UNITED STATES of America v. Bernard L. BARKER, Appellant.

UNITED STATES of America v.

Eugenio R. MARTINEZ, Appellant.

Nos. 74-1883, 74-1884.

United States Court of Appeals, District of Columbia Circuit.

Argued 18 June 1975. Decided 17 May 1976.

Appeals from the United States District Court for the District of Columbia (D.C. Criminal 74-116).

Daniel E. Schultz, Washington, D. C. (appointed by this Court), for appellants Barker and Martinez.

Philip B. Heyman, Sp. Asst. to the Special Prosecutor, with whom Henry S. Ruth, Jr., Special Prosecutor, Peter M. Kreindler, Counsel to the Special Prosecutor, Washington, D. C, Maureen E. Gevlin and Richard D. Weinberg, Asst. Sp. Prosecutors, Washington, D. C, were on the brief for appellee. Leon Jaworski, Special Prosecutor at the time the record was filed, Washington, D. C, entered an appearance as Special Prosecutor.

Ivan Michael Schaeffer, Atty., Dept. of Justice, Washington, D. C, filed a memorandum on behalf of the U. S. as amicus curiae.

Appellants Bernard L. Barker and Eugenio R. Martinez were convicted by a jury of the United States District Court for the District of Columbia of conspiracy to violate the civil rights of Dr. Lewis J. Fielding, in violation of 18 U.S.C. § 241. Appellants were members of the "Special Investigations" unit which burglarized Dr. Fielding's office in search of records on his patient, Daniel Ellsberg. The convictions were appealed to the United States Court of Appeals, where argument was heard in conjunction with the companion appeals of

John D. Ehrlichman and G. Gordon Liddy. In opinions by Judges Wilkey and Merhige, to which Judge Leventhal dissents in part, the convictions of Barker and Martinez are reversed.

The opinions by the majority deal with two substantial points raised on appeal. First, Appellants argue that the conviction under 18 U.S.C. § 241 must be reversed because the specific intent requirement of that statute has not been met. Barker and Martinez assert that the requisite specific intent is present only where the conspirators' predominant purpose is an act in violation of civil rights, and thus that it is lacking in this case where the primary objective was the inspection of Ellsberg's records rather than the burglary of Dr. Fielding's office. Citing Anderson v. United States,  417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974), the court unanimously rejects this argument on the basis that specific intent is present whether actions violating federal civil rights are a predominant or incidental objective of the conspiracy. (Wilkey op. at ---------------of 178 U.S.App.D.C, at 948 of 546 F.2d, Merhige op. at-----U.S.App.D.C, at 954 of 546 F.2d, Leventhal op. at ----------------of 178 U.S.App. D.C., at 970-971 of 546 F.2d).

Second, Appellants challenge their convictions on the ground that the District Court's evidentiary rulings and jury instructions denied them the opportunity to prove a defense of good faith reliance on apparent authority. More specifically, Barker and Martinez complain: (1) that evidence was excluded as to the reasonableness of their belief in the authority of E. Howard Hunt, their White House superior, to order such an operation; and (2) that the District Court rejected a proposed jury instruction allowing a defense for reasonable, good faith reliance on apparent authority, and instructed instead that absent belief that a valid warrant had been obtained, any mistake as to the legality of the operation was no defense.

Judges Wilkey and Merhige conclude that the District Court erred in rejecting the possibility of a limited mistake of law defense. While both recognize the general rule that a mistake of law is no defense, they conclude that the District Court's refusal to recognize an exception to that doctrine possibly applicable to this case requires reversal of the convictions.

Judge Wilkey states that Appellants might have been able to bring themselves within an exception to the mistake of law doctrine relating to assistance of a governmental official in the performance of a governmental function. In order to establish such a defense they would have to prove (1) facts justifying their reasonable reliance on Hunt's apparent authority and (2) a plausible legal theory under which Hunt could in fact have such authority. He concludes that the facts justifying reliance might have been proven had the court admitted the evidence offered by Appellants, and that a plausible legal theory supporting such a defense is presented by the longstanding Justice Department view that the President may authorize warrantless searches related to foreign espionage or intelligence. (Wilkey op. at --------------of 178 of 178 U.S.App.D.C, at 949-953 of 546 F.2d).

