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UNITED STATES v. MITCHELL

August 29, 1973

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


Gagliardi, District Judge.


The opinion of the court was delivered by: GAGLIARDI

GAGLIARDI, District Judge.

Defendants John N. Mitchell and Maurice H. Stans are charged in a multi-count indictment alleging conspiracy, obstruction of justice and perjury. Specifically, count 1 charges that Mitchell and Stans together with defendants Harry L. Sears and Robert L. Vesco conspired to obstruct justice in relation to an S.E.C. investigation of and subsequent judicial proceedings against Vesco and to defraud the United States in relation to the lawful functions of the S.E.C. and the G.A.O. Counts 2, 3 and 4 charge each of the defendants with endeavoring to obstruct justice in relation to the various stages of the proceedings against Vesco. Counts 5 through 10 charge the defendant Mitchell with the commission of perjury before the Grand Jury. Counts 11 through 16 contain similar perjury charges with respect to defendant Stans.

 Defendants Mitchell and Stans have made the full gamut of pretrial motions. For the purposes of exposition we treat these motions chronologically, examining first those motions addressed to the Grand Jury proceedings; continuing with those motions addressed to the sufficiency and structure of the indictment and those seeking discovery; and, concluding with those motions addressed to the problems of pretrial publicity and preparation for trial.

 I -- THE GRAND JURY PROCEEDINGS

 The Parkinson Testimony

 Defendant Maurice H. Stans moves to dismiss the indictment on the grounds that his Fifth and Sixth Amendment rights were violated by the questioning of Kenneth Wells Parkinson before the Grand Jury. *fn1" The motion is denied. The motion for alternative relief suppressing Mr. Parkinson's testimony before the Grand Jury and certain documents is granted.

 The relevant facts as contained in the affidavits of Mr. Parkinson and Assistant United States Attorney James W. Rayhill and as further developed at an evidentiary hearing held on August 15, 1973, may be briefly summarized.

 Kenneth Wells Parkinson is an attorney maintaining law offices in Washington, D.C. Commencing in late June of 1972 and continuing to date, Parkinson has represented defendant Stans in connection with various civil actions brought against and on behalf of the Finance Committee to Re-elect the President. In addition, up to the latter part of April 1973, Parkinson represented the defendant Stans in connection with the Grand Jury investigation leading to this indictment.

 On May 3, 1973, (after the termination of Parkinson's representation of Stans in connection with the Grand Jury proceedings) Parkinson met with Assistant United States Attorney Rayhill at the latter's office in New York. The meeting was initiated at Rayhill's request. Parkinson arrived at the meeting accompanied by one Ralph Albright. Rayhill advised Parkinson of his constitutional rights and indicated that the meeting could not continue in the presence of Albright. *fn2" After Albright had left the room, the meeting proceeded with a discussion of the issue of the attorney-client privilege. It was mutually agreed that no matters covered by the privilege would be explored. Rayhill questioned Parkinson with regard to certain meetings during the summer and fall of 1972 concerning the Vesco contribution. At the close of the interview, Rayhill indicated his dissatisfaction with Parkinson's responses and advised Parkinson that it would be a "tragic mistake" not to tell the whole truth. Parkinson agreed to resume the interview the following day.

 On the morning of May 4, 1973, Parkinson met with Rayhill and Assistant United States Attorney John R. Wing. Wing advised Parkinson of his constitutional rights and warned him not to discuss areas within the attorney-client privilege vis-a-vis defendant Stans. The interview again centered on meetings concerning the Vesco contribution. During the course of the interview, Parkinson indicated his belief that certain questions touched upon matters covered by the attorney-client privilege. At this juncture, Wing asked Parkinson to telephone Mr. Stans and inquire if Stans were willing to waive the privilege. Parkinson called Stans and reported that Stans wanted to consider the matter before making a decision. As the interview progressed, Parkinson answered several questions by referring to a file of handwritten and typed notes that he had brought with him. At the close of the interview, Wing asked Parkinson to give him the file. Parkinson removed from the file those papers he considered to be privileged and permitted Wing to copy the remaining documents. The copies were retained by Mr. Wing.

 On the afternoon of May 4, 1973, Parkinson testified before a Grand Jury. He did not, however, testify before the Grand Jury that subsequently returned the indictment, nor was his testimony read to the indicting Grand Jury. *fn3" Information obtained from Parkinson was used in the questioning of defendant Sears before the indicting Grand Jury on May 8, 1973.

 The defendant Stans argues that the actions of the Government in relation to Parkinson constituted a forbidden invasion of the attorney-client privilege and/or the work product rule. Our examination of the testimony and documents concerned leads us to conclude that the attorney-client privilege was not violated by the Government's conduct. However, we find that this conduct constituted an unjustifiable intrusion into matters protected by the work product rule.

