U.S. Appeals Court 1974 decision on U.S. v. Liddy

[Douglas Caddy]

UNITED STATES v. GEORGE GORDON LIDDY

United States Court of Appeals for the District of Columbia Circuit

509 F.2d 428

Before: BAZELON, Chief Judge, WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON, and WILKEY, Circuit Judges, sitting en banc.

LEVENTHAL, Circuit Judge.

Appellant Liddy seeks reversal of his conviction on charges relating to the burglary and wiretapping of the offices of the Democratic National Committee in the Watergate apartment-office building complex in the early morning hours of Saturday, June 17, 1972. Appellant was named in six counts of an eight count indictment returned against seven defendants1 on September 15, 1972. On January 8, 1973, jury selection began before then Chief Judge John J. Sirica of the United States District Court for the District of Columbia. Shortly after the trial commenced, five defendants changed their pleas to guilty. On January 30, 1973, the remaining defendants, appellant Liddy and James W. McCord, Jr., were found guilty by the jury. Appellant was convicted of conspiracy in violation of 18 U.S.C. § 371 (count 1), burglary in violation of 22 D.C. Code § 1801( (counts 2 and 3), and unlawful endeavor to intercept oral and wire communications and interception of communications in violation of 18 U.S.C. § 2511(1)(a) (counts 4, 5, and 8). * * *

* * *

IV. INSTRUCTION REGARDING RETAINING OF COUNSEL

On direct examination, attorney Michael Douglas Caddy testified as follows: At approximately 3:40 a.m. Saturday morning, June 17, 1972, Howard Hunt arrived at his apartment and arranged with him to secure counsel for the five men arrested in the Democratic National Committee’s offices an hour and a half earlier.

At about 4:45 a.m. Hunt called Liddy and both Hunt and Caddy explained to Liddy the steps that had been taken to retain an attorney for those men. During this conversation, Liddy indicated that he desired to have Caddy represent him in this matter.

Appellant assigns as error the trial judge’s instruction that the jury could draw no adverse inferences from the fact that Liddy retained counsel but could consider the time and other surrounding circumstances at which Mr. Liddy retained Mr. Caddy with respect to the state of mind of Mr. Liddy only. Appellant claims that allowing the jury to draw inferences of guilty knowledge from his efforts to obtain counsel imposes a penalty on the exercise of his Sixth Amendment rights.40 Liddy cites the Government’s emphasis in closing argument on the unusual hour at which he retained counsel as evidence of the prejudicial nature of the alleged error.

Appellant bases his Sixth Amendment claim on Griffin v. California, 380 U.S. 609 (1965). In that case the Court held that comment on the defendant’s failure to testify was forbidden by the Fifth Amendment, because it was tantamount to a penalty for exercising a constitutional right. Id. at 614-15. A number of courts, including this court, have extended the principle announced in Griffin to prohibit comment on the defendant’s failure to make an exculpatory statement upon arrest.

There is disagreement as to whether a defendant’s silence at the time of arrest can be used to impeach his testimony at trial. Compare United States v. Hale, 498 F.2d 1038 (D.C. Cir. 1974); Johnson v. Patterson, 475 F.2d 1066 (10th Cir.), cert. denied, 414 U.S. 878 (1973) with United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. denied, 404 U.S. 869 (1971). This disagreement appears to be grounded primarily on diverse conclusions reached in attempts to harmonize the Supreme Court’s decision in Harris v. New York, 401 U.S. 222 (1971), and Miranda v. Arizona, 384 U.S. 436 (1966).

There is only scant law on the applicability of the penalty analysis employed in Griffin to the Sixth Amendment right to counsel. Some courts have found reversible error in circumstances in which the prosecutor has commented on the defendant’s silence and request for counsel upon arrest. Those cases, though containing language referring generally to the right to counsel, appear to be bottomed on considerations involving the rights of an accused facing police interrogation - a context in which the right to counsel is intimately bound up with the privilege against self-incrimination. They are thus of marginal value in ascertaining the applicability of Griffin to the Sixth Amendment claim raised in the present case.

