UNITED STATES v. BARKER, 546 F.2d 940 (D.C. Cir. 1976)

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 June 18, 1975.
Decided May 17, 1976.

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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.

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

[1] 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

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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.

[2] 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. Citin 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 ___ of 178 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).

[3] 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.

[4] 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.

[5] 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 long-standing Justice Department view that the President may authorize warrantless searches related to foreign espionage or intelligence. (Wilkey op. at ___-___ of 178 U.S.App.D.C., at 949-953 of 546 F.2d).

[6] 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).

[7] The convictions are accordingly REVERSED.

[8] 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.

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Before LEVENTHAL and WILKEY, Circuit Judges, and MERHIGE,[*]
United States District Judge for the Eastern District of Virginia.

PER CURIAM:

[9] 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:

[10] 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.

[11] I. FACTS
[12] 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.[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.

[13] 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.

[14] 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.”

[15] 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

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

[16] 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.

[17] 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.

[18] 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.

[19] 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.”[3]

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

[21] II. LEGAL ISSUES
[22] 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.

[23] 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.[4]

[24] Second, at the end of the trial, the District Court rejected the defendants’ proposed instructions setting forth their theory of the case.[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

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to the legality of such an operation was no defense.[6]

[25] 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 i Ehrlichman analyzes this second argument in detail,[7] a summary here may be helpful to distinguish the two arguments.

[26] III. THE “SPECIFIC INTENT” REQUIREMENT OF 18 U.S.C. § 241
[27] 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.[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.

[28] 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,[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 th 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.

[29] 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

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of section 241.[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, Anderson v. United States.[11] In that case, 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.[12]

[30] 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.[13]

[31] 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.

[32] IV. THE DEFENSE OF GOOD FAITH, REASONABLE RELIANCE ON APPARENT AUTHORITY A.
[33] 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 th 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.”[14]

[34] 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.[15] A mistake of law, on the other hand, generally will not excuse the commission of an offense.[16] 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

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erroneous advice of another is not an exculpatory circumstance. He is still deemed to have acted with a culpable state of mind.[17]

[35] 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.[18]

B.
[36] 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.

[37] 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.

[38] 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[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,[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.[21]

[39] For this reason, a number of exceptions to the mistake of law doctrine have developed where its application would be peculiarly unjust or counterproductive.[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 i objectively

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reasonable under the circumstances.[23] The 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.[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 encourage unhesitating compliance with a police officer’s call.[25]

[40] 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.[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.[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 particular

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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.
[41] 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]

[42] 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]

[43] 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 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.

[44] 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 top-secret national security operation lawfully authorized by a government intelligence agency. They were enlisted for the break-in 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.

[45] 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]

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[46] 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,[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.

[47] 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.”[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.[34]

[48] 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).[35]

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

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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.[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 assert 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.

[50] 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.

[51] As to the reasonableness of the legal theory on which Barker’s and Martinez’s actions rest, they thus have at least the position

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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[37] by trying to distinguish between wiretapping and physical entry; according to Judge Leventhal, the first perhaps constitutionally granted to the President, the second never.[38]

[52] 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 (Presidentially 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?

[53] We all know that physical entry for the purpose of auditory search has been authorized by President and Attorney General

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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. Unpermitted physical entry into a citizen’s dwelling is no doubt the core of the Fourth Amendment prohibition against unreasonable searches and seizures,[39] but physical entry for an auditory or visual search may stand on the same footing, whether constitutionally firm or infirm.[40]

[54] That auditory and visual searches and physical entry to effect them stand on the same footing, is what the Department of Justice memorandum maintained. It also stated that both are valid in the strictly limited espionage and intelligence area. Afte Katz[41] in 1967 ruled out completely

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the patently untenable distinction between trespassory and non-trespassory wiretaps and held that the application of the Fourth Amendment could not turn on the presence or absence of a physical intrusion, it would appear arguable that physical entry for either an auditory or visual search for material related to an agent or collaborator with a foreign nation, if authorized by the President or Attorney General, would be valid under the Executive’s constitutional foreign affairs powers.

[55] This court need not pass and does not pass on the correctness of the Attorney General’s position. I do think that defendants Barker and Martinez were entitled to act in objective good faith on the facts known to them in regard to Hunt’s position and implicitly on the validity of a legal theory, still to be disproved, which has been vigorously espoused by President and Attorney General for the last forty years. I think it plain that a citizen should have a legal defense to a criminal charge arising out of an unlawful arrest or search which he has aided in the reasonable belief that the individual who solicited his assistance was a duly authorized officer of the law. It was error for the trial court to bar this defense in the admission of evidence and instructions to the jury, and the convictions must accordingly be

[56] Reversed.

MERHIGE, District Judge:

[57] While I generally concur with the positions taken by my Brothers with respect to the “specific intent” requirement of 18 U.S.C. § 241, I am not, despite my concurrence with the results reached by Judge Wilkey, willing to fully subscribe to the views expressed by him in his analysis of the mistake of law issue. Our differences arise from my inability to acquiesce in the broad framework inherent in his analysis. My views in this regard follow:

