514 F.2d 208 (D.C. Cir. 1975)
Appellants challenge denial by the District Court of their motions to withdraw guilty pleas to seven counts of an indictment arising out of the now-famous "Watergate Break-in." We affirm. We find in the court's action a proper exercise of its discretion under Rule 32(d), Federal Rules of Criminal Procedure.1
Appellants were the foot soldiers of the Watergate Break-in. They came to the affair from the anti-Castro movement, centered in Miami's Cuban-American community, and from a long history of service in the Central Intelligence Agency (CIA) and, apparently, in other official or quasi-official agencies specializing in "clandestine" operations. In the early morning hours of June 17, 1972, District of Columbia police found them inside the headquarters of the Democratic Party's National Committee (DNC) in the Watergate office complex. They had entered surreptitiously, picking the locks; they wore rubber surgical gloves to obscure fingerprints; they had been rifling through the DNC's documents and papers and carried with them devices and tools for electronic "bugging" and "wiretapping."
Arrested with them was James McCord,2 a former CIA agent who was then employed as a security officer by the Committee for Re-Election of the President [Richard M. Nixon] (CRP); the next few days brought the arrest of their immediate supervisors in the bizarre enterprise: E. Howard Hunt,3 a former CIA agent who was then, or had recently been, employed as a "consultant" to the White House, with an office in that building; and G. Gordon Liddy,4 a former White House employee who was then employed as General Counsel to the Finance Committee for the Re-Election of the President (FCRP).
The purpose of the operation was to gather political information damaging to the Democratic Party and, by consequence, useful to the President's re-election effort. But appellants now claim that, at the time of the break-in, they sincerely, though erroneously, believed the operation to be a "national security" mission, authorized by a "government intelligence agency," to examine alleged financial ties between the Democratic Party and the Castro regime in Cuba; appellants further contend that, at the time they tendered their guilty pleas, they sincerely, though again erroneously, believed that the selfsame "intelligence agency" wished them to maintain silence about the operation and forfeit their right to a trial. Referring to these twin erroneous beliefs, appellants urge that withdrawal of their pleas should be granted because the pleas were entered under circumstances of "fraud" and "duress," and because the break-in was executed, on their part at least, without the "criminal intent" requisite to conviction.
Before exploring the legal issues raised by appellants' contentions, it is necessary to recount in rather extensive detail the proceedings as they evolved in the District Court.
An indictment issued on September 15, 1972, charging each of the appellants with seven counts, including burglary, illegal electronic surveillance, and conspiracy.5 McCord, Hunt, and Liddy were also charged in the indictment. The seven defendants pleaded not guilty to all charges, and on January 8, 1973, jury selection commenced for a trial before then Chief Judge John J. Sirica. Appellants were represented by retained counsel, Henry Rothblatt, Jr., a noted criminal trial lawyer.
On January 10, 1973, the prosecution made a detailed opening statement to the jury, outlining the evidence and testimony which the Government planned to introduce. The prosecutor alleged that Liddy, Hunt, and McCord had used funds from the FCRP in a systematic program of espionage against the Democratic Party and its presidential candidates. This program allegedly included, among other oddities, an unsuccessful conspiracy to break into and "bug" the Washington headquarters of Senator George McGovern, and two break-ins, to install electronic eavesdropping devices, at the DNC's Watergate headquarters. The prosecutor charged that each appellant participated in the conspiracy to bug McGovern headquarters and in the two Watergate break-ins; that appellant Barker had interviewed ex-CIA personnel for an information-gathering "operation" against the Democratic National Convention and "against certain [Democratic Party] leaders," particularly Lawrence O'Brien, Chairman of the DNC; and that Barker had received from the FCRP, and cashed, five checks totalling $114,000. As to the defendants' motives, the prosecutor stated:
Obviously it was a political motive, political campaign. The operation was directed against the Democratic Party, particularly Senator George McGovern, because of his alleged left-wing views. You heard me you [sic] tell you what defendant McCord was primarily interested in on those monitored conversations Mr. Baldwin was hearing [conversations monitored from a wiretap installed at DNC headquarters], whether a sensitive or personal nature.