In the present case, the trial judge instructed the jury that no adverse inferences could be drawn from the fact that appellant Liddy exercised his constitutional right to counsel. The trial judge, however, drew a distinction between the fact of hiring counsel and the time and circumstances under which an attorney was retained by the defendant.

Although it is the latter action of the trial judge that is contested on this appeal, we may usefully begin our discussion by approval of his instruction prohibiting the drawing of an adverse inference from the mere fact of hiring an attorney, at least when the circumstances are such that admission of evidence of such a request provokes the possibility that it will be taken as self-incriminatory. This prohibition of adverse inference from the fact of hiring an attorney seems to us to be a fair corollary to the Supreme Court’s opinion in Griffin. We should, perhaps, refer to our opinion in Jones v. United States, 111 U.S.App.D.C. 276, 296 F.2d 398 (en banc 1961), cert. denied, 370 U.S. 913 (1962), although it was not cited by parties. Insofar as Jones, which rejects a Sixth Amendment claim, uses the broad principle that the expression of a desire to have a lawyer never impinges on the right to have one, we think it is superseded by the reasoning of Griffin. * * *

In view of the peculiarities of the fact situation in Jones, we see no point in speculating on the result that would and should have ensued if it had been decided after Griffin. Certainly, the broadside rejection of the Sixth Amendment contention was not sound.

The trial judge erred, however, in limiting the application of the principle of Griffin with a ruling that apparently considered that it is generally proper to take into account the time and circumstances of retaining an attorney, and to draw whatever inferences as seem appropriate. Such a distinction generally raises problems that hobble the right to seek counsel. To the extent that an inference of criminality is operative, it invites probing of the very process of selection of counsel - who, why, when and where - and pressing the defendant to come forward with evidence concerning this process. The mischief of the approach is underlined by its semantic subtleties, which opens the door to maneuver and misunderstanding. It would be a rare case indeed where the prosecutor could not point out that the incriminating feature of the employment of counsel - in the absence of explanation - rests not in the employment as such but in the time and circumstances surrounding that event, and inferences therefrom that reflect adversely on the defendant.45

The Third Circuit recently examined the application of Griffin to a Sixth Amendment contention in United States ex rel Macon v. Yeager, 476 F.2d 613 (3rd Cir.), cert. denied, 414 U.S. 855 (1973). In that case the prosecutor in his summation to the jury commented upon the fact that the defendant called an attorney the morning after the alleged crime and argued that this action cast doubt on the defendant’s claim that the shooting was an accident. Id. at 614. Although the defendant neither objected to the comment nor requested an instruction, the court held that there was plain error that required a reversal of the conviction. The court read Griffin as an absolute prohibition against the imposition of any penalty for the exercise of a constitutional right in a criminal law context. Id. at 615-16.

We agree with the Third Circuit’s analysis that the admission of a request for counsel raises Sixth Amendment problems under Griffin. We are not called upon in this case to determine whether the Third Circuit was correct in treating Griffin as a bar that is absolute - whether, for example, it would apply where the request for or retainer of counsel was part of the actions constituting the offense, sometimes called the res gestae, so that omission of the request or retainer would distort the underlying account of the witnesses or undercut the likelihood that it would be considered reasonable or natural.

In the present case, even if it be assumed that there was error in the admission of evidence, the prosecutor’s summation, or the instruction, or all of these, the error would be harmless beyond a reasonable doubt. In Macon, where the Third Circuit found reversible error, the prosecutor’s comment was directed at the credibility of the accused’s story which was a central issue in the case. 476 F.2d at 616. Here, the time at which Liddy retained counsel was but one of a number of factors that linked him to Hunt and the five defendants apprehended a couple of hours earlier. Moreover, the effect of the error was mitigated by the fact that evidence of part of Liddy’s 5:00 a.m. conversation with Caddy was clearly admissible to show Liddy’s involvement in his action of retaining counsel for those arrested during the break-in. His assertion of a right to Sixth Amendment protection against any use of his statements to obtain counsel for himself certainly does not prohibit inquiry into portions of his conversation with Caddy relating to his action in obtaining counsel for others. This evidence of Liddy’s efforts on behalf of the five defendants only a few hours after their arrest was probative of his involvement in their venture.