[58] Defendants Barker and Martinez rest their appeal on the district court’s refusal to instruct the jury that a “good faith reliance upon the apparent authority of another to authorize [their] actions” is a defense to the charge of conspiracy under Title 18 U.S.C. § 241. The district judge advised the jury that a mistake of law is no excuse, and, therefore, that a mistake as to the legality of the search in issue was not a defense to the charges contained in the indictment. In that regard, the district judge was applying the general rule on mistake of law that has long been an integral part of our system of jurisprudence. See, e.g., Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) quoting Shevlin-Carpenter Company v. Minnesota, 218 U.S. 57, 68, 30 S.Ct. 663, 54 L.Ed. 930 (1910). See generally Hall Seligman, Mistake of Law and Mens Rea, 8 University of Chicago Law Review 641 (1941); Keedy, Ignorance and Mistake in the Criminal Law, 22 Harv.L. Rev. 75 (1908); Perkins, Ignorance and Mistake in Criminal Law, 88 Univ. of Pa.L.Rev. 35 (1939). The most commonly asserted rationale for the continuing vitality of the rule is that its absence would encourage and reward public ignorance of the law to the detriment of our organized legal system, and would encourage universal pleas of ignorance of the law that would constantly pose confusing and, to a great extent, insolvable issues of fact to juries and judges, thereby bogging down our adjudicative system. See United States v. Barker, 168 U.S.App.D.C. 312, 514 F.2d 208, 230-32 (1975, Bazelon, Chief Judge concurring), Hall Seligman, supra at 646-51. The harshness of the rule on the individual case is responded to by either or both of two thesis: individual justice and equity is out-weighed by the larger social interest of maintaining a public knowledge about the law so as to discourage and deter “illegal” acts; and, as discussed by Judge Leventhal in his view of this case, the rule is subject to mitigation by virtue of prosecutorial discretion, judicial sentencing, executive clemency, and/or jury nullification.[1] E.g.,
Perkins, supra at 41.

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[59] Exceptions to the rule, however, have developed in situations where its policy foundations have failed to apply with strength, and alternative policy consideration strongly favor a different result. The exceptions have been both statutory, e. g., Act of August 22, 1940, § 49, 15 U.S.C. § 80a-48; Public Utility Holding Company Act of 1935, § 29, 15 U.S.C. § 79z-3, and judicial E.g., United States v. Mancuso, 139 F.2d 90 (3d Cir. 1943) Moyer v. Meier, 205 Okl. 405, 238 P.2d 338 (1951); Anno., 29 A.L.R.2d 825 (1953). See also Model Penal Code §§ 2.05(3), 3.07(4)(a). The instant case fits the pattern of a set of circumstances that has been recognized by some, and that in my view should be endorsed by this Court as an exception to the general rule. Defendants Barker and Martinez contend that they were affirmatively misled by an official interpretation of the relevant law, and are entitled to an instruction to that effect, permitting the jury to assess the reasonableness and sincerity of their alleged reliance.

[60] The Model Penal Code states the defense as follows:

A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: . . . (b) he acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in (i) a statute or other enactment; (ii) a judicial decision, opinion or judgment; (iii) an administrative order or grant of permission; or (iv) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense. § 2.04(3)(b).

[61] See also Proposed New Federal Criminal Code, Final Report of a National Commission on Reform of Federal Criminal Laws § 610 (1971). The rationale of the section is well illustrated by the case of United States v. Mancuso, 139 F.2d 90 (3d Cir. 1943). The legal issue therein was whether a defendant could be punished for failure to obey an order made by a local draft board when its issuing of such an order to the defendant was interdicted by a judicial decree which was itself, erroneous and subject to reversal. The court in that case stated:

We think the defendant cannot be convicted for failing to obey an order, issuance of which is forbidden by the court’s injunction. While it is true that men are, in general, held responsible for violations of the law, whether they know it or not, we do not think the layman participating in a lawsuit is required to know more than the judge. 139 F.2d at 92. (Footnote omitted)

[62] The introduction of an “official” source for an individual’s reliance on a mistaken concept of the law in acting “illegally” significantly diminishes the strength of the policy foundations supporting the general rule on mistake of law, and adds policy considerations of grave import that would favor an apposite result. In my view, the defense is available if, and only if, an individual (1) reasonably, on the basis of an objective standard, (2) relies on a (3) conclusion or statement of law (4) issued by an official charged with interpretation, administration, and/or enforcement responsibilities in the relevant legal field. The first three issues are of course of a factual nature that may be submitted to a jury; the fourth is a question of law as it deals with interpretations of the parameters of legal authority.

[63] Exoneration of an individual reasonably relying on an official’s statement of the law would not serve to encourage public ignorance of law, for the defense requires that the individual either seek out or be cognizant of the official statement upon which he or she relies. Some knowledge of the law, verified by an independent and typically competent source, is required. Furthermore, pleas of ignorance of the law will neither be so universal nor so abnormally

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confusing to the fact-finder as to discompose the judicial process. The defense is precisely limited to be consistent with its policies, and it involves issues no more complex than those decided on a routine basis in other matters.

[64] Furthermore, the defense advances the policy of fostering obedience to the decisions of certain individuals and groups of individuals that society has put in positions of prominence in the governing structure — i. e., courts, executive officials and legislative bodies. While the policy is unquestionably strongest when applied to those bodies that apply or make law with the most apparent finality, i. e., legislatures and the courts, it has application as well to those in official positions that “interpret” the law in a largely advisory capacity, i. e.,
opinions of the United States Attorney General. The reasonableness of the reliance may dissipate if one depends on nonenforceable advisory opinions of minor officials however. The policy is limited by the actual existence of an appropriate “official(s)” and does not support an abrogation of the policies behind the general mistake of law rule if an individual places his or her reliance, though reasonable, in a stranger to public office erroneously believing him to be an official.[2]
Similarly, the defense does not extend to reliance on individuals, who although employed in a public capacity, have no interpretative or administrative responsibilities in the area associated with the legal concepts involved in the mistaken opinion or decision.

[65] The defense has been most commonly accepted when an individual acts in reliance on a statute later held to be unconstitutional,[3] or on an express decision of unconstitutionality of a statute by a competent court of general jurisdiction that is subsequently overruled.[4] Most jurisdictions will not permit a defense based on reliance upon the advice of counsel.[5] The defense, however, is not limited to those which have been most commonly accepted as I have heretofore made reference. It has been extended to cases of reliance on official advisory opinions. In State v. Davis, 63 Wis.2d 75, 216 N.W.2d 31 (1974), the defendant was exonerated on the basis of a reliance on erroneous advice of a county corporation counsel and assistant district attorney. In People v. Ferguson, 134 Cal. 41, 24 P.2d 965 (1933), reliance on the advice of the state corporation commissioner and deputy commissioners was held to excuse a violation of the state’s blue sky laws. See also Texas Co. v. State., 31 Ariz. 485, 254 P. 1060 (1927); State v. White, 237 Mo. 208, 140 S.W. 896 (1911) State v. Pearson, 97 N.C. 434, 1 S.E. 914 (1887). But see U.S. v. Mansavage, 178 F.2d 812 (7th Cir. 1949); Hopkins v. State, 193 Md. 489, 69 A.2d 456 (1949); Staley v. State, 89 Neb. 701, 131 N.W. 1028 (1911); State v. Foster, 22 R.I. 163, 46 A. 833 (1900).