The interests of the persons, the defendants in this case may vary, that is, the motivation of defendant Hunt and defendant Liddy may have been different from the motivations of the four defendants from Miami, and they in turn may have had a different motivation from defendant McCord. Certainly the facts will suggest itself to you based on the information that we produce before you it was a financial motive here, financial motive. At least on the part of those who were arrested inside the Watergate the early morning hours of June 17th.
The prosecutor claimed that appellants had been in dire financial straits before joining the conspiracy and that they had been given very large sums of money for their participation.
Opening statements were also made by McCord's lawyer and by Rothblatt, appellants' counsel. Both attorneys emphasized the issue of motives. Thus, McCord's lawyer said:
I can tell you what the evidence will not show. The evidence will not show that Mr. McCord was present at the Watergate on the night in question for any type of financial reward or gain.
We will show that Mr. McCord had no criminal intent. We will show that Mr. McCord was not aware of all of those facts which might make his conduct criminal.
He had no evil-meaning mind. He had no evil-doing hand.
Rothblatt's opening argument outlined a similar defense.
But I ask you on behalf of my clients to pinpoint the evidence as it unfolds on Barker, Sturgis, Gonzalez, and Martinez [appellants here], as to their criminal intent, evil mind, and motives.
- [W]e underline "motives" and we ask you to concentrate your attention on the motives in this case.
The evidence will show that all of these four accused were part of our Government and served our Government during a planned operation on behalf of our Government back in 1951 that Mr. Silbert [the prosecutor] referred to as the Bay of Pigs.
These were men who took orders in military fashion and never questioned orders. These were men who were used to serving their Government loyally and following orders.
THE COURT: Let me ask you a question. Is it your [d]efense that they were taking orders from somebody, were ordered to go into the Watergate? Is this what you are going to show?
MR. ROTHBLATT: I think the evidence even as outlined by Mr. Silbert shows that in part, Your Honor.
THE COURT: I wish you would get down to the basic issues here: why did they go into the Watergate? Tell the [j]ury what you think the evidence is going to be.
MR. ROTHBLATT: * * * The evidence will show that they were following their instructions in typical military fashion; that they have been trained to follow with no evil motive.
During these opening statements, the judge made clear that he viewed the issue of "criminal intent" as an important one.
Of course the Jury is going to want to know why the men went in there. * * * That is one of the crucial issues in the case. Who paid them. Did they get any money to go in there. Was it purely for political espionage. What was the purpose.
I think these are the things that might be discussed in a case like this.
Immediately following these opening arguments, Hunt's attorney announced in open court that his client wished to change his plea to guilty with respect to three of the six counts charged against him. The prosecutor stated his acceptance of this compromise plea, but the next day, January 11, 1973, the court rejected the plea offer, noting the Government's apparent ability "to introduce substantial evidence relating to all eight counts of the indictment" "against Mr. Hunt and the other Defendants." Hunt thereupon recast his plea to encompass all of the counts charged against him, and the court accepted the enlarged plea. The trial then continued, with five Government witnesses appearing on January 11. One of these witnesses testified that Hunt had asked him to join the Democratic campaign organization to gather general political information for the CRP. Another witness testified that he had been hired by Hunt to obtain information on the location of heating ducts and electrical outlets at Muskie and McGovern headquarters.
On January 12 appellants wrote an extraordinary letter to their attorney, Rothblatt, which he immediately delivered to the court. The letter read:
We have been asking you since Sunday, January 7, 1973 to change our plea from not guilty to guilty. You have not complied with our request. We have made it clear from the beginning that the defense which you presented in your opening statement to the press is not acceptable to us.
We respectfully inform you as of this date, January 12, 1973 you will no longer represent us. We intend to pay any reasonable fees presented by you. Please accept our sincere gratitude for your past services.