The evidence against the appellant, summarized at the outset of the opinion, was so overwhelming that even if there were constitutional error in the comment of the prosecutor and the instruction of the trial judge there is no reasonable possibility that it contributed to the conviction.

* * *

Affirmed.

----------------------------------------

This 1998 article by me from The Wall Street Journal puts in perspective the 1974 decision of the U.S. Court of Appeals decision in U.S. v. Liddy.

The Wall Street Journal

Editorial Page

March 24, 1998

WHAT IF JUDGE SIRICA WERE WITH US TODAY?

By Douglas Caddy

(Mr. Caddy is a Houston lawyer)

The Clinton scandals, with all the claims of coverup and executive privilege, are certainly reminiscent of Watergate. But there is a crucial difference: This case lacks a John Sirica, the chief judge of the U.S. District Court for the District of Columbia who played such a crucial role in Watergate. The untold historical record reveals that the early actions of Sirica, who assigned the Watergate case to himself, helped spur the subsequent coverup and obstruction of justice that ultimately led to the resignation of President Nixon and the criminal convictions of many Watergate figures.

The Watergate scandal began at 2:30 a.m. on June 17, 1972, when Washington, D.C. police arrested five men on burglary charges at the Watergate office building. At 3:05 a.m. E. Howard Hunt phoned me from his White House office and asked if he could come immediately to my Washington residence. I had been Hunt’s personal attorney for several years.

Hunt arrived half an hour later and informed me what had transpired earlier at the Watergate. He retained me to represent him in the case and then called G. Gordon Liddy, who also hired me. At that time, about two hours after the burglary, both Hunt and Liddy requested I also represent the five people arrested, four Cuban-Americans and James McCord, who were then incarcerated in the D.C. jail.

On June 28 – 11 days later – while working on the case in the federal courthouse in Washington, I was served with a subpoena bearing the name of Chief Judge Sirica, to appear “forthwith” before the federal grand jury investigating the case. Assistant U.S. Attorney Donald Campbell grabbed me by the arm and pulled me into the grand jury room.

From June 28 until July 19 I was to appear before the grand jury on six occasions and answer hundreds of questions. I drew the line, however, on the advice of my own legal counsel, at answering 38 questions we felt invaded my clients’ Sixth Amendment right to counsel and the attorney-client privilege. A typical question: “Between the hours of Friday at midnight, June 16, and 8:30 a.m. Saturday, June 17, did you receive a visit from Mr. Everett Howard Hunt?” We believed answering such questions would incriminate Hunt and Liddy, who had not been arrested, and would violate their constitutional rights.

Judge Sirica, rejecting such arguments out of hand, threatened to jail me for contempt of court. When I went before the grand jury on July 13, I refused to answer the 38 questions. Within an hour I was back before Judge Sircia, who immediately held me in contempt of court and ordered me to jail. Five days later, on July 18, the U.S. Court of Appeals upheld the contempt citation and ordered me to testify under threat of being jailed again. The opinion, which I found gratuitously insulting, declared: “Even if such a relationship does exist, certain communications, such as consultation in furtherance of a crime, are not within the privilege.”

In his July 19, 1972, Oval Office tape, Nixon is recorded as expressing dismay to John Ehrlichman: “Do you mean the circuit court ordered an attorney to testify?”

Ehrlichman replied, “It [unintelligible] me, except that this damn circuit that we’ve got here, with

[Judge David] Bazelon and so on, it surprises me every time they do something.”

Nixon then asked, “Why didn’t he appeal to the Supreme Court?”

The answer is that my attorneys and I believe we had built a strong enough court record that if Hunt, Liddy and the five arrested individuals were found guilty, their convictions could be overturned on appeal because of Sirica’s and the appeals court’s abuse of me as their attorney.

However, Judge Sirica’s actions had an unintended consequence. Hunt and Liddy, seeing their attorney falsely accused by Judge Sirica of being a participant in their crime, realized early on that they were not going to get a fair trail, so they embarked on a coverup involving “hush money.” As Hunt has written: “If Sirica was treating Caddy – an Officer of the Court – so summarily, and Caddy was completely uninvolved in Watergate – then those of us who were involved could expect neither fairness nor understanding from him. As events unfolded, this conclusion became tragically accurate.”