[66] Arguments against extending the defense to reliance on the advice of government officials take a form of the following proposition: Minor government officials will have the ability to effectively “immunize” individuals from prosecution. In response, it must be noted that with respect to a particular statement, a government official is himself culpable if he knowingly mistakes the law. Hence he may proffer mistaken advice without retribution only until he discovers

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its invalidity. To argue further, that incompetent or dishonest minor officials may exist in numbers serious enough to question reliance on their decisions or interpretations, inherently characterizes those public servants upon whom we must depend for the ultimate success of the operation of our government, as suspect. I for one, am not willing to assume that the incidence of incompetent, insensitive or dishonest public officials is significant enough to dispute the premise that in general, public officials merit the respect of the public. Furthermore, our citizenry are not so naive as not to recognize that all of our institutions are susceptible of being made up of both savory and unsavory individuals.

[67] Still some will have cause to be concerned about the extent of the exception to the general rule. Judge Leventhal notes that “[t]he potentially broad range of illegal activities that a government official might request a private citizen to do, would make it impossible to rely on the educational value that normally inheres when a mistake of law is recognized as an excuse in one case that serves to define them all for similarly circumstanced defenders in the future.” The argument is one of great appeal. Nevertheless, it smacks of a distrust of public officials yet to so categorize it may be unfair. In essence, it asserts that since there exists a large number of public officials who may well be asked to advice or decide on a myriad of legal problems, that many mistaken judgments may be advanced, and members of the public should be required before acting in accordance therewith to examine those interpretations at their peril. The argument, assuming as I do that it is not directed at corrupt officials, requires the individual citizen to be more cognizant of and have a better understanding of the law than a public official who is responsible for and specifically employed to make interpretations of the law in the relevant legal field. Such a burden is, in my view, unreasonable. Finally, it should be noted that the strength of the arguments premised upon the potential extent of the defense is mitigated by the requirement of objective reasonableness. If a public official’s opinion of the law is fairly outrageous, the jury may conclude that a reasonable man would take appropriate steps to verify it prior to reliance thereon.

[68] Applying the defense to the facts of this case, the record discloses sufficient evidence of reliance on an official interpretation of the law for the matter to have been submitted to the jury. Barker and Martinez assert that they relied on Hunt’s authority as delegated from an intelligence superstructure controlled by the White House, and firmly believed that they were acting in a legal capacity. The Executive Branch of the United States Government is vested with substantive responsibilities in the field of national security, and decisions of its officials on the extent of their legal authority deserve some deference from the public.[6] A jury may well find that John Ehrlichman, then Assistant to the President for Domestic Affairs, expressed or implied that the break-in of Dr. Fielding’s office was legal under a national security rationale, and that Hunt, as an executive official in a go-between capacity, passed the position on to the defendants, which they, acting as reasonable men, relied upon in performing the break-in.[7]

[69] Accordingly, while I concur with Judge Wilkey that the jury should have been instructed on a limited mistake of law defense, I believe any such instruction should, in the event of a retrial be couched consistent with the views herein expressed.

[70] LEVENTHAL, Circuit Judge (dissenting):

[71] This opinion considers the appeals of Bernard L. Barker and Eugenio R. Martinez,

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who were convicted of conspiracy in violation of 18 U.S.C. § 241, and sentenced to three years probation. They were charged, along with co-defendants John D. Ehrlichman and G. Gordon Liddy, with conspiracy to enter without lawful authority the offices of Dr. Lewis J. Fielding on September 3, 1971, in order to search for confidential information concerning his patient, Daniel Ellsberg, thereby injuring Dr. Fielding in his Fourth Amendment right to be secure against unreasonable searches and seizures.

[72] Barker and Martinez present considerations and issues that differ in some respects from those discussed in the opinions issued today in the cases of Ehrlichman and Liddy. I would reach the same result, of affirmance. Whatever equities may pertain to the case of these defendants of Cuban origin, who claim that their actions reflect their patriotism, were taken into account when the trial judge limited their sentence to a modest probation. Their quest for complete exculpation does not entitle them, in my view, to a ruling that the trial judge was mistaken as to the pertinent principles of law.[1]

[73] My opinion explaining why I dissent from the reversals contemplated by Judges Wilkey and Merhige, is cast in the conventional form of opinions that present first a statement of facts, then an orderly discussion of the legal principles more or less seriatim. This case also calls, I think, for an opening exclamation of puzzlement and wonder. Is this judicial novelty, a bold injection of mistake of law as a valid defense to criminal liability, really being wrought in a case where defendants are charged with combini to violate civil and constitutional rights? Can this extension be justified where there was a deliberate forcible entry, indeed a burglary, into the office of a doctor who was in no way suspected of any illegality or even impropriety, with the force compounded by subterfuge, dark of night, and the derring-do of “salting” the office with nuggets to create suspicion that the deed was done by addicts looking for narcotics?

[74] Judge Wilkey begins to cast his spell by describing Barker and Martinez as “footsoldiers” here in court again. Of course, they are here this time for an offense that took place the year before the notorious 1972 Watergate entry that led them to enter pleas of guilty to burglary. Every violation of civil rights depends not only on those who initiate, often unhappily with an official orientation of sorts, but also on those whose active effort is necessary to bring the project to fruition. To the extent appellants are deemed worthy of sympathy, that has been provided by the probation. To give them not only sympathy but exoneration, and absolution, is to stand the law upside down, in my view, and to sack legal principle instead of relying on the elements of humane administration that are available to buffer any grinding edge of law. That this tolerance of unlawful official action is a defense available for selective undermining of civil rights laws leads me to shake my head both in wonder and despair.