Rothblatt told the court he had refused, and would continue to refuse, to plead his clients guilty.
I indicated to them in no uncertain terms that I would not be their attorney to enter a plea of guilty for reasons that I am aware of, but I couldn't in good conscience as a member of the bar, knowing my professional responsibilities, undertake to do that knowing what I do and I would be derelict in my duty as a lawyer. I would feel I would be subject, from what I know, to the wors[t] kind of professional criticism. If they want to get somebody else, do it, that is all right but I cannot in good conscience get up before Your Honor and tell you my clients have met all Constitutional requirements when they entered a plea of guilty.
Beyond this Rothblatt would not go, even in camera, for fear of "breaching a confidential communication" with his clients.
The court instructed Rothblatt to confer with his clients on the problem. Several hours later, Rothblatt reported that appellants desired appointment of new counsel, for the purpose of entering guilty pleas. The court then met with appellants in camera to explore their wishes. Each appellant professed his satisfaction with, and gratitude for, Rothblatt's representation, but each stated that an insoluble lawyer-client disagreement existed on the issue of guilty pleas. The court offered to appoint a new, additional counsel to confer with appellants on the issue of pleading, but stressed that Rothblatt would remain their lawyer should they wish to continue contesting the charges. Appellants embraced this proposal. The court immediately appointed Alvin Newmyer, a highly experienced Washington attorney, as appellants' new counsel. The prosecutor and Rothblatt offered Newmyer full cooperation, and the court recessed the trial for the weekend to give Newmyer an opportunity to acquaint himself with the case and with his new clients.
The following Monday morning, January 15, 1973, Newmyer informed the court his clients wished to plead guilty. He proclaimed his satisfaction that the pleas would be voluntary and made without coercion, inducement, or promises. The prosecutor informed the court that a compromise plea to three counts would be acceptable to the Government, but the court rejected any notion of compromise. Newmyer then stated his clients were willing to plead guilty to all seven counts charged. At the court's explicit instructions, Newmyer advised appellants that pleading guilty would require them to answer many questions from the bench, and to answer them truthfully. Appellants said they were prepared for this.
The judge thereupon examined and educated appellants according to Rule 11, Federal Rules of Criminal Procedure. This was a voir dire of extraordinary thoroughness; it covers more than 50 pages of typed transcript. Throughout, the judge's obvious purpose was to warn appellants of the gravity of a guilty plea and to root out their precise reasons for wishing to plead guilty. He explained in great detail each of the constitutional rights forfeited by a guilty plea. He made sure appellants were "thoroughly satisfied with the advice Mr. Newmyer had given." He explained each element of each crime charged in the indictment, detailing exactly what the Government would have been required to prove beyond a reasonable doubt. He carefully enumerated the sentences which might lawfully be imposed for each count in the indictment. Most importantly, the court went to great lengths in seeking to uncover appellants' reasons for participating in the break-in and for deciding to plead guilty.
Now, it is rather lengthy, but I want to be very careful that all of you understand what you are doing, that is the purpose of these questions, because if I am not convinced after I finish my questions that there is a basis in the alleged evidence in this case as outlined by the Government and any other things you might know, if I am not convinced that you are doing this knowingly, voluntarily, without any coercion, threats or anything like that, I don't have to accept the plea and then you will stand trial.
Do you understand that?
THE DEFENDANTS: (In chorus) Yes, Your Honor.
THE COURT: I want you to be straightforward with these questions. I want you to come forward in a truthful manner, I don't care who they might hurt or help, it doesn't make any difference to this Court who you might mention or who it hurts or helps, just so you don't involve any innocent people.
Do you understand that?
THE DEFENDANTS: (In chorus) Yes, sir.
THE COURT: I want that thoroughly understood. I think I stated my position in this case from the beginning. Don't pull any punches. You give me frank answers. Any people involved that shouldn't be involved, I want to know it and the Grand Jury will want to know it.
Do you understand that, is that clear, Mr. Martinez, Mr. Barker, Mr. Sturgis, and Mr. Gonzalez?