Liddy appealed his conviction to the U.S. Court of Appeals, claiming that my being forced to testify denied him his Sixth Amendment right to counsel. The court upheld his conviction: “The evidence against appellant...was so overwhelming that even if there were constitutional error in the comment of the prosecutor and the instruction of the trial judge, there is no reasonable possibility it contributed to the conviction.” Neither Judge Sirica nor the appeals court acknowledged that their assault on the attorney-client privilege helped spur the ensuing coverup and obstruction of justice.

I was never indicted, named an unindicted co-conspirator, disciplined by the Bar or even contacted by the Senate Watergate Committee or the House Judiciary Committee, whose staff included a young lawyer named Hillary Rodham.

Now the issue of the attorney-client privilege is again being raised, this time by Monica Lewinsky’s first lawyer, Francis D. Carter, who has been subpoenaed to appear before the grand jury and bring the notes he took while representing Ms. Lewinsky. Mr. Carter got involved when Vernon Jordan referred Ms. Lewinsky to him in January. On March 4, Mr. Carter’s attorney, Charles Ogletree, argued before Chief Judge Norma Hollaway Johnson that the subpoena should be quashed: “Once you start to allow the government to intrude on the attorney-client relationship and allow them to pierce the attorney-client privilege, clients will no longer have a sense of confidence and respect that lawyers should have.”

Coming days will reveal how Mr. Carter fares in his fight to protect Ms. Lewinsky’s constitutional rights and what effect this will have on the case’s ultimate outcome. To date, at least, Judge Johnson has shown a restraint that her predecessor Judge Sirica did not.

Edited July 15, 2006 by Douglas Caddy

[Dawn Meredith]

UNITED STATES v. GEORGE GORDON LIDDY

United States Court of Appeals for the District of Columbia Circuit

509 F.2d 428

Before: BAZELON, Chief Judge, WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON, and WILKEY, Circuit Judges, sitting en banc.

LEVENTHAL, Circuit Judge.

Attorney Caddy:

Thanks for posting this. Interesting reading. My husband- also a criminal defense attorney- does a lot of appeallate work, so I read these decsions all the time. (I also read all the briefs, as well as the entire court record to see if I think he's missed any points of error).

Nice try, but the court was correct in affirming. (And, as you know, they give great deference to the trial court).

I have a couple of questions:

Why was it not a conflict of interest for you to represent multiple defendants? (I know the "correct" answer to this and what I do, but curious as to your answer). (I promise this is not a "trick question").

While I do not expect you to violate privilege, what is your personal opinion re the events of 6/17/72? By this do you:

1. Believe the defendants were working at Nixon's -(or one of his dirty trickster's )-behest?

2 If so why? What were they after? (And please, no Mo Dean trick book).

3. If not, who do you believe they were wroking for?

("themselves" is not an answer anyone would consider plausible).

Note I am NOT asking you to tell me what they told you in confidence, as that is privileged, so I would not ever ask you this. I am merely asking your opinion. I trust you do form personal opinions, irrespective of the job you must do in zealously defending your client(s). We all do so-it's just human nature. And we all talk about it around here, as a kind of comic relief. (I once had a client who got caught with an ATM machine. He told me he FOUND it at the camp- (Ben McCulloch) - across the st. from where it was stolen. I laughed for days. As did everyone I told. (I never told the client's name of course, that is how we keep the privilege here. No names)

So having personal opinions is part of being human. Your defendants just happen to be famous, otherwise they are standard, every day B and E guys.

I appreciate your response.

Dawn

ps I read the Wall Street article the date it was published. In fact saved it.

Fascinating. I use the Bill/Monica -and- her- mother -forced- to -testify example all

the time with parents of my Juvenile clients when they are giving me a hard time about

needing to speak in private with the child the have just hired me to represent. THEN they

"get it". (No, privilege between parent/child)

[Ashton Gray]

UNITED STATES v. GEORGE GORDON LIDDY

United States Court of Appeals for the District of Columbia Circuit

509 F.2d 428

Before: BAZELON, Chief Judge, WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON, and WILKEY, Circuit Judges, sitting en banc.