 Without detailing the content of the documents in question, we can describe them as falling into two categories: first, statements prepared by Stans for use by Parkinson in connection with pending civil litigation; *fn4" second, notes made by Parkinson following interviews with various third parties. Beyond question, these documents are the result of the attorney's investigation and preparation of his client's case. The fact that they are not within the technical scope of the attorney-client privilege does not render them amenable to examination and use by the prosecutor. In re Terkeltoub, 256 F. Supp. 683 (S.D.N.Y. 1966). In Terkeltoub, the Government sought to compel an attorney to testify before the Grand Jury concerning a meeting among the attorney, his client and a third party. The meeting was held in preparation of the client's case for trial. In deciding that the attorney's testimony could not be compelled, Judge Frankel stated, "[the] ultimate interest to be protected is the privacy and confidentiality of the lawyer's work in preparing the case" and concluded that, "[the] prosecution's secret intrusion [into this area] offends both the Fifth and Sixth Amendments." Id. at 685. We find the Government's efforts to distinguish Terkeltoub on the basis of compelled versus voluntary testimony unpersuasive. *fn5" It is clear that an attorney is "not only entitled, but probably required, to withhold" such testimony. Id. at 684. The decision to "volunteer" information of this nature rests with the client. Parkinson's erroneous conclusion that the information could not be withheld can in no way be imputed to Mr. Stans nor can the "fruits" of that conclusion be used to the detriment of the defendant. *fn6"

 Having determined that the Government's conduct in relation to Parkinson constituted a violation of the defendant's Fifth and Sixth Amendment rights, we reach the question of the consequences of that conduct. By an accident of fate, Parkinson's testimony never reached the ears of the indicting Grand Jury. *fn7" Parkinson's testimony was used in questioning the defendant Sears before the indicting Grand Jury on May 8, 1973. This series of questions constituted a minute and not especially significant portion of an extensive Grand Jury investigation. Moreover, the Grand Jury was subsequently warned to disregard any mention of Parkinson in the Sears' testimony. *fn8" Under these circumstances a finding that the indictment was "tainted" by the Government's unfortunate and ill-advised excursion into the realm of the work product rule would be totally unjustified. The motion to dismiss the indictment is, therefore, denied. The motion to suppress is granted. The Government is directed to return to Mr. Parkinson all copies of the documents in question, forthwith. The copies of these documents in the court's possession shall remain sealed and shall be retained as a part of the record of these proceedings.

 Prosecutorial Misconduct

 The defendants Mitchell and Stans move to dismiss the indictment because of alleged Government misconduct both during the course of the Grand Jury proceedings and immediately following the return of the indictment. In support of their motion, the defendants rely on three incidents of alleged misconduct: 1) references by the Assistant United States Attorney to "Watergate" during the interrogation of defendant Mitchell before the Grand Jury; 2) a New York Times article ascribed to "sources close to the investigation" and headlined "INDICTMENT OF MITCHELL, STANS AND VESCO IS EXPECTED TODAY IN POLITICAL-GIFT CASE"; and 3) remarks by the then United States Attorney Whitney North Seymour, Jr. at a press conference announcing the indictment. We find that these incidents neither individually nor cumulatively justify the relief requested.

 On March 20, 1973, defendant Mitchell appeared before the Grand Jury investigating the so-called "Vesco" case. During the course of that appearance, the defendant was asked a series of eight questions containing references to the Watergate burglary. *fn9" The defendant contends that these questions were both prejudicial in their reference to "Watergate" and irrelevant to the matter before the Grand Jury. The Government argues that reliance on so brief and isolated a portion of an extensive Grand Jury investigation cannot support dismissal of the indictment. *fn10" We agree with the Government's contention. United States v. Nunan, 236 F.2d 576 (2d Cir. 1956). Perhaps of greater importance is the Government's contention that these questions were indeed relevant to the matter before the Grand Jury. In support of this contention, the Government has submitted to the court a sealed affidavit explaining the rationale of these questions. Having reviewed this affidavit, we are satisfied that the questions posed were sufficiently relevant to the existing posture of the Grand Jury investigation to justify the inquiry, *fn11" and did not constitute an instance of prosecutorial misconduct.