THE DEFENDANTS: (In chorus) Yes, sir.
Under skeptical, repeated, and vigorous questioning, appellants confessed that the Government's opening statement had been substantially accurate, and that it established their guilt on each count. Each separately denied knowing whether anyone other than the indicted defendants had been involved in planning the break-in and related activities. Appellants denied knowing where their expense money had come from. They denied ever having been employed by the CIA. Each appellant stated that he had participated in the break-in in the belief, instilled by Hunt, that it would somehow advance the cause of anti-Communism in Cuba. Beyond this, they insisted, they knew nothing. As to their motives for pleading guilty, appellants denied any outside pressures or inducements. The voir dire touched on this issue again and again; one excerpt conveys the tone:
THE COURT: Has anyone promised any of the four of you if you plead guilty to any one or all of the counts that you will serve a short term or get executive clemency or commutation of sentence?
THE DEFENDANTS: (In chorus) No, Your Honor.
THE COURT: Are you sure of that?
THE DEFENDANTS: (In chorus) Yes, sir.
THE COURT: Has any pressure of any kind been used on any one or all four of you from any person in any walk of life to keep you from talking in this case?
THE DEFENDANTS: (In chorus) No, Your Honor.
THE COURT: From telling what happened. Did Mr. Hunt urge any one or all of you to plead guilty in this case?
THE DEFENDANTS: (In chorus) No, Your Honor.
THE COURT: I think I have asked you this in substance: Have any one of you been promised that your families will be taken care of during whatever time you may have to serve in prison?
THE DEFENDANTS: (In chorus) No, Your Honor.
THE COURT: Are any of you being paid by anyone for anything?
THE DEFENDANTS: (In chorus) No, sir.
As noted, the judge's questioning was highly skeptical. For instance, after pressing Barker again and again on the financing of the break-in, the court expressed its exasperation.
THE COURT: * * * Where did you get that money that you used to pay those men's expenses?
MR. BARKER: Your Honor, I got that money in the mail in a blank envelope.
THE COURT: I am sorry, I don't believe you.
It was obvious that appellants were reluctant to tell all they knew about the detailed planning of the breakin. But the facts of their own participation had been laid out by the Government and fully admitted by appellants, and appellants absolutely insisted upon pleading guilty. For the judge to have pushed his inquiries further would not only have delayed the trial of the remaining defendants but also usurped its fact-finding function. Unable to shake appellants' determination to plead guilty, the judge finally accepted the pleas and committed each appellant on $100,000 bond pending receipt of a presentence report.
The Watergate trial continued without appellants or Hunt, ending with jury verdicts of guilty, on all counts, against the remaining defendants, Liddy and McCord. On March 23, 1973, the court committed appellants to the custody of the Attorney General, for tentative maximum terms, under 18 U.S.C. § 4208(b) (1970), pending final sentencing.
On September 14, 1973, prior to final sentencing, appellants moved to withdraw the guilty pleas entered eight months earlier. The motion asserted that the pleas "were inaccurate because defendants had and have valid defenses to the charges against them," that the appellants "believed that they had been directed to plead guilty to the charges to avoid the exposure of secret, confidential, and sensitive national security operations of which they were a part," and that the pleas were "the product of a blind and ignorant loyalty fostered in these defendants' minds by deceptions practiced on them by others who purported to act under color of a higher law."
The motion was premised on two related contentions: (a) that, at the time of the break-in, appellants believed the affair to be a "national security" operation authorized by a "government intelligence agency", and (b) that, at the time of their guilty pleas, appellants believed "national security" considerations precluded disclosing this Government authorization, and thus precluded defending against the charges. Appellants conceded that "[s]ubsequent events have demonstrated that the June 17, 1972 operation was purely political in nature and was neither sponsored nor approved by any federal government intelligence agency for national security purposes." Appellants further conceded that subsequent events had shown that their silence at trial was not in fact required by "national security" considerations.