LEVENTHAL, Circuit Judge.

...On direct examination, attorney Michael Douglas Caddy testified as follows: At approximately 3:40 a.m. Saturday morning, June 17, 1972, Howard Hunt arrived at his apartment and arranged with him to secure counsel for the five men arrested in the Democratic National Committee’s offices an hour and a half earlier.

Hm. That was your sworn testimony, eh? Now, that's odd. "An hour and a half earlier" from "approximately 3:40 a.m." would be approximately 2:-00-2:10 a.m. And in his autobiography, Hunt said he placed his call to you at precisely "0213." That's 2:13 a.m. But when you quoted that section from Hunt's autobiography in your professional victim article in The Advocate, you changed the time that Hunt had written. You changed it to "3:13 a.m."

And, for reasons I can't quite figure out, you omitted this section from the same Court of Appeals ruling:

• At about 3 a.m. Hunt arrived at room 723 with a walkie talkie and used the telephone to call an attorney, Michael Douglas Caddy. Caddy's testimony established that about a half hour after this phone call, Hunt visited Caddy's apartment.
  

Weird "Moebius Time" things happening all up in there, huh? Especially since Hunt says in his autobiography that— Well, here: let me just quote it from your own article, where you quote Hunt about one of these "historical events":

• DOUGLAS CADDY QUOTING E. HOWARD HUNT
  "From there I drove to the White House annex--the old Executive Office Building, in bygone years the War Department and later the Department of State.
  "Carrying three heavy attache cases, I entered the Pennsylvania Avenue door, showed my blue-and-white White House pass to the uniformed guards, and took the elevator to the third floor. I unlocked the door of 338 and went in. I opened my two-drawer safe, took out my operational handbook, found a telephone number and dialed it.
  "The time was 3:13 [NOTE: Hunt said in his autobiography it was 0213; Caddy changed it] in the morning of June 17, 1972, and the five of my companions had been arrested and taken to the maximum-security block of the District of Columbia jail. I had recruited four of them and it was my responsibility to get them out. That was the sole focus of my thoughts as I began talking on the telephone.
  "But with those five arrests the Watergate affair had begun...
  "After several rings the call was answered and I heard the sleepy voice of Douglas Caddy. 'Yes?'
  "'Doug? This is Howard. I hate to wake you up, but I've got a tough situation and I need to talk to you. Can I come over?'
  "'Sure. I'll tell the desk clerk you're expected.'"
  

Oh! The drama! And the nobility of E. Howard Hunt, thinking only of his mates! (God, that just gives new meaning to "hack writing," doesn't it, Doug? It reads like "The Hardy Boys Go To Washington." No, I repent: that's a brutal thing to say about good Hardy Boys literature.)

But let's get past Hunt's prosaic mayhem, and help me out, would you? I'm trying to figure this out now: comparing all this would mean that the two of you—that's you and Hunt—told one story under oath, but you both tell an entirely different story when you write for books and magazines.

Do I have this right? (Remember, I'm just a lay guy, not a sharp lawyer, so cut me a little slack if I got it wrong, okay?)

If not, what's the truth? All that up there can't be true. Without using the "L" word, somebody up in there is euphemising their ass off.

And speaking of which, did you actually get woken up by Hunt at 2:13 or 3:13 a.m. (take your pick), calling either from room 723 of the Howard Johnson's or from his office at the White House (take your pick), him saying nothing but that he wanted to drop by because of a "tough situation," and did you actually just say, sure, come on up? Was the fact of a CIA guy wanting to drop by at 2:00 or 3:00 a.m., like, no big deal or something?

If not, I guess we'll have to go with the Mrs. Barker story you told the Washington Post (well, one of the stories you've told): a completely strange woman called you from Miami, Florida at a little after 3:00 a.m., woke you up to say that her husband—who you had only met once in your life, a year before, in a lounge—had said to call you at 3:00 if she hadn't heard from him because he might be in some unknown "kind of trouble" at some unknown location in Washington, D.C.

Is that it?

(But, no, that won't work, either, because you include the fact of Hunt himself having woken you up in your article. Hmmmmm.)