 The second alleged incident of prosecutorial misconduct concerns a New York Times article of May 10, 1973. The article bore the headline "INDICTMENT OF MITCHELL, STANS AND VESCO IS EXPECTED TODAY IN POLITICAL-GIFT CASE" and cited "sources close to the investigation." The defendants contend that this article evidenced a forbidden "leak" of information by the prosecutor and had a prejudicial impact upon the Grand Jury. Addressing first the claim of a "leak" of information, we find nothing in papers before the court to substantiate this claim or to justify the defendants' request for an evidentiary hearing. See United States v. Sweig, 316 F. Supp. 1148 (S.D.N.Y.), aff'd, 441 F.2d 114 (2d Cir.), cert. denied, 403 U.S. 932, 91 S. Ct. 2256, 29 L. Ed. 2d 711 (1970). The defendants' claim is analogous to that made in United States v. Kahaner, 204 F. Supp. 921 (S.D.N.Y. 1962), aff'd, 2 Cir., 317 F.2d 459 (1963). As in Kahaner the defendants base their argument on "inferences drawn from . . . newspaper articles which attributed their source to unidentified 'officials.'" Id. at 922. The opposing affidavit of Assistant United States Attorney James W. Rayhill is also similar to that submitted in Kahaner. In his affidavit, Mr. Rayhill unequivocally denies that the Government disclosed any information to the press. The affidavit is replete with references to the efforts undertaken to maintain the secrecy of the proceedings. *fn12" Thus it is stated that "only five Assistant United States Attorneys knew the details of the investigation" and that "Assistant United States Attorneys not directly working on the case were asked not to enquire about the case . . . ." (Rayhill affidavit at 13). "No outside investigative agency was involved" in the proceedings and "[the] grand jurors were continually reminded of their oath of secrecy." Id. In the face of this categorical denial by the Government, the defendants' conclusory allegations of a "leak" cannot support a dismissal of the indictment. United States v. Sweig, supra ; United States v. Kahaner, supra.

 Turning briefly to the question of the possible prejudicial impact of the Times article on the Grand Jury, we note that prior to its vote the Grand Jury was specifically advised to "disregard any newspaper articles and confine their decision on an indictment solely on (sic) the evidence before them." (Rayhill affidavit at 12). The defendants' conclusory allegation of prejudice cannot outweigh the "strong presumption of regularity accorded to the deliberations and findings of grand juries." United States v. Kahaner, supra, 204 F. Supp. at 923. See United States v. Nunan, 236 F.2d 576 (2d Cir. 1956), cert. denied, 353 U.S. 912, 77 S. Ct. 661, 1 L. Ed. 2d 665 (1957); United States v. Weber, 197 F.2d 237 (2d Cir.), cert. denied, 344 U.S. 834, 73 S. Ct. 42, 97 L. Ed. 649 (1952).

 The final incident of alleged prosecutorial misconduct concerns the remarks by the then United States Attorney Whitney North Seymour, Jr. at a press conference announcing the indictment. *fn13" In his opening comments, Mr. Seymour stated, "This is a sad day in a series of sad days for those of us who are concerned about integrity in government and in the administration of justice." We view this statement as being more an instance of misjudgment than misconduct. While we think it a "sad day" whenever a prosecutor sees fit to comment on a pending case in any but the most circumspect fashion, we do not read Mr. Seymour's remarks as tantamount to an expression of "opinion as to the accused's guilt" in violation of Local Rule 8. Moreover, taken in its proper context, the press conference cannot be interpreted as an attempt by the Government to create the "carnival atmosphere" denounced in Sheppard v. Maxwell, 384 U.S. 333, 358, 86 S. Ct. 1507, 16 L. Ed. 2d 600 (1966). See United States v. Pfingst, 477 F.2d 177, 186 (2d Cir. 1973). The motion to dismiss the indictment by reason of alleged prosecutorial misconduct is, accordingly, denied.

 Target Warnings

 The defendants move to dismiss the indictment on the grounds that the Government failed to advise them that they were the "target" of the investigation, prior to their appearance before the Grand Jury. The motion is without merit and is denied. At the time of the defendants' initial appearance before the Grand Jury "it was not at all clear that [either] of them would be a defendant. . . ." (Wing affidavit at 2). Put simply there was no "target." Moreover, the defendants were given the customary Miranda warnings prior to their appearances before the Grand Jury. "If these warnings are adequate to protect a defendant in the hostile environment of custodial interrogation they are surely sufficient with a witness appearing before a grand jury. . . ." United States v. Binder, 453 F.2d 805, 810 (2d Cir. 1971), cert. denied, 407 U.S. 920, 92 S. Ct. 2458, 32 L. Ed. 2d 805 (1972). See United States v. Potash, 332 F. Supp. 730 (S.D.N.Y. 1971).

 II -- SUFFICIENCY AND STRUCTURE OF THE INDICTMENT

 The Obstruction of Justice Charges

 The defendants move to dismiss Counts 2, 3 and 4 (the substantive obstruction of justice counts) and a substantial portion of count 1 (the conspiracy count) for failure to state an offense within the ...


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