At the court's request, each appellant submitted a sworn affidavit explaining how his erroneous beliefs had been formed concerning the sponsorship of the break-in and the need for silence at trial. We recount here the gist of these affidavits.
Sponsorship: Hunt had hired Barker and, through him, the other appellants. The reputations of Hunt and Barker instilled appellants' belief that the Watergate break-in was an "official" operation. Hunt had been Barker's "supervisor" in the Bay of Pigs Invasion and was widely known in Miami's Cuban-American community as a CIA agent. Martinez had long been on a CIA retainer. Sturgis, after participating in the Bay of Pigs, had continued to work in various unidentified "clandestine operations" against the Castro regime. Gonzalez was aware of the CIA connections of his colleagues.
Appellants had worked on other operations for Hunt which appeared to have official authorization. Though Hunt was formally "retired" from the CIA, he had an office at the White House. In August 1971 Hunt engaged Barker to "help him on a matter of national security [which] involved a traitor to this country who had been giving information to the Russian Embassy." As part of this mission Hunt, Liddy, Barker, and Martinez broke into the office of Daniel Ellsberg's psychiatrist. This, Hunt had represented, was at the behest of "a national security intelligence agency that had greater jurisdiction than both the FBI and the CIA." Hunt told Barker that the tools and equipment used in the Ellsberg operation had been furnished by the CIA. Hunt had also asked Barker to provide the names of possible recruits for an information-gathering operation during the Democratic National Convention, and these names were, according to Hunt, subsequently "cleared" by higher officials. Hunt had also arranged for appellants to stand guard at the casket of former FBI Director J. Edgar Hoover during memorial services in Washington.
As for the Watergate Break-in, Hunt told appellants that the DNC was receiving money from Castroite sources in Cuba; their mission was to photograph and "secure" documents relevant to this financing, in the interest of "national security." Appellants' phony identification papers were supplied by the CIA. Appellants had "no reason to doubt Mr. Hunt's representations or his authority" because he appeared to have inside information concerning Government affairs—e.g., advance notice of the mining of Haiphong Harbor and of the retirement of CIA Director Richard Helms. Appellants' affidavits do not claim that any Government official—other than Hunt—ever spoke to them about the Watergate operation or vouched for Hunt's "authority" to undertake it.
Silence at trial: The affidavits identify several facts and circumstances, following the arrest, which led appellants to plead guilty.
When one is apprehended in such an operation one of two things happen. Either you go to jail because the government denies the entire thing or you are not incarcerated because the government makes secret arrangements or publicly acknowledges responsibility for the operation. Those who have been apprehended have no choice in that decision. If the government does not acknowledge responsibility then assistance is provided in the form of expenses, attorneys and financial help for the families.6
Appellants received funds, through Hunt's wife, for maintaining their families. Lawyers appeared to represent them and were paid from these same funds. Rothblatt told Barker, "at some point prior to our trial," that "we were going to be able to use as our defense that the Watergate operation had been a CIA operation."7 But McCord objected to using the defense because "the CIA had not approved it [the defense]."8 At about this time, Hunt entered his guilty plea. From this, each appellant drew a clear inference. Barker's affidavit is representative:
After we came to Washington for our trial * * * I was told by Mr. Hunt that he had decided to plead guilty and that we did not have any defense. This represented to me a final decision that there would be no disclosure at the trial as to the true nature of the operation we had engaged in and that the plan which was to be followed was for us to plead guilty and I did so.
As for hiding their true concerns from Judge Sirica, Barker's affidavit explains:
My belief that this was a government operation which was not supposed to be disclosed was reinforced by the questioning by the Court * * *. In particular, the Court inquired of us whether we had ever worked for the Central Intelligence Agency. For Judge Sirica to ask me to respond in open Court to that question signalled to me that he had not been informed by the government of this fact, was not supposed to know and that I was not supposed to reveal that anymore than I was supposed to reveal the nature of the operation itself. I viewed this matter as being the same as regarding Mr. Ellsburg [sic] and his case. It was not my position to make any disclosure as to this operation to say nothing of revealing the existence of the Fielding office entry [the break-in at the office of Ellsberg's psychiatrist]. The government knew about both and the decision as to disclosure was that of the government, not mine.