<Sigh>

I have so much trouble trying to figure all you urbane, cosmopolitan people out. I'm just a bumpkin. I ask questions trying to learn, and your rebuff me. What's a hayseed supposed to do?

(Hey! Hunt didn't talk in falsetto when he called, did he, pretending to be a woman from Miami? Could that be it? Nahhh, that's probably not it)

Weird, weird world, that Washington, D.C. Hell, I can't even figure out how they fit so many time zones in a place that small.

Well, I figure at some point you'll get it all sorted out, so I'll just sit back and watch and learn. Maybe whittle or something. How's that new book coming?

Ashton Gray

Edited July 16, 2006 by Ashton Gray

[Douglas Caddy]

UNITED STATES v. GEORGE GORDON LIDDY

United States Court of Appeals for the District of Columbia Circuit

509 F.2d 428

Before: BAZELON, Chief Judge, WRIGHT, McGOWAN, LEVENTHAL, ROBINSON, MacKINNON, and WILKEY, Circuit Judges, sitting en banc.

LEVENTHAL, Circuit Judge.

Attorney Caddy:

Thanks for posting this. Interesting reading. My husband- also a criminal defense attorney- does a lot of appeallate work, so I read these decsions all the time. (I also read all the briefs, as well as the entire court record to see if I think he's missed any points of error).

Nice try, but the court was correct in affirming. (And, as you know, they give great deference to the trial court).

I have a couple of questions:

Why was it not a conflict of interest for you to represent multiple defendants? (I know the "correct" answer to this and what I do, but curious as to your answer). (I promise this is not a "trick question").

While I do not expect you to violate privilege, what is your personal opinion re the events of 6/17/72? By this do you:

1. Believe the defendants were working at Nixon's -(or one of his dirty trickster's )-behest?

2 If so why? What were they after? (And please, no Mo Dean trick book).

3. If not, who do you believe they were wroking for?

("themselves" is not an answer anyone would consider plausible).

Note I am NOT asking you to tell me what they told you in confidence, as that is privileged, so I would not ever ask you this. I am merely asking your opinion. I trust you do form personal opinions, irrespective of the job you must do in zealously defending your client(s). We all do so-it's just human nature. And we all talk about it around here, as a kind of comic relief. (I once had a client who got caught with an ATM machine. He told me he FOUND it at the camp- (Ben McCulloch) - across the st. from where it was stolen. I laughed for days. As did everyone I told. (I never told the client's name of course, that is how we keep the privilege here. No names)

So having personal opinions is part of being human. Your defendants just happen to be famous, otherwise they are standard, every day B and E guys.

I appreciate your response.

Dawn

ps I read the Wall Street article the date it was published. In fact saved it.

Fascinating. I use the Bill/Monica -and- her- mother -forced- to -testify example all

the time with parents of my Juvenile clients when they are giving me a hard time about

needing to speak in private with the child the have just hired me to represent. THEN they

"get it". (No, privilege between parent/child)

Of course, eventually there would have been a problem with multiple legal representation of all seven defendants – McCord and the four Cuban-Americans arrested at Watergate on June 17, 1972, and Hunt and Liddy who were not arrested then.

After I was served with a subpoena on June 28, 1972, to appear “Forthwith” before the federal grand jury investigating the case, I had to withdraw completely from representation of any of the seven defendants as my role had been changed to being a witness.

But even after this event, the four Cuban-American were represented by one attorney – Henry Rothblatt, while Hunt, Liddy and McCord each retained their own counsel. So a majority of the seven defendants were still represented by one attorney, Rothblatt, as the case went to trial in January 1973.

As to the other questions you pose, I think the answers to these can be found in the sworn deposition of Gordon Liddy of December 6, 1996, that I posted in the Forum today.

Edited July 17, 2006 by Douglas Caddy

[Dawn Meredith]

Mr Caddy:

I so appreciate your responses. I almost missed them as they appear in my post, looking like a part of your post that I neglected to erase.

I don't have time at the moment to study the testimony you referenced, as I have a trial tomarrow , so just taking a quick peek here, while I have a snack break. Things will slow down a bit by the weekend and I can catch up with all on the forum.

Just wanted to acknowledge your response and , as always, thank you.

Dawn