[75] I. FACTUAL BACKGROUND
[76] Barker and Martinez are both American citizens.[2] They fled Cuba for Miami, Florida, after Fidel Castro came to power. Both Barker and Martinez have been covert agents for the Central Intelligence Agency. Martinez worked for the CIA from 1959 until 1972, and was involved in infiltrating Cuba and supplying arms and ammunition to Cuba from a United States base. Barker

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worked undercover in Cuba before his arrival in Miami in 1960. He was terminated in 1966. During their CIA employment both Barker and Martinez were involved with the Bay of Pigs operation, and Barker’s immediate superior for that venture was E. Howard Hunt, known as “Eduardo” in Miami’s Cuban-American Community.

[77] Hunt, along with Egil Krogh, David Young and G. Gordon Liddy, composed the White House “Room 16” Unit. The unit was established under the supervision of John Ehrlichman, then Assistant to the President for Domestic Affairs, to investigate and stop leaks of classified information. Publication of the “Pentagon Papers” was the catalyst for the Room 16 unit’s formation, and obtaining information on the source of that famous leak — Daniel Ellsberg — became the unit’s primary concern. After Ellsberg’s psychiatrist, Dr. Fielding, refused to be interviewed by FBI agents, the unit decided to obtain copies of Ellsberg’s medical records by a surreptitious entry of Dr. Fielding’s office.

[78] To avoid White House employee involvement in the actual search, Hunt recruited Barker, and through Barker, Martinez and Felipe De Diego.[3] Barker testified (Tr. 2197ff) that Hunt said he was in an “organization that had been created in the White House level — this organization he described as a sort of superstructure that was above the FBI and the CIA” and “had been formed because the FBI was tied by Supreme Court decisions . . . and the Central Intelligence Agency didn’t have jurisdiction in certain matters.” He spoke of “some kind of upheaval in the intelligence community in Washington” and asked if Barker would like to become operational again, which Barker termed a “very happy thing to us.”

[79] While conducting these negotiations, Hunt represented himself accurately as working in the White House.[4] We may assume for present purposes that a jury might reasonably find that Barker and Martinez did, as they later put it, believe or assume that Hunt was a “CIA man” in the White House, notwithstanding contrary indications.[5] Martinez was aware that his participation in the plan might have been illegal for a “normal citizen.” (Tr. 2170).

[80] On September 2, 1971, Hunt and Liddy met Barker, Martinez and De Diego at a hotel in Beverly Hills, California. Hunt informed the defendants that they were to enter Dr. Fielding’s office and photograph the files of one of his patients. They were told that Dr. Fielding was not himself the subject of investigation. There was no discussion of authorization for the entry and search. The group met the following day, and Hunt showed Barker and Martinez identification papers and disguises obtained from the CIA.

[81] On the evening of September 3, Barker and De Diego, dressed as delivery men, delivered a valise containing photographic

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equipment to Dr. Fielding’s office. Later that evening they and Martinez, having been told that the “Ellsberg” file was the one they were to search for and photograph, entered Dr. Fielding’s office and rifled the files. They entered by force, breaking the lock on the office door, and also used force, a crowbar, to open Dr. Fielding’s file cabinets. Although the plan was to accomplish entry without force, it also included the alternative that in the event force had to be used, Barker and his colleagues were to make the entry look as if it had been by an addict seeking drugs, and accordingly, before leaving, they scattered pills about the office. The next day Barker and Martinez returned to Miami, having failed to locate the Ellsberg records.

[82] As a defense to the March 7, 1974, indictment for conspiring to violate Dr. Fielding’s Fourth Amendment rights, Barker and Martinez sought to discover and present evidence as to the reasonableness of their belief in Hunt’s authority to conduct the Fielding operation. Their motion for discovery and their proposed instructions based on the defense of reasonable reliance on Hunt’s apparent authority were denied by the District Court.[6]
At trial both defendants were nevertheless given latitude to testify extensively about the circumstances underlying their involvement in the Fielding break-in. The jury was advised that to convict they had to find the purpose of the break-in was to enter and search Dr. Fielding’s office without a warrant or permission, and that the conspirators were governmental employees or agents acting for governmental rather than purely personal purposes. The court further instructed the jury that a mistake of fact may constitute a defense to the conspiracy charge, so that if a defendant honestly believed a warrant had been obtained, this mistake of fact would render him innocent, because it would not be said he intended a warrantless search.[7]

[83] II. AFFIRMATIVE DEFENSES
[84] The defendants’ principal argument on appeal is the claimed error of the District Court in refusing them a defense based upon their good faith reliance on Hunt’s apparent authority. They say the mens rea required for a violation of section 241 was negatived by a mistake of fact “coupled with” a mistake of law.[8] They amplify: “The mistake of fact was the belief that Hunt was a duly authorized agent; the mistake of law was that Hunt possessed the legal prerequisites to conduct a search — either probable cause or a warrant.”[9] In the alternative, they contend that Hunt’s inducement estops the government from prosecuting under entrapment principles. I turn to the entrapment question first.

[85] A. Entrapment
[86] The defense of entrapment, developed as a construction of legislative intent, has been evolved for the case of an otherwise innocent person who has been induced to commit a crime by a law enforcement agent whose purpose was prosecution. Recognition of the defense works as an estoppel on the government, preventing it from reaping the benefits of the prosecution and conviction it sought to obtain by unconscionable means.[10]

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[87] The entrapment rationale is wholly inapplicable to this case. In recruiting Barker and Martinez, Hunt was not acting as a law enforcement official seeking to induce their participation in order to have them prosecuted and punished. He instead sought their aid for other governmental ends which his unit judged best served by illegitimate invasion of the rights of others. The true entrapment defense seeks to prevent government officials from realizing benefits from unlawful inducement, and thereby to deter official illegality. Extension of the defense to reach Hunt’s inducement of Barker would serve to reinforce the illegal conduct of the government agent, who could then delegate the “dirty work” to private citizens shielded from responsibility by the defense that they had been recruited by a government agent.[11]

[88] B. The Claim of Mistake of Fact
[89] It is settled doctrine that an honest mistake of fact generally negatives criminal intent, when a defendant’s acts would be lawful if the facts were as he supposed them to be.[12] This is considered a matter of essential fairness.[13] Even had the facts been as Barker and Martinez claim now to have supposed them, however, their Fielding break-in would still have contravened the clear requirements of the Fourth Amendment.