Judge Merhige finds possibly applicable to Appellants an exception to the mistake of law rule for reasonable reliance upon official interpretations of the law. He states that the jury could have concluded that Assistant to the President, John Ehrlichman, had expressed or implied that the break-in was legal under a national security rationale, and that this view was relayed to Appellants by Hunt. Further, in view of the substantial power of the Executive Branch in the field of foreign affairs, a jury could further find that Appellants acted reasonably in relying on this interpretation of the law. (Merhige op. at -------------------of 178 U.S.App.D.C, at 954-957 of 546 F.2d).

The convictions are accordingly REVERSED.

Judge Leventhal dissents on the ground that Appellants have failed to allege facts which might bring them within any established exception to the doctrine that a mistake of law is no defense.

Before LEVENTHAL and WILKEY, Circuit Judges, and MERHIGE,^{Footnote *} United States District Judge for the Eastern District of Virginia.

Opinion Per Curiam.

Circuit Judge WILKEY and District Judge MERHIGE filed opinions reversing the judgment of the District Court.

Dissenting Opinion filed by Circuit Judge LEVENTHAL.

PER CURIAM: The mandate of the court is that the Judgment of the District Court is reversed and the case is remanded for a new trial. Judges Wilkey and Merhige have filed separate opinions. Judge Leventhal dissents.

WILKEY, Circuit Judge: Two of the "footsoldiers" of the Watergate affair, Bernard Barker and Eugenio Martinez, are with us again. They haven't been promoted, they are still footsoldiers. They come before us this time to challenge their convictions under 18 U.S.C. § 241, for their parts in the 1971 burglary of the office of Dr. Lewis J. Fielding.

I. FACTS During the summer of 1971, following the publication of the now famous "Pentagon Papers," a decision was made to establish a unit within the White House to investigate leaks of classified information. This "Room 16" unit, composed of Egil Krogh, David Young, G. Gordon Liddy, and E. Howard Hunt'and under the general supervision of John Ehrlichman'determined, or was instructed, to obtain all possible information on Daniel Ellsberg, the source of the Pentagon Papers leak.^{Footnote 1} After Ellsberg's psychiatrist, Dr. Fielding, refused to be interviewed by FBI agents, the unit decided to obtain copies of Ellsberg's medical records through a covert operation.

Hunt had been a career agent in the CIA before his employment by the White House. One of his assignments was as a supervising agent for the CIA in connection with the Bay of Pigs invasion, and, as "Eduardo," he was well known and respected in Miami's Cuban-American community. A fact destined to be of considerable importance later, he had been Bernard Barker's immediate supervisor in that operation. When the "Room 16" unit determined that it would be best if the actual entry into Dr. Fielding's office were made by individuals not in the employ of the White House, Hunt recommended enlisting the assistance of some of his former associates in Miami.

Hunt had previously reestablished contact with Barker in Miami in late April 1971, and he met Martinez at the same time. He gave Barker an unlisted White House number where he could be reached by phone and wrote to Barker on White House stationery. On one occasion Barker met with Hunt in the Executive Office Building. By August 1971 Hunt returned to Miami and informed Barker that he was working for an organization at the White House level with greater jurisdiction than the FBI and the CIA. He asked Barker if he would become "operational" again and help conduct a surreptitious entry to obtain national security information on "a traitor to this country who was passing . classified information to the Soviet Embassy." He stated further that "the man in question . . . was being considered as a possible Soviet agent himself." Barker agreed to take part in the operation and to recruit two additional people. He contacted Martinez and Felipe deDiego. Barker conveyed to Martinez the same information Hunt had given him, and Martinez agreed to participate. Like Barker, Martinez had begun working as a covert agent for the CIA after Castro came to power in Cuba. Although Barker's formal

relationship with the CIA had ended in 1966, Martinez was still on CIA retainer when he was contacted.

