Justia Federal District Court Opinions

Dissenting opinion filed by MacKINNON, Circuit Judge.

PER CURIAM:1

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 unprecedented 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 staff; John D. Ehrlichman, once Assistant for Domestic Affairs to the President; Charles W. Colson, former Special 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.² The counts of the indictment embraced conspiracy, 18 U.S.C. § 371 (1970), obstruction of justice, id. § 1503, and various instances of false statements made to the Federal Bureau of Investigation (FBI), id. § 1001, to the grand jury, id. § 1623, and to the Senate Select Committee on Presidential Campaign Activities, id. § 1621.³ J.A. 65-112.

Five defendants ultimately went to trial together before 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.⁴ 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 obstruction of justice as well as all the individual perjury counts submitted.⁵ Sentences of imprisonment were imposed,⁶ and those convicted have appealed. We deal in the instant appeals only with the convictions of Haldeman, Ehrlichman, and Mitchell.⁷ We affirm.

Evidence at trial⁸ consisted of both direct testimony and actual tape recordings of key conversations of the co-conspirators. It established a wide-ranging conspiracy 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.

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 entry on the telephone of the DNC chairman; these orders had come after high officials at CRP expressed dissatisfaction with the information theretofore produced by the expensive Gemstone.⁹ Tr. 2649, 4143-4147, 4519-4521.

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 gathering political intelligence and for countering demonstrations. Tr. 2625-2628, 4507. That expectation was abundantly fulfilled. Collaborating with E. Howard Hunt, Jr., a former CIA agent whom Liddy knew well from previous ventures undertaken at White House behest,¹⁰ 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 attended 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.¹¹ At these first meetings Liddy failed to win approval. Mitchell indicating that the original million-dollar budget had to be scaled down.¹² 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 Gemstone in a meeting attended only by Mitchell, Magruder, and Fred LaRue, a close personal friend to Mitchell then serving as a top campaign aide.¹³ 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.

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 appearance of any link between CRP and the burglars, Mitchell, Mardian, LaRue, and Magruder met and decided to contact the new Attorney 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.

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 Haldeman 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 Gemstone 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,¹⁴ Magruder asked Mitchell what to do with the papers. Mitchell suggested that he "have a fire," and he did destroying the Gemstone 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 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 assurance 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), whereupon Ehrlichman suggested to Dean that he shred some and "deep six" the rest. Dean refused, fearing that too many people White House employees 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.¹⁵ Tr. 2696-2708, 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 placing 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 participated earlier in several "seamy things" for the White House, as he once described them. Tr. 3088. For example, as members of the White House Special Investigation Unit,¹⁶ 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.¹⁷ 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 of hush money to those indicted and later convicted for the burglary.

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 delivered to Liddy for protection of "surrogate speakers"¹⁸ 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 indicated 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. Magruder 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 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 related solely to the new election law. Tr. 2824-2829, 4612-4616.

Mitchell and Ehrlichman, meantime, were being careful 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 intelligence 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).

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 Magruder 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 unsuccessful. 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 Finance 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."¹⁹ 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 responsible 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 indictments 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.

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. 35B, Tape Tr. 642-658. Dean made a copy of the tape and took it to Camp David, Maryland, the presidential retreat, 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 impress 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 vanished. 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 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"²⁰), Mitchell urged that the same veiled assurances of clemency be extended to him. Ehrlichman agreed, and assurances were delivered to McCord to no avail, it later developed. Tr. 2992-3001, 6518-6520.

The greatest apparent threat to the conspirators' plans lay in the impending hearings of the Senate Select Committee 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 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."²¹ Nixon returned to the Hunt demand several times during the ensuing conversation, and he continued to mention it after Haldeman joined the discussion. Each 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 demurred. 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 at 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 general and would indicate that no one from the White House was involved. They might deliver it to the Senate Committee, 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.²² Tr. 3213-3221, Govt. Ex. 16, Tape Tr. 273-287.

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 public at the sentencing hearing that day. Tr. 3253-3254, 3259-3262. Shortly thereafter Magruder, Dean, and LaRue began to talk to the prosecutors. Tr. 3277-3280, 4639-4643, 6732-6733.