[90] Classifying mistakes as either of fact or of law is not always an unambiguous task.[14] At trial, defendants offered an instruction that rather elusively muddled the two types of mistakes, and sent them in an incorrect context as to the “specific intent” required for the crime.[15] The brief before this court attempts to correct that prior lack of clarity

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by advancing the proffered defense with a closer attention to the discrete policies underlying the mistake of fact and mistake of law defenses. It may be convenient to take up the appellants’ defense in terms of the recognized doctrinal distinctions before turning to the applicability of exceptions.

[91] For purposes of this appeal it can be assumed that Barker and Martinez undertook the Fielding break-in while believing that the ultimate “target” was a foreign security risk for the United States. The defendants do not simply claim that they were factually mistaken about the purpose of their mission, however; they also urge that their error in believing that Hunt was a “duly authorized” agent was a factual error. Although defendants claim to maintain a distinction between mistake of fact and mistake of law, this contention entirely erodes the distinction. Defendants did not claim, or offer to prove a belief, that the President or Attorney General personally authorized the break-in; nor did they seek to advance any other specific factual basis for the belief that Hunt was “duly authorized.” They certainly did not offer to prove that they believed John Ehrlichman “expressed or implied that the break-in of Dr. Fielding’s office was legal under a national security rationale.” (Merhige, concurring at ___ of 178 U.S.App.D.C., at 957 of 546 F.2d). They did not seek outside advice about the factual requirements necessary for such an undertaking. The appellants do not claim they mistakenly believed they were acting under a warrant. Nor do they claim any other representation of fact, express or implied, or mistake of fact.

[92] Martinez says he believed that Hunt was still employed by the CIA. He has apparently put himself in a no-lose position on this point, for when his CIA case officer replied to his inquiry that Hunt was not then employed by CIA, he assumed this answer was a ruse or cover. But this mistake of fact — whether reasonable or not — was irrelevant, for even if Hunt had then been employed by CIA, his employment would not have validated the break-in and search.

[93] At bottom, the defendants’ “mistake” was to rely on Hunt’s White House and CIA connections as legally validating any activities undertaken in the name of national security. They had been told that the matter was something that could not be handled by the FBI because of court decisions or by the CIA because of its limited jurisdiction. Martinez conceded in testimony that he was aware that the operation might have been illegal for a “normal citizen” (Tr. 2170). Barker and Martinez did not consider themselves “normal” because of their putative status as CIA-White House operatives. Their mistake as to who or what the law authorized or required cannot be repackaged as a mistake of “fact” that Hunt had been duly authorized.

[94] It can be assumed for present purposes that defendants mistakenly believed they were entering Dr. Fielding’s office in order to get information on some other person who was a “traitor.” However, their actions taken pursuant to that mistaken belief did not conform with the law’s requirements. The fundamental right to be free from warrantless physical searches has been clear since Boyd v. United States[16] recognized that such cases as Entick v. Carrington[17]

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so intensely affected the framers that those cases have long been taken “as sufficiently explanatory of what was meant by unreasonable searches and seizures.”[18] Even when the Executive acts to avert foreign security dangers, no Federal judge, indeed no Department of Justice submission, has ever suggested that action otherwise clearly prohibited by the Fourth Amendment would be valid in the absence of explicit authorization by the President or Attorney General. No generally delegable power to authorize such searches is reconcilable with the requirements of the Fourth Amendment.[19]

[95] On the separate issue of whether physical searches can properly be included in a foreign security exception to the warrant requirement, the Special Prosecutor says No, while the Attorney General has filed a short memorandum saying Yes, if specifically authorized by the President or the Attorney General.[20] The fact that defendants do not assert a belief that the President or Attorney General authorized their violation of Dr. Fielding’s fundamental right to be free of warrantless government forays into his office takes this case outside the mistake of fact defense, for whatever defendants’ other beliefs as to the facts, they would not, if true, establish exculpation.

[96] In an earlier case involving these same defendants, and roughly the same defense as that advanced here, Judge Wilkey rejected the argument that “an error as to the legality of a particular activity, even if based upon the assurances of a governmental official” can be treated as a mistake of fact. He recognized the importance of the issue, for a mistake of fact defense would justify conduct whenever the mistake was honest whether reasonable or not, while the mistake of law defense, if held applicable, justifies conduct only if the mistake is reasonable United States v. Barker, (dissent) 168 U.S.App.D.C. 312, 514 F.2d 208, 264-68 n. 76 (1975). I subsequently consider whether the mistake of law defense should be expanded to reach this case. But certainly this should not be done behind the screen that what is involved is a mistake of fact. Defendants cannot avoid the limitations that have historically shaped exculpations because of legal mistake, by characterizing as factual error their belief that a generalized aura of executive branch authorization warranted their nighttime intrusion.