Both testified at trial that they had no reason to question Hunt's credentials. He clearly worked for the White House and had a well known background with the CIA. During the entire time they worked for the CIA, neither Barker nor Martinez was ever shown any credentials by their superiors. Not once did they receive written instructions to engage in the operations they were ordered to perform. Nevertheless, they testified, their understanding was always that those operations had been authorized by the Government of the United States. That they did not receive more detail on the purpose of the Fielding operation or its target was not surprising to them; Hunt's instructions and actions were in complete accord with what their previous experience had taught them to expect. They were trained agents, accustomed to rely on the discretion of their superiors and to operate entirely on a "need-to-know" basis.

On 2 September 1971 Hunt and Liddy met Barker, Martinez, and deDiego at a hotel in Beverly Hills, California. Hunt informed the defendants that they were to enter an office, search for a particular file, photograph it, and replace it. The following day the group met again. Hunt showed Barker and Martinez identification papers and disguises he had obtained from the CIA. That evening the defendants entered Dr. Fielding's office. Contrary to plan, it was necessary for them to use force to effect the break-in. As instructed in this event, the defendants spilled pills on the floor to make it appear the break-in had been a search for drugs. No file with the name Ellsberg was found.

The next day Barker and Martinez returned to Miami. The only funds they received from Hunt in connection with the entry of Dr. Fielding's office were reimbursement for their living expenses, the costs of travel, and $100.00 for lost income.

On 7 March 1974 the defendants were indicted under 18 U.S.C. § 241, along with Ehrlichman, Liddy, and deDiego for conspiring to violate the Fourth Amendment rights of Dr. Fielding by unlawfully entering and searching his office. On 7 May 1974 the defendants filed a Motion for Discovery and Inspection with an accompanying memorandum outlining, inter alia, their proposed defense of absence of mens rea due to a mistake of fact mixed with law attributable to their reasonable reliance on apparent authority.² On 24 May 1974, in a memorandum order, the District Court rejected the defendants' position on the ground that "a mistake of law is no defense." ^{Footnote 3}

On 12 July 1974 the jury returned verdicts of guilty against both Barker and Martinez.

II. LEGAL ISSUES

The court's determination at the outset that a mistake of law could not excuse defendants' conduct led to two important legal errors which require reversal of the Barker and Martinez convictions.

First, the defendants were prevented during the trial from offering complete evidence as to the reasonableness of their belief in Hunt's authority to engage them in the Fielding operation. ^{Footnote 4}

Second, at the end of the trial, the District Court rejected the defendants' proposed instructions setting forth their theory of the case. ^{Footnote 5}

The jury was advised that to convict they need find only that the purpose of the break-in was to enter and search Dr. Fielding's office without a warrant or his permission, and for governmental rather than purely private purposes; a mistake as

to the legality of such an operation was no defense. ^{Footnote 6}

Barker and Martinez raise two arguments to sustain their position that they lacked the mens rea required for a conviction under section 241. The first is that their reasonable reliance on Hunt's authority'their "mistake of fact mixed with law" 'negated the element of intent which is common to most serious criminal offenses, including conspiracy. It is this claim which requires reversal. Had the law as it stood in 1971 been correctly appraised by the trial judge, a more ample scope of proof and different jury instructions would have been granted appellants, all as discussed in Part IV, infra. The second argument is based upon the particular element of "specific intent" contained in section 241. While the court's opinion in Ehrlichman analyzes this second argument in detail,' a summary here may be helpful to distinguish the two arguments.

III. THE "SPECIFIC INTENT" REQUIREMENT OF 18 U.S.C. § 241

It is settled law that a conviction under this section requires proof that the offender acted with a "specific intent" to interfere with the federal rights in question. ^{Footnote 8}

This does not mean that he must have acted with the subjective awareness that his action was unlawful. It is enough that he intentionally performed acts which, under the circumstances of the case, would have been clearly in violation of federal law, absent any other defense.

In the instant case, the District Court instructed the jury that a conviction was appropriate under section 241 if they found that the defendants conspired to enter and search Dr. Fielding's office, for governmental rather than personal reasons, without a warrant and without Dr. Fielding's permission. Barker and Martinez argue, however, citing United States v. Guest, ^{Footnote 9} that the court erred in failing to advise the jury that a conviction was only possible if they further found that an unauthorized search of Dr. Fielding's office was the predominant, as opposed to incidental, purpose of the conspiracy. They conclude that such a test could not be met here, since their primary objective was the inspection of Ellsberg's records, not the burglary of Dr. Fielding's office.