Throughout the month of April 1973 Haldeman, Ehrlichman, and Nixon met frequently at the White House trying to decide how to respond to the new developments.²³ 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. Haldeman, after spending a few hours reviewing the possibilities, reported that this scenario "works out pretty well."²⁴ 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.

This scenario also dealt tentatively with the second problem explaining the hush money. They would state that the money was delivered for humanitarian purposes²⁵ 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 carried 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 discussed 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."²⁶ 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 charging 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 generally 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, advanced 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 confession 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 denied that there was any mention of destroying documents at the meeting he held that evening with Magruder, Mardian, 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.

The unveiling of the conspiracy which is the central element of this case received extraordinarily heavy coverage 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 unrelated to the Watergate break-in. Appellants contend that this pretrial publicity was so pervasive and so harmful 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. Alternatively, they contend that the voir dire of veniremen²⁷ conducted by the District Court was insufficiently probing to assure empaneling of an impartial jury.²⁸

A. The Motions for Continuance or Change of Venue

It is fundamental that "the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). To be "indifferent" a juror need not be ignorant:

It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case 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 opinion as to the merits of the case. This is particularly true in criminal cases. To hold that the mere existence 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, 81 S.Ct. at 1642 (emphasis added). Accord, Murphy v. Florida, 421 U.S. 794, 799-800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975).

Irvin establishes "a common-sense standard" of juror qualification. United States v. Caldwell, 178 U.S.App.D.C. 20, 33, 543 F.2d 1333, 1346 (1974), cert. denied, 423 U.S. 1087, 96 S.Ct. 877, 47 L.Ed.2d 97 (1976). In keeping with that approach, a defendant who claims he was denied a fair trial because the jury was not sufficiently "indifferent" generally 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, 76 S.Ct. 965, 970, 100 L.Ed. 1331 (1956), quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942).²⁹ This demonstration can be made only by reference to the voir dire. In "extreme circumstances," 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, 423 U.S. 888, 96 S.Ct. 182, 46 L.Ed.2d 119 (April 5, 1976).³⁰ Appellants urge that this exception applies to their case and that the District Court committed reversible error by denying their pre-voir dire motions³¹ for a continuance of a change of venue.

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, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).³² The defendant in Rideau was filmed making an in-custody confession to the bank robbery, kidnapping, and murder for which he was convicted. That film was then broadcast three times to large audiences in Calcasieu Parish, whose total population was 150,000. The Court concluded, without examining the voir dire 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 conclusion cannot be avoided that this spectacle (the filmed confession), to the tens of thousands of people who saw and heard it, in a very real sense was Rideau's trial at which he pleaded guilty to murder. Any subsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality.

Id. at 726, 83 S.Ct. at 1419 (emphasis in original).

" A confession or statement against interest is the paradigm" of " facts that strongly implicate an accused * * *." Nebraska Press Ass'n v. Stuart, 423 U.S. 1327, 1332-1333, 96 S.Ct. 251, 255, 46 L.Ed.2d 237 (1975) (Blackmun, Circuit Justice). We have carefully reviewed the "Watergate" articles submitted by appellants, and we find that the pretrial publicity in this case, although massive, was neither as inherently prejudicial nor as unforgettable as the spectacle of Rideau's dramatically staged and broadcast confession. It is true that some of the pieces contained in the extensive collection of articles gathered by appellants are hostile in tone and accusatory in content. The overwhelming bulk of the material submitted, however, consists of straightforward, unemotional factual accounts³³ of events and of the progress of official and unofficial investigations.³⁴ 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 evidence 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 attempting selection of a jury.³⁵