[97] C. Mistake of Law — Generally
[98] Viewed as a mistake of law, the defense raised by defendants requires us to confront a fundamental tension in our criminal law. The criminal law relies in general on the concept of culpability or blameworthiness as a prerequisite to guilt, expressed as a requirement of mens rea.[21] The Supreme

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Court has, however, rejected Blackstone’s formulation that a “vicious will” is necessary to constitute a crime, see Lambert v. California, 355 U.S. 225, 228, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957), and as a society we have stopped short of requiring a subjective behavioral assessment of each offender’s individual stock of knowledge about the law and its applicability.[22]
Instead, “the rule that `ignorance of the law will not excuse’ . . . . is deep in our law.” Lambert v. California, 355 U.S. at 228, 78 S.Ct. at 243, quoting Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 68, 30 S.Ct. 663, 54 L.Ed. 930
(1910). The Supreme Court has generally refused to recognize a defense of ignorance of, or mistake as to, the requirements of the law violated, even when the mistake refutes any subjective moral blameworthiness in the offender. See, e.g., United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975) United States v. International Minerals Chemical Corp., 402 U.S. 558, 563, 91 S.Ct. 1697, 29 L.Ed.2d 178 (1971) United States v. Freed, 401 U.S. 601, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1971); United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 88 L.Ed. 48
(1943).[23] Similarly, the A.L.I.’s Model Penal Code § 2.02(9) defines the requirements of culpability so that “neither knowledge nor recklessness nor negligence as to whether conduct constitutes an offense or as to the existence, meaning or application of the law determining the elements of an offense is an element of such offense unless the definition of the offense or the Code so provides.”[24]

[99] The general principle that rejects the defense of ignorance of the requirements of the criminal law, or of mistake as to those requirements, is not a casual or happenstance feature of our legal landscape. It formed a part of English and canon law for centuries and all the time with recognition that it diverged from an approach of subjective blameworthiness.[25] Its continuing vitality stems from preserving a community balance, put by Holmes as a recognition that “justice to the individual is rightly outweighed by the larger interests on the other side of the scales.”[26] Great minds like Holmes and Austin have struggled with the tension between individual injustice and society’s need and have concluded that recognition of the mistake of law defense would encourage ignorance rather than a determination to know the law, and would interfere with the enforcement of law, because

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the claim would be so easy to assert and hard to disprove.[27]

[100] In some aspect the doctrine may be viewed as a doctrine of negligence, holding individuals to minimal conditions of responsibility and making acting without legal knowledge blameworthy for the failure to obtain that knowledge.[28] Hall suggests in addition that the rationale can be expressed in terms of ethical policy — that the criminal law represents certain moral principles and that to recognize ignorance or mistake of law as a defense would contradict those values.[29] Still, it must in the last analysis be recognized that at its core, the basic mistake of law doctrine imposes liability even though defendant acted in good faith and made a “reasonable” mistake. Otherwise, criminal statutes would be in suspense on any point not authoritatively settled.[30] In a particular case adherence to a generally formulated rule may seem to work injustice, but the jurists pondering the general doctrine have both deemed such individual hardships outweighed by the common good, and have taken into account that certain features of the overall system of criminal justice permit amelioration and relief.[31] These flexible opportunities for mitigating the law’s impact — through prosecutorial discretion,[31a] judicial sentencing, and executive clemency — avoid the necessity of bending and stretching the law, at the price of undermining its general applicability.

[101] Every mature system of justice must cope with the tension between rule and discretion. Rules without exceptions may grind so harsh as to be intolerable, but exceptions and qualifications inflict a cost in administration and loss of control. The balance struck by the doctrine with which we are now concerned provides for certain rigorously limited exceptions (inapplicable to defendants’ claim) but otherwise leaves amelioration of harsh results to other parts of the system of justice. In my view, history has shaped a rule that works, and we should be slow to tinker. Consequently, defendants here must be held to a responsibility to conform their conduct to the law’s requirements. To hold otherwise would be to ease the path of the minority of government officials who choose, without regard

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to the law’s requirements, to do things their way, and to provide absolution at large for private adventurers recruited by them.

[102] D. Exceptions to the Mistake of Law Doctrine
[103] I do not discount defendants’ claims that their background, and particularly their previous relations with the CIA[32] and Hunt explain their good faith reliance on Hunt’s apparent authority and their consequent failure to inquire about the legality of the activities they were to undertake on his request.[33] I feel compassion for men who were simultaneously offenders and victims, and so did the trial judge when it came to sentencing. But testing their special circumstances against analogies they rely on to project a mistake of law defense, leads me to reject their claim to be relieved of personal accountability for their acts.

[104] 1. Claim of Good Faith Reliance on an Official’s Authority
[105] Appellants invoke the acceptance of good faith reliance defenses in the Model Penal Code. However, the American Law Institute carefully limited the sections cited to persons responding to a call for aid from a police officer making an unlawful arrest,[34] and to obeying unlawful military orders,[35] and specifically rejected the defense for other mistake of law contexts.[36] In both instances, the A.L.I. recognizes limited curtailment of the doctrine excluding a mistake of law defense on the ground that the actor is under a duty to act[37] — to help a police officer in distress to make an arrest when called upon, or to obey military orders. In each case, society has no alternative means available to protect its interest short of imposing a duty to act without a correlative duty to inquire about the legality of the act.[38] Punishing an individual for

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failure to inquire as to the lawful basis for the officer’s request would frustrate the effective functioning of the duly constituted police (and military) force and in its operation on the individual would compel a choice between the whirlpool and the rock.[39]

[106] There is no similar incapacity of the government to act to protect its ends when a citizen takes action when he is under no duty to do so. Thus under the Model Penal Code, a citizen who volunteers to assist another citizens, or volunteers to assist a police officer in making an unlawful arrest, cannot avail himself of the defense — available to a person responding to an officer’s call — that he participated without making an inquiry as to whether the arrest was lawful. The volunteer is exculpated only if he believed that the arrest was lawful and believed in the “existence of facts which, if they existed, would render the arrest valid.”[40] Thus, even if private citizen intervention appears socially desirable in a particular case, the citizen’s scope of action and protection in the event of mistakes are narrow, because, overall, forceful citizen enforcement of the law is susceptible of abuse[41] and mischief.