Admittedly, the Supreme Court's brief discussion in Guest of the "specific intent" requirement is susceptible of the interpretation the defendants would place upon it. The Court did use the words "predominant purpose" to characterize the kind of intent to interfere with the right of interstate travel which could trigger the application

of section 241. ^{Footnote 10}

That such an interpretation of the "specific intent" requirement is incorrect, however, was made quite clear by the Supreme Court in its most recent major decision on the requirements of section 241, 11 Anderson v. United States. the primary objective of the conspiracy was to influence a local election by casting false votes. As an incidental matter, false votes were cast for candidates for federal office as well. The Court concluded that "specific intent" had been adequately proven: A single conspiracy may have several purposes but if one of them'whether primary or secondary'be the violation of federal law, the conspiracy is unlawful under federal law. ^{Footnote 12}

Moreover, the Court emphasized, there was no requirement under section 241 that the defendants have entertained the purpose of changing the outcome of the federal election. It was enough that they intended to cast false votes for candidates for federal office and thereby dilute the voting power of their fellow citizens. ^{Footnote 13}

Thus, under Anderson, even if the defendants had as their primary objective the photographing of Daniel Ellsberg's medical file, so long as one of the purposes of the entry was to search Dr. Fielding's office without a warrant or his consent, the "specific intent" requirements of section 241 were met. Like that of Ehrlichman, the appeal of Barker and Martinez on this ground alone would falter.

IV. THE DEFENSE OF GOOD FAITH, REASONABLE RELIANCE ON APPARENT AUTHORITY In that case,

A. The primary ground upon which defendants Barker and Martinez rest their appeal is the refusal of the District Court to allow them a defense based upon their good faith, reasonable reliance on Hunt's apparent authority. They characterize this defense as a mistake of fact "coupled with" a mistake of law which negated the mens rea required for a violation of section 241. "The mistake of fact was the belief that Hunt was a duly authorized government agent; the mistake of law was that Hunt possessed the legal prerequisites to conduct a search'either probable cause or a warrant." ^{Footnote 14}

It is a fundamental tenet of criminal law that an honest mistake of fact negatives criminal intent, when a defendant's acts would be lawful if the facts were as he supposed them to be. ^{Footnote 16}

A mistake of law, on the other hand, generally will not excuse the commission of an offense.

18

A defendant's error as to his authority to engage in particular activity, if based upon a mistaken view of legal requirements (or ignorance thereof), is a mistake of law. Typically, the fact that he relied upon the

erroneous advice of another is riot an' exculpatory circumstance. He is still deemed to have acted with a culpable state of mind. ^{Footnote 17}

Thus at first blush the trial judge's rejection of the defense proffered by the defendants'both in his pre-trial order and in his instruction to the jury'seems legally sound. He advised the jury that if the defendants honestly believed a valid warrant had been obtained, this would constitute a mistake of fact which would render them innocent of a conspiracy to conduct a search in violation of the Fourth Amendment. If, in contrast, they simply believed, despite the absence of a warrant, that for reasons of national security or superior authority the break-in was legal, such a mistake of law would not excuse their acts. ^{Footnote 18}

B.

With all due deference to the trial judge, I must conclude that both charges were in fact incorrect, and that this error must be faced by the court on this appeal. The technical difficulty with the first instruction points up the deeper problem with the second.

A governmental search and seizure is not rendered lawful under the Fourth Amendment by the simple fact that a warrant has been obtained. The search is constitutionally proper only if the accompanying warrant is based upon legally sufficient probable cause. A factual mistake as to whether a warrant has been, obtained, therefore, would not necessarily excuse an unlawful search'because that search would not necessarily have been legal under the facts as the defendant believed them to "be." As" the District Court instructed the jury, only a mistake as to whether a valid warrant has been obtained would excuse the defendant's action, and that is a mistake of law. That the recipient of the warrant may have relied upon the opinion of a judge in determining that he had legally adequate probable cause to make a search does not, under traditional analysis, alter the situation. His mistake remains one of law, and, under a strict construction of the rule, will not excuse his unlawful act.