The federal courts can, of course, establish more rigorous standards for their own governance than those minimum 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, 96 S.Ct. 1017, 47 L.Ed.2d 258 (1976); Murphy v. Florida, supra, 421 U.S. at 797-798; id. at 804, 95 S.Ct. 2031 (Burger, C. J., concurring); cf. United States v. Williams, 523 F.2d 1203, 1209 n.11 (5th Cir. 1975). We believe, however, that it is inappropriate to attempt to formulate a supervisory power standard for concluding that a fair jury cannot be selected. Except in the most extreme cases, like Rideau,³⁶ such a pre-voir dire conclusion must depend solely on the subjective reaction of the judge who reaches it.³⁷ Invocation 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 of litigating controversial cases.³⁸ Moreover, this uncertainty 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,³⁹ a supervisory fair trial standard, however stated, could not stimulate the court to additional vigilance in protecting the defendant's right to be tried on the evidence presented in court.⁴⁰ And if an impartial jury actually cannot be selected, that fact should become evident at the voir dire. The defendant will then be entitled to any actions necessary 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, 79 S.Ct. 1171, 1173, 3 L.Ed.2d 1250 (1959).⁴¹

For these reasons we hold that the District Court was correct to follow this circuit's well established procedure by refusing appellants' pre-voir dire requests for a continuance⁴² or a change of venue.⁴³ See, e. g., United States v. Wilkerson, 175 U.S.App.D.C. 383, 384, 536 F.2d 410, 411 (1976), (per curiam ); United States v. Caldwell, supra, 178 U.S.App.D.C. at 29, 543 F.2d at 1342; Jones v. Gasch, 131 U.S.App.D.C. 254, 261, 404 F.2d 1231, 1238 (1967), cert. denied, 390 U.S. 1029, 88 S.Ct. 1414, 20 L.Ed.2d 286 (1968). We therefore turn to an examination of the voir dire itself.

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 conduct 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 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 accused 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, 178 U.S.App.D.C. at 32, 543 F.2d at 1345; 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, 93 S.Ct. 455, 34 L.Ed.2d 307 (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 recorded 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 questions concerning their relationships with any of the individuals or organizations involved in the case. Eighty-five veniremen remained following those questions. After questioning two individually,⁴⁴ the trial judge had the 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 affecting credibility of witnesses, and other subjects unrelated to pretrial publicity. Finally, the trial court individually questioned 77 veniremen on matters such as their employment, attitudes toward the defendants, and exposure to pretrial publicity.⁴⁵ This individual questioning, 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.⁴⁶ Nevertheless, the questioning did follow a basic pattern. After some personal inquiries relating to employment history and political activity, the court focused on the venireman's exposure to pretrial publicity and possible biases. Before the publicity was mentioned the venireman was asked if he believed that any defendant was probably guilty. He was then asked if he had heard of the case and, if so, whether anything he had heard or read about the case stood out in his mind. The next questions asked whether the venireman had seen the defendants or their lawyers in the newspapers or on television and whether he remembered anything in particular about them. Subsequently the court determined which newspapers and magazines the venireman read and with what degree of regularity; which television news programs he watched; whether he had followed the legislative inquiries related to Watergate or read any of the books or other lengthy pieces concerning Watergate, including the presidential tape transcripts; whether he had followed Watergate closely or casually; and whether (and how recently) he had discussed the case.

After determining the venireman's degree of interest in and exposure to the case, the court inquired whether he had formed or expressed an opinion of the guilt or innocence of any defendant. In addition, the judge determined whether the venireman knew of Ehrlichman's trial and conviction in the " plumbers" case,⁴⁷ whether he knew of the pardon of former President Nixon, whether he thought it unfair to prosecute appellants in light of the pardon, whether the pardon caused the venireman to 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 attempted 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 questioning was completed, the venireman was excused while the court considered counsel's objections and suggestions for additional inquiries. This step often resulted in recall of the venireman for more questioning.

Appellants claim that this interrogation was inadequate. Their principal complaint⁴⁸ is that the voir dire, which they characterize as perfunctory, did not include "content" questions.⁴⁹ A "content" question, as appellants' 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 remember about this case? What, if anything, do you remember about any of these defendants?" Voirdire (sic) Questions to Individual Jurors, Requested by Defendant Haldeman, J.A. 431. Appellant Ehrlichman suggested similar, although more elaborate, questions.⁵⁰ According to appellants, these questions were necessary to provide an objective basis for evaluating a venireman's impartiality.⁵¹

Following an objection by the Government, the District Court decided not to ask these questions. The positions 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 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 television.