[107] Barker and Martinez were under no tension of conflicting duties comparable to that experienced by a soldier or citizen responding to orders. They had and claim no obligation to aid Hunt. Nor did they have a belief of fact rendering their voluntary assistance lawful within § 3.07(4), supra note 33. Nor is there a compelling social interest to be served in allowing private citizens to undertake extra-legal activities, acting simply on the word of a government official. The purposes of the law in rejecting such a defense are underscored by the very kinds of extra-governmental, outside-normal-channels conduct that Barker and Martinez engaged in here. Government officials who claim to be seeking to implement the ends of government by bypassing the agencies and personnel normally responsible and accountable to the public transmit a danger signal. Barker and Martinez acted to help Hunt on his explanation that he sought their recruitment because the FBI’s “hands were tied by Supreme Court decisions and the Central Intelligence Agency didn’t have jurisdiction in certain matters.”[42] There is reason for the law to carve out limited exceptions to the doctrine negating defenses rooted in mistake of law, but the pertinent reasons have minimal weight, and face countervailing policies, when they are invoked for situations that on their face are outside the basic channels of law and government — in this case, requests for surreptitious or, if necessary, forcible entry and clandestine files search. These are plainly crimes, malum in se, unless there is legal authority. Citizens may take action in such circumstances out of emotions and motives that they deem lofty, but they must take the risk that their trust was misplaced, and that they will have no absolution when there was no authority for the request and their response. If they are later to avoid the consequences of criminal responsibility, it must be as a matter of discretion. To make the defense a matter of right would enhance the resources available to individual officials bent on extra-legal government behavior. The purpose of the criminal law is to serve and not to

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distort the fundamental values of the society.

[108] 2. Exception for Official Misstatements of Law
[109] Although defendants relied on the analogy to a police officer’s request for assistance, Judge Merhige votes to reverse on the ground that appellants could claim as a defense that a citizen has a right to take action in reliance on a government official’s assurance that such action is permissible. The Model Penal Code has addressed itself to that broad problem, and has approved a defense that is narrowly confined in order to protect social interests.[43] Its provision yields no excuse for defendants’ conduct. Section 2.04(3) of the Code provides a carefully and properly drawn recognition of a defense based on reasonable reliance on a statute, judicial decision, administrative order or “an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.” Mainly directed to the mala prohibita offenses, the categories protected “involve situations where the act charged is consistent with entire law-abidingness of the actor, where the possibility of collusion is minima . . .”[44]

[110] The section contemplates both accountability and responsible action on the part of the government official giving advice about the law. But defendants do not claim they received any advice, either express or implied, from Ehrlichman, and Hunt had only a ad hoc, undefined position in the White House.[45] He had no on-line enforcement or interpretative powers or responsibilities. His undifferentiated power stemmed solely from membership in a large White House bureaucracy.[46] The potential for official abuse of power would be greatly magnified if such a government official can recruit assistance from the general public, constrained neither by accountability guidelines guiding agency action under statutorily mandated powers, nor by the recruited citizen who, under the defendants’ formulation, would be under no duty to inquiry about the legality of the official’s request.[47]

[111] To stretch the official misstatement of law exception for the facts of this case is to undercut the entire rationale for its recognition as an exception. The Model Penal Code hedges in the defense to permit reliance only on an “official interpretation
of the public officer . . . charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.” (emphasis added). Certainly Hunt cannot sensibly be described as having been charged by law with responsibility for interpreting or enforcing either § 241, or the Constitution from which the violations of § 241 in this case sprang. Nor can it be said in any meaningful sense that he had the power to provide an official interpretation of the law. These restrictions on the applicability of the official statement exception did not arise haphazardly; they were deliberately drafted to allow, and indeed to promote, good faith reliance on official pronouncements with

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objective indicia of reliability — those made by officials specifically charged with interpreting or enforcing the specific law defining the specific offense charged against the defendant. A defense so confined has values for the law: It avoids punishing those who rely on a crystallized position taken by the officer or body charged by statute with interpreting the law in a particular area.[47a] The officer’s position in a channel of authority is readily identifiable; any mistakes he makes can be remedied by readily perceived and structured avenues of relief. There is no opening the door to justification for serious offenses based on unrecorded discourse from someone who has an undefined but high-sounding berth in the government.

[112] The “official interpretation” defense thus structured is a functional analogue of the defenses of reliance on a statute, judicial decision or administrative order. It is justified by its twin underlying assumptions that the official is one to whom authority has been delegated to make pronouncements in a field of law, and that the authority can be held accountable by explicitly grounding it in the hands of an identifiable public official or agency. So grounded, the interest of both private citizens and government is served by protecting actions taken in reliance on that interpretative authority. But none of these safeguards of regularity is present in this case. A staff man or even a lower echelon official of the White House may be taken as a man of presumptive standing and even influence, but not seriously as a source of official interpretation of law, much less of such matters as the validity of a stealthy breaking and entering. Even cases postulating a national security exception for wiretaps have never suggested more than that the President or the Attorney General could have authority to evaluate and authorize an exception. No claim of Presidential or Attorney General authorization has been made in this case. The official misstatement of law defense embodies a fundamental requirement that the erroneous interpretation be made by an official in fact possessing the power to make a binding interpretation; it is wholly inapplicable to a case like this, of a claim of reliance on a government official in an area in which he has no power to interpret. And it is blatant incongruity to stretch an escape clause for mistakes of law arising in the innately public business of official interpretations of law to immunize a secret conference for planning a stealthy entry into a private home or office.

[113] 3. The Inapplicability of Other Exceptions
[114] While a mistake of law may negative a specific element of certain crimes,[48] or may be accepted where the mistake pertains to a violation of purely civil law as contrasted with the requirements of the criminal law,[49] none of these carefully wrought exceptions have application to the case at bar. Defendants’ mistake of law did not pertain to some rule irrelevant to or remote from the criminal law. Nor does section 241 recognize a mistake of law defense or require a specific intent like the statute at issue in People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514 (1938), punishing a “willful” seizure of a person with “intent to [act], without authority of law.”

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[115] E. The “Specific Intent” Requirement of the Civil Rights Offenses
[116] This brings me to the question whether the civil rights offenses involved here are of such a character, either in terms of required intent or affirmative defense, as to make available an extension of criminal defenses to include mistake of law. I conclude, on the contrary, that this consideration reinforces the rejection of the proffered defense.

