L. Ed. 2d 321 (1958) and Costello v. United States, 350 U.S. 359, 363-64, 76 S. Ct. 406, 100 L. Ed. 397 (1956).

 The further suggestion of defendants that the indictment ought to be dismissed because at least certain of the allegations "do not appear to be supported by the public testimony . . ." (Defendant Haldeman's Motion to Dismiss, p. 16), is wholly without merit.

 The motions to dismiss for alleged undue influence upon and/or selective 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 ...


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