It is readily apparent that few courts would countenance an instruction to a jury'even assuming a criminal prosecution were brought against government agents in such a situation ^{Footnote 19} 'which advised that since the mistake in acting on an invalid warrant was one of law, it would not excuse the agent's unlawful search. It is neither fair nor practical to hold such officials to a standard of care exceeding that exercised by a judge. Moreover, although the basic policy behind the mistake of law doctrine is that, at their peril, all men should know and obey the law, ^{Footnote 20} in certain situations there is an overriding societal interest in having individuals rely on the authoritative pronouncements of officials whose decisions we wish to see respected. ^{Footnote 21}

For this reason, a number of exceptions to the mistake of law doctrine have developed where its application would be peculiarly unjust or counterproductive. ^{Footnote 22}

Their recognition in a particular case should give the defendant a defense similar to one based upon mistake of fact, I submit, with one important difference. His mistake should avail him only if it is objectively

reasonable under the circumstances. ^{Footnote 23}

mistake of a government agent in relying on a magistrate's approval of a search can be considered virtually per se reasonable. (The first instruction of the District Court, therefore, was incorrect only in characterizing a defense based upon the belief that a valid warrant had been obtained as one of fact, rather than as an exception to the mistake of law doctrine. ^{Footnote 24}

Similarly, if a private person is summoned by a police officer to assist in effecting an unlawful arrest, his reliance on the officer's authority to make the arrest may be considered reasonable as a matter of law. The citizen is under a legal obligation to respond to a proper summons and is in no position to second-guess the officer's determination that an arrest is proper. Indeed, it is society's hope in recognizing the reasonableness of a citizen's mistake in this situation to The encourage unhesitating compliance with a police officer's call. ^{Footnote 25}

Other situations in which a government official enlists the aid of a private citizen to help him perform a governmental task are not so obviously reasonable on their face. ^{Footnote 26}

If the official does not order the citizen to assist him, but simply asks for such assistance, the citizen is not under a legal compulsion to comply. ^{Footnote 27}

Also, if the circumstances do not require immediate action, the citizen may have time to question the lawfulness of the planned endeavor. Nevertheless, the public policy of encouraging citizens to respond ungrudgingly to the request of officials for help in the performance of their duties remains quite strong. Moreover, the gap (both real and perceived) between a private citizen and a government official with regard to their ability and authority to judge the lawfulness of a par-

ticular governmental activity is great. It would appear to serve both justice and public policy in a situation where an individual acted at the behest of a government official to allow the individual a defense based upon his reliance on the official's authority'if he can show that his reliance was objectively reasonable under the particular circumstances of his case.

C.

This brings us to the District Court's second instruction to the jury. Although the defendants characterized their mistake as to Hunt's authority as one of fact, rather than law, 28 they requested an instruction which substantially coincides with my view of the proper test: [I]f you find that a defendant believed he was acting out of a good faith reliance upon the apparent authority of another to authorize his actions, that is a defense to the charge in Count 1, provided you find that such a mistake by a defendant was made honestly, sincerely, innocently and was a reasonable mistake to make based upon the facts as that defendant perceived them.

29 The District Court refused this instruction, regardless whether denominated a mistake of fact or an exception to the doctrine of mistake of law, and advised the jury simply that a mistake as to the legality of an unlawful search was no excuse.

30

It is clear from the above discussion of the search innocently conducted under an invalid warrant that the court's instruction did not state the law, and that a mistake as to the legality of an unlawful search may sometimes be an excuse. The trial judge can justify such an instruction in this context only if there is no legal possibility of equating the reliance of Barker and Martinez on Hunt's apparent authority with the reliance of a police officer on a judicial

28.

See note 24 supra.

29.

Barker Appendix at 104-05.

30.

Tr. 2525. See note 6 supra.

31.

 407 U.S. 297, 321-22, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Barker and Martinez do warrant subsequently held invalid. And this will be true if and only if Barker and Martinez could not show both (1) facts justifying their reasonable reliance on Hunt's apparent authority and (2) a legal theory on which to base a reasonable belief that Hunt possessed such authority.