[117] The court is dealing here with violations of civil rights. We all agree that “the law is clear that Dr. Fielding’s Fourth Amendment rights were breached when the defendants broke into and searched his office without the requisite judicial authorization” and that they acted with “a purpose to invade constitutionally protected interests.” (Ehrlichman, 178 U.S.App.D.C. ___, at ___, 546 F.2d 910, at 928). Unless we are willing to undercut criminal enforcement of the civil rights offenses, it is entirely impermissible to stretch doctrines of mistake of law to reach the result of excusing that violation of Fourth Amendment rights. The majority excuses defendants’ conduct on their contention of mistaken reliance on official lawlessness — even though conspiracy for illegal government purposes with government officials is the gravamen of the offenses charged. What the reversals accomplish is an erosion of pertinent Supreme Court rulings rejecting contentions based on “specific intent.”

[118] Conviction under Section 241 requires that the offender acted with a “specific intent”[50] “to injure, oppress, threaten or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States . . .” This does not mean that he must have acted with subjective awareness that his action was unlawful; nor need the defendant have thought in constitutional terms while acting. See, e. g., Screws v. United States, 325 U.S. 91, 104-07, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945). It is enough that the constitutional right is clearly defined and that the conspirators intend to invade interests protected by the Constitution.[51]

[119] In essence, defendants Barker and Martinez claim that the destructive social impact wrought by their invasion of another’s civil rights is exonerated by the law so long as an individual is acting at the request of a government official and on his implication that he has legal authority. The price to society of tolerating reliance on the very official misconduct § 241 was directed against, forces us to reject defendants’ argument.[52]
As the Supreme Court made clear in Screws,[53] the scope and significance of the all-important civil rights criminal statutes are not to be cabined or cut down, either by expanding scienter requirements to include knowledge of law or by enlarging defenses based on ignorance or mistake of law. A private citizen must start with a beginning point in his understanding of what the law requires. Breaking and entering a home or office is malum in se
— a gross and elementary crime when done for personal reasons, a gross and elementary violation of civil rights when done with the extra capability provided by a government position. Defendants were charged and convicted of violating a clearly defined constitutional

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right.[54] They were not acting in an official law enforcement capacity. Cf. Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F.2d 1339 (2d Cir. 1972).[55] Their defense instead reduces to an arguable but untested speculation that their otherwise unlawful behavior would be vindicated by a foreign security exemption to the Fourth Amendment’s protections. In regard to subjective “good faith,” they are indistinguishable from any other criminal defendant who deliberately breaks the law in the mistaken expectation that he can assert a constitutional defense at trial or one who is civilly disobedient because his framework for moral action does not coincide with his society’s legal framework.[56] Such persons frequently act on a high plane of patriotism, as they view it, but that does not allow them to proceed in ignorance or disregard of the requirements of law.[57]

[120] III. CONCLUSION
[121] I do not propose to consider whether appellants were unreasonable in accepting a particular view of the law. In the first place, Barker and Martinez do not urge as justification that they had a specific view of the law, but rather that they are entitled to absolution because they relied on a government employee’s credentials and his assurance, by implication, that their action was lawful. Even so, one might well raise the question as to how appellants could reasonably believe that what they were doing was

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lawful when they were told they were called in because the action would have been unlawful for the F.B.I.

[122] The ultimate point is that appellants’ mistake of law, whether or not it is classified as reasonable, does not negative legal responsibility, but at best provides a reason for clemency on the ground that the strict rules of law bind too tight for the overall public good. Any such clemency is not to be obtained by tinkering with the rules of responsibility but must be provided by those elements of the system of justice that are authorized by law to adjust for hardship and to provide amelioration. We should refuse to cut away and weaken the core standards for behavior provided by the criminal law.[58] Softening the standards of conduct rather than ameliorating their application serves only to undermine the behavioral incentives the law was enacted to provide. It opens, and encourages citizens to find, paths of avoidance instead of rewarding the seeking of compliance with the law’s requirements. The criminal law cannot “vary legal norms with the individual’s capacity to meet the standards they prescribe, absent a disability that is both gross and verifiable, such as the mental disease or defect that may establish irresponsibility. The most that it is feasible to do with lesser disabilities is to accord them proper weight in sentencing.”[59]

[123] The sentence performed its proper function here. Our system is structured to provide intervention points that serve to mitigate the inequitable impact of general laws while avoiding the massive step of reformulating the law’s requirements to meet the special facts of one hard case. Prosecutors can choose not to prosecute, for they are expected to use their “good sense . . . conscience and circumspection” to ameliorate the hardship of rules of law.[60] Juries can choose not to convict if they feel conviction is unjustified, even though they are not instructed that they possess such dispensing power.[61] In this case, Barker and Martinez were allowed to testify at length about the reasons motivating their involvement in the Fielding operation. This was an exercise of discretion by the judge that gave elbow room to both defendants and jury.[62]

[124] In sentencing Barker and Martinez after they were convicted to only three years probation, the trial judge made a subjective evaluation of the defendants’ conduct in light of the goals of the criminal law.[63] Barker and Martinez’s patriotic motives, good intentions, and prior experience with the CIA and Hunt must all have influenced the sentence imposed.[64] The trial judge

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exercised his sentencing power to distinguish, in terms of degree of moral guilt, between appellants Barker and Martinez and codefendant Ehrlichman. But sympathy for defendants, or the possibility that their mistake might be considered “reasonable” given their unique circumstances, must not override a pragmatic view of what the law requires of persons taking this kind of action. I come back — again and again, in my mind — to the stark fact that we are dealing with a breaking and entering in the dead of night, both surreptitious and forcible, and a violation of civil rights statutes. This is simply light years away from the kinds of situations where the law has gingerly carved out exceptions permitting reasonable mistake of law as a defense — cases like entering a business transaction on the erroneous advice of a high responsible official or district attorney, or like responding to an urgent call for aid from a police officer. I dissent.