Appellants inferred the continuing necessity to remain silent, after their pleas, from the fact that they and Hunt were "all kept together in jail as a unit." This, appellants concluded, was "so that Mr. Hunt would continue to be in a position to serve as our supervising agent."9
Appellants do not claim that any Government official approached them with a request to remain silent, for "national security" purposes or any other. Nor do appellants claim to have made their own inquiries on this point, either personally or through counsel.
On November 5, 1973, Judge Sirica considered briefs, and heard oral argument, on the appellants' motion and affidavits. Appellants' factual claims were not subjected to an evidentiary hearing. The withdrawal motion was denied on November 7. Though no opinion was filed, the court has filed a statement of reasons for its denial of bail pending sentencing. In this statement the court noted that an extensive voir dire was conducted before the guilty pleas were accepted; that the pleas were based on the Government's contentions in opening argument which furnished "ample evidence to conclude that there existed a factual basis" for the pleas; that appellants had been represented throughout by competent counsel; and that the motion to withdraw came many months after the pleas were entered.10
Final sentences were imposed on appellants on November 12, 1973. For each appellant, sentences on all counts were imposed concurrently, resulting in a liability of 18 months to 6 years for Barker, and of 1 to 4 years for each of the other appellants.11
While Rule 32(d)12 permits post-sentence withdrawal of a guilty plea only to prevent "manifest injustice," the rule lays down no particular standard for deciding withdrawal motions filed prior to sentencing. However, the federal courts, relying on Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 71 L.Ed. 1009 (1927), have uniformly ruled that presentence motions should be granted wherever such would be "fair and just." E.g., Kadwell v. United States, 315 F.2d 667 (9th Cir.1963); Gearhart v. United States, 106 U.S.App.D.C. 270, 272 F.2d 499 (1959). See generally, Note, Presentence Withdrawal of Guilty Pleas in the Federal Courts, 40 N.Y.U.L.Rev. 759 (1965). Though even presentence motions are addressed to the sound discretion of the District Court, Everett v. United States, 119 U.S.App.D.C. 60, 336 F.2d 979 (1964), with appellate reversal uncommon, see 8A J. Moore, Federal Practice ¶ 32.07[1] (2d ed. 1973), the "fair and just" standard is obviously more lenient than that of "manifest injustice," Gearhart v. United States, supra, 106 U.S.App.D.C. at 273, 272 F.2d at 502. Appellants' motions were filed prior to final sentencing but some months after appellants' commitment to the custody of the Attorney General, under tentative maximum terms, pursuant to 18 U.S.C. § 4208(b).13 We have concluded that these motions should be judged under the "fair and just" standard normally applicable to presentence withdrawal motions.
When Section 4208(b) is invoked, the court in effect sentences the defendant twice, the first time to a provisional full term, to give prison and parole officials a three- to six-month period to compile background information on the defendant, the second time to a shorter term, based on the information compiled. This two-stage process finds no echo in the Federal Rules of Criminal Procedure, which everywhere refer merely to "sentencing," as if this were inevitably a one-stage process. Conforming the Rules to the statute has required considerable ingenuity. See, e.g., United States v. Behrens, 375 U.S. 162, 84 S.Ct. 295, 11 L.Ed.2d 224 (1963), holding that a defendant's Rule 43 right to be present at sentencing applies to final sentencing under Section 4208(b), and Corey v. United States, 375 U.S. 169, 84 S.Ct. 298, 11 L.Ed.2d 229 (1963), holding that appeal of a conviction may be filed after either tentative or final sentencing under Section 4208(b). The Supreme Court has yet to construe Rule 32(d) in the context of the Section 4208(b) sentencing process. Several circuits have left the issue open, e.g., United States v. McCoy, 477 F.2d 550 (5th Cir.1973), and Callaway v. United