Barker and Martinez meet the test as to facts. There was abundant evidence in the case from which the jury could have found that the defendants honestly and reasonably believed they were engaged in a topsecret national security operation lawfully authorized by a government intelligence agency. They were enlisted for the breakin by a White House official, E. Howard Hunt, whom they knew as a long-time government agent with the CIA. They were told that the operation concerned national security involving "a traitor to this country who was passing . . . classified information to the Soviet Embassy." Further, their long experience with the CIA had taught the defendants the importance of complete reliance on, and obedience to, their supervisor. That they should be expected to operate on a "need-to-know" basis was neither unusual nor cause for inquiry.

Barker and Martinez likewise meet the test as to the legal theory on which Hunt could have possessed such authority. That the President had the authority to confer upon a group of aides in the White House "more authority than the FBI or CIA," was in 1971 and is now by no means inconceivable as a matter of law. I certainly do not assert that the President here actually did so act (see the court's opinion in Ehrlichman), nor do we in this case need to decide the question of Executive authority to conduct warrantless searches pertaining to foreign agents, which issue was left open by the Supreme Court in United States v. United States District Court (Keith).

31 not allege that they thought the President personally had authorized the operation, nor does the issue arise here as it does in Ehrlichman. Laymen Barker and Martinez would not be expected to have cognizance of the forty years' practice whereby foreign affairs surveillances were authorized without a warrant either by

What is so evident from the trial court's instructions and his previous legal memorandum, and likewise in the concurring statement of my colleague Judge Leventhal in Ehrlichman, is that neither the trial judge nor Judge Leventhal agree with the theory that the Chief Executive acting personally has a constitutionally conferred power, where the objects of investigation are agents or collaborators with a foreign nation, to authorize a visual or auditory search and seizure of materials bearing on the suspected betrayal of defense secrets, without securing a judicial warrant'in short, that in this very carefully defined area, ^{Footnote 32} there does exist a constitutional Chief Executive warrant. They may be right. But that is not the issue here for Barker and Martinez. The issue is whether, given undisputed facts as known and represented to them, it was reasonable in 1971 for Barker and Martinez to act on the assumption that authority had been validly conferred on their immediate superior. The trial judge and my colleague have been unable to restrain themselves from inferentially deciding the issue deliberately left open by the Supreme Court in Keith in 1972, and having done so then proceed to tax Barker and Martinez with a failure to have acted on their unestablished rationale in 1971.

That the President would have such power under the Constitution is and has always been the clear position of the Executive Branch. Significantly, the present Attorney General only recently commented on Keith to this effect: "In United States v. United States District Court, while holding that the warrant requirement of the Fourth Amendment applied in the domestic security field, the Court expressly stated that 'the instant case requires no judgment with respect to the activities of foreign powers, within or without this country.' (Emphasis the Attorney General's.) It is not without significance that the words of the Court focus on the subject matter of the surveillance, rather than on the physical location where it is conducted." ^{Footnote 33}

No court has yet ruled that the President lacks this prerogative in a case involving wiretapping of foreign agents or collaborators with a foreign power. ^{Footnote 34}

In the instant case, the Department of Justice, while supporting the Special Prosecutor on other issues, within the limits of a 300-word Memorandum, took the pains to state: In regard to warrantless searches related to foreign espionage or intelligence, the Department does not believe there is a constitutional difference between searches conducted by wiretapping and those involving physical entries into private premises. One form of search is no less serious than another. It is and has long been the Department's view that warrantless searches involving physical entries into private premises are justified under the proper circumstances when related to foreign espionage or intelligence (See U.S. Brief p. 45, n. 39). ^{Footnote 35}

Finally, on 19 February 1976, the Attorney General announced his decision, on the recommendation of the Deputy Attorney

General and the head of the Civil Rights Division, not to prosecute former CIA Director Richard Helms for his personally authorizing a 1971 break-in at a photographic studio as part of a national security violation investigation. ^{Footnote 36}