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 question 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 impartial 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.⁵² Cf. American Bar Ass'n Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press § 3.4(b) (approved draft 1968) (hereinafter ABA Standards ). Rather, they simply wished to learn how much the veniremen recalled from their exposure to the publicity, regardless of whether that exposure 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 181 U.S.App.D.C. at ----, 559 F.2d at 60, supra. The District Court therefore properly concluded that the information appellants sought, although undoubtedly of interest to them, did not warrant the extraordinarily prolonged voir dire that would have been necessary to obtain it.⁵³

We also find unconvincing appellants' attempts to identify legal support for their claimed right to ask "content" questions. Appellants rely principally on Section 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, 93 S.Ct. 1443, 35 L.Ed.2d 706 (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, 93 S.Ct. 923, 34 L.Ed.2d 693 (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 * * *." (Emphasis 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 recollection 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 testimony as to his state of mind are relevant to the determination of acceptability."⁵⁴ (Emphasis added.)

Both of the cases relied on by appellants refer to the ABA Standards. In Silverthorne the voir dire relating to pretrial publicity was both minimal⁵⁵ and addressed to the veniremen as a group. There was no private, individual questioning of each member of the venire. The Ninth Circuit, citing Section 3.4(a) and (b), held that the questioning was inadequate because "(t) he 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 court 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 that 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 insufficient. 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 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,427 U.S. 539, 565, 96 S.Ct. 2791, 2805, 49 L.Ed.2d 683 (June 30, 1976), "(P)retrial publicity, even if pervasive and concentrated, cannot be regarded as leading automatically and in every kind of criminal case to an unfair trial." In this case, moreover, it is clear 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)oir dire 'is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion.' (Quoting Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 39 L.Ed. 1033 (1895); other citations omitted.) This is so because the '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 (83 S.Ct. 1417, 1423, 10 L.Ed.2d 663) (1963) (Clark, J., dissenting)." Ristiano v. Ross, supra, 424 U.S. at 594-595, 96 S.Ct. 1020, 47 L.Ed.2d 258. After diligently studying the voluminous transcript of the voir dire in this case, we are convinced that the District Court exercised its discretion judiciously 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 capable of basing its verdict solely on the evidence introduced at trial.⁵⁶ Appellants appear to concede this ultimate conclusion, for they never suggest that the jury was actually prejudiced against them⁵⁷ 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.⁵⁸ Accordingly, we find no reversible error associated with the impaneling of the jury.

Appellant Ehrlichman contends that his motion for severance under Rule 14, filed May 1, 1974, was improperly denied. In his motion he claimed that severance was required because his co-defendants would assert defenses inconsistent with, and hostile to, his own. As he puts it, Mitchell and Haldeman asserted that their contacts with then President Nixon were lawful and proper in every respect, while "(i)n 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."⁵⁹

While there are situations in which inconsistent defenses may support a motion for severance, the doctrine is a limited one. As set forth in Rhone v. United States, 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 irreconcilable 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 reviewable 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 misled by former President Nixon does not meet this standard. The defenses of the co-defendants were simply not at the requisite level of conflict. The jury could have accepted or rejected both. "(T)he mere presence 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, 92 S.Ct. 327, 30 L.Ed.2d 275 (1971).⁶⁰ Here the contention is further diluted by the circumstance that appellant is not claiming prejudice because other defendants were inculpating him, as in the Valdes' case⁶¹ Ehrlichman relies on, but rather is asserting that he lacks the knowledge and blame that may be imputable 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 representatives on June 23, 1972. Each contended his purpose 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 investigation because, in Haldeman's words, "the FBI is not under control."⁶² Haldeman attempted to explain that the prior conversation was not for the purpose of enlisting the CIA to stifle the FBI's Watergate investigation. Whether successful or not, this did not cut across Ehrlichman's defense. Ehrlichman contended that 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 the 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 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 defendant involved in a relatively "inconsequential part of the trial."⁶³ But here the evidence against Ehrlichman, while perhaps not as compelling in certain details as with respect 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 entire conspiracy, and would not have been restricted to the limited involvement of the severed defendant.⁶⁴ Appellant 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 accusations emanating from the defense table * * * ."⁶⁵ We do not here discern anything like the kind of unfairness necessary to overcome a joint trial of defendants shown by substantial, independent evidence to be involved in the conspiracy for which they have been jointly indicted.