Helms, like the present defendants, was involved in a 1971 break-in to conduct a visual search for evidence of national security violations. The positions of both Helms and the present appellants rest upon good faith belief that their warrantless physical intrusions were legally authorized. Helms' belief, which led the Justice Department to decline prosecution, was that a statute authorized him to ignore the commandments of the Fourth Amendment. Barker's and Martinez's belief was that there was authorization within the White House for this intrusion relating to national security'a legal theory which, if valid, would be of constitutional rather than merely statutory dimensions. Though both were mistakes of law, appellants' view thus appears to be supported by sounder legal theory than that of Helms, who seems to assort that a statute can excuse constitutional compliance. Yet even in the case of Helms, the Attorney General concluded that any prosecution for the physical search would be inappropriate.

The trial court rejected the pleas of appellants Barker and Martinez that they should have been allowed a defense on proof of reasonable, though mistaken, belief that their actions were duly authorized by an organization "at the White House level . . . above the FBI and the CIA." Either the Attorney General was wrong on 19 February 1976 when he declined prosecution of Director Helms, or the trial judge here was wrong when he barred the evidence and jury instruction which might have acquitted Barker and Martinez. I believe, as set forth in the previous nineteen pages, that the trial judge was wrong and the Attorney General right. But even if I am in error on this, of one thing I am certain: In 1971 there was not in the United States of America one Fourth Amendment for Richard Helms and another for Bernard Barker and Eugenio Martinez.

As to the reasonableness of the legal theory on which Barker's and Martinez's actions rest, they thus have at least the posi-

tion of the Attorney General behind them.

This is not to hold here that the position is correct, but surely two laymen cannot be faulted for acting on a known and represented fact situation and in accordance with a legal theory espoused by this and all past Attorneys General for forty years. It is in implicit recognition of this that Judge Leventhal feels obliged to attempt to undermine the theory on the merits ^{Footnote 37} to distinguish between wiretapping and physical entry; according to Judge Leventhal, the first perhaps constitutionally granted to the President, the second never. ^{Footnote 38}

Since the issue here is not the correctness of the legal theory, but the reasonableness in 1971 of acting consonant with it, and since the Department of Justice addressed the issue to this court in only one paragraph, a brief reply to Judge Leventhal may suffice: (1) a physical trespass is usually necessary to install a wiretap, whether the tap is authorized by the Judiciary or the Executive; (2) such physical trespasses have repeatedly been authorized by judges, Presidents, and Attorneys General; (3) they will continue to be so authorized until the Supreme Court rules otherwise; (4) what is the constitutional difference between a physical entry (Presidentially authorized) for the purpose of an auditory search (wiretap) and a physical entry (Presby trying identially authorized) for the purpose of a visual search (photographing documents)? What is the constitutionally relevant distinction between surreptitiously listening to (or recording) a citizen's spoken words and looking at (or photographing) his written words? (5) If there is no difference, then when the Supreme Court reserved the question of wiretapping (auditory searches) in Keith, did it not also logically and necessarily reserve the same issue in regard to visual searches? We all know that physical entry for the purpose of auditory search has been authorized by President and Attorney General

for forty years in national security related cases. It is the constitutional validity of this which the Supreme Court has never voided but specifically reserved in Keith. We all know (or suspect) that physical entry for the purpose of visual search has been authorized by President and Attorney General for many years in national security related cases. It is the constitutional validity of this which the Attorney General reserved in one paragraph of his two-page memorandum in this case, but which has never reached the Supreme Court. Unper39.

It can be readily agreed that the framers of the Fourth Amendment were primarily concerned with physical intrusions by governmental officials into the sanctity of the home. It is extremely doubtful, however, that this tells us anything about how they would have regarded electronic intrusions. Not being blessed with the telephone, they never considered the problem of wiretaps. A good argument can be made that electronic, "non-trespassory" searches are more intrusive than their "trespassory" counterparts. United States v. Smith, 321 F.Supp. 424 (D.D.C.Cal.1971), reasoned: [Electronic surveillance is perhaps the most objectionable of all types of searches in light of the intention of the Fourth Amendment. It is carried out against an unsuspecting individual in a dragnet fashion, taking in all of his conversations whether or not they are relevant to the purposes of the investigation and continuing over a considerable length of time. If the government's