Months ahead of trial, Ehrlichman and other defendants 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 congressional 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 evidence 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 opportunity 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.⁶⁶

Ehrlichman, however, continued to press his motion, which the District Court eventually denied.⁶⁷ He also procured the issuance of two subpoenas duces tecum,⁶⁸ which were promptly quashed.⁶⁹ 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, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1960),⁷⁰ is that the Special Prosecutor was constitutionally 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,⁷¹ nor are we persuaded that Ehrlichman was deprived of anything to which he was entitled.

Our attention has not been directed to any arguably helpful information possessed by the Special Prosecutor,⁷² or any investigative unit under his control,⁷³ or any other agency allied with the prosecution,⁷⁴ which was not made available. Nor does Ehrlichman refer us to any particular item allegedly unproduced other than files generated at the White House⁷⁵ and testimony taken by a congressional subcommittee in executive session.⁷⁶ As to these materials, we find no cause for reversal.⁷⁷

Ehrlichman's demand for the White House files fell far short of legal requirements.⁷⁸ Criminal Rule 16(b) at that time⁷⁹ 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."⁸⁰ Criminal Rule 17(c),⁸¹ which is not a discovery device,⁸² confines a subpoena duces tecum to admissible evidence,⁸³ authorizes the quashing of the subpoena if it is "unreasonable or oppressive,"⁸⁴ and indulges pretrial inspection⁸⁵ of subpoenaed papers only upon a showing

(1) that the documents are evidentiary and relevant; (2) that they are not otherwise procurable reasonably in advance of trial by exercise of due diligence; (3) that the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain 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."⁸⁶

Ehrlichman's discovery motion, aptly described by the District Court as a "sweeping and broadly phrased" endeavor to secure "a tremendous array of materials,"⁸⁷ ignored Rule 16(b)'s admonition of reasonableness.⁸⁸ His subpoena effort, deserving of like characterization,⁸⁹ similarly defied Rule 17(c)'s counterpart.⁹⁰ 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,⁹¹ nor does he offer any explanation even now. There is no room for any suggestion that this omission is attributable to any informational handicap,⁹² for Ehrlichman has long since had ample opportunity to examine the files and to fully acquaint himself with their contents.⁹³

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 files do not reflect intercommunication and other interaction with President Nixon,⁹⁴ and "(i)n no case of this kind would a court be required to proceed against the president as an ordinary individual."⁹⁵ On the contrary, any court completely in the dark as to what Presidential files contain is duty bound to respect "the singularly unique role under Art. II⁹⁶ of a President's communications and activities, related to the performance of duties under that Article."⁹⁷ For "a President's communications and activities encompass a vastly wider range of sensitive material than would be true of any 'ordinary individual,' "⁹⁸ and "(i)t is therefore necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice."⁹⁹ Not only, then, were the Criminal Rules governing evidentiary discovery and production to be meticulously observed,¹⁰⁰ but an even higher standard was to be met. The White House files were "presumptively privileged"¹⁰¹ and the burden of justifying production was Ehrlichman's.¹⁰² Nothing less than a "demonstrated, specific need for evidence in a pending criminal trial"¹⁰³ 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 privilege which can only be overcome by some demonstration of need. From what we have already said,¹⁰⁴ it is manifest 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 trial¹⁰⁵ be deemed reasonable.¹⁰⁶ Nor, any more than with respect to the White House files, was there any attempt to show materiality of congressional items to the defense.¹⁰⁷ Even as to one category of information eventually designated evidence taken in executive session by the Subcommittee on Intelligence of the House Armed Services Committee the motion encountered these problems and more. The record reveals beyond peradventure that while the Subcommittee originally refused to furnish any of the evidence, at least some including Ehrlichman's own testimony before the Subcommittee¹⁰⁸ was later supplied,¹⁰⁹ and that free access to all of the evidence was conferred ultimately.¹¹⁰ Ehrlichman does not say that these concessions came too late in the trial to serve his interests¹¹¹ nor, if they did, does he indicate in any way how he might possibly have been harmed by the delay.¹¹² Rather, his complaint, as nearly as we can fathom it, is that at no time was any of the evidence available to him.¹¹³ In light of the disclosures by the record, we cannot accept that position; nor, without elucidation from Ehrlichman of the elements of a different claim, can we say that his right to discovery was in any wise abrogated.

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 challenges and the defendant or defendants jointly to 10 peremptory challenges." It further provides that "(i)f there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly." The defendants 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 defendant. Together with the mandated 10 challenges, to be exercised jointly, this award gave the defendants a total of 15 challenges. The judge indicated his unwillingness 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 agreement was reached, the totals remained at six and 15 respectively. J.A. 509; Tr. 698.

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, 95 S.Ct. 2629, 45 L.Ed.2d 670 (1975), and 423 U.S. 840, 96 S.Ct. 69, 46 L.Ed.2d 59 (1975); United States v. Williams, 463 F.2d 393, 395 (10th Cir. 1972); United States v. Crutcher, 405 F.2d 239, 245 (2d Cir. 1968), cert. denied, 394 U.S. 908, 89 S.Ct. 1018, 22 L.Ed.2d 219 (1969); 2 C. Wright, Federal Practice 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 awareness 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 side with a far greater number of challenges than the other.

Indeed, a proposal to amend Rule 24(b) has been approved by the Advisory Committee on Rules and Practice of the Judicial Conference of the United States, the Judicial Conference itself, and most recently by the Supreme Court,¹¹⁴ and will take effect shortly unless blocked by action of one House of Congress, but cf. H.R. 13899, 94th 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, 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.W. 4549-4550. The District Judge explicitly relied on the Advisory 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 exercising 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 unwillingness 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 discretion in a way that he thinks provides a fair balance between 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 defendants' 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 government 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 exempt 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 predetermined list to a venireman allegedly favorable to the prosecution. Assuming arguendo that appellants' characterization of this strategic decision is accurate, we find nothing prejudicial about their having been required to face it.¹¹⁵ 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 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, 86 S.Ct. 54, 15 L.Ed.2d 69 (1965), and he did not abuse it in this case.

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 physically well enough to be deposed. We find the contention without merit.

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 subpoenaed 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 personal appearance at trial is indispensable to Mr. Ehrlichman'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 speculative." 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 depose 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 "thrombophlebitis, and as a result requires present hospitalization 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 compel . . . 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 3rd Miller filed an affidavit reporting on Nixon's health. 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 discovered; that a test performed on September 30 indicated the embolus was resolving itself; and that tests were resumed 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 medication, 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.¹¹⁶ 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 continuance, again noting and expanding on the issues on which Nixon's testimony was needed. Doc. 396. Haldeman 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.¹¹⁷ At that time Miller reported that his client's 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 hospitalized for an additional ten days to two weeks. Thereafter, he would be precluded from "any activity requiring substantial mental or physical effort . . . (for) two or three months."¹¹⁸

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 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 filed motions to depose Nixon and to continue the trial until that was possible. Docs. 516, 524, 525, 526. Haldeman and Ehrlichman repeated the statements from their earlier motions concerning their need for Nixon's testimony; 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 sequestered jury during the requested continuance. Docs. 524, 526, 527. Co-defendant Mardian filed a statement opposing 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 deposed starting January 6, he would not be well enough to prepare prior to that date, and would need a "substantial" 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.¹¹⁹ The trial therefore proceeded 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 deliberating on December 30 and returned its verdict on January 1, 1975.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."¹²⁰ On the other hand, the Government generally has a substantial interest in avoiding disruptions of a court's calendar and in having guilt or innocence promptly adjudicated.¹²¹ Accordingly, in ruling on motions for continuances trial judges must carefully evaluate and then balance 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,¹²² the decision to grant a continuance is vested in the trial judge's discretion, and reviewable only when such discretion has been abused.¹²³

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 defendant'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.¹²⁴ Second, the court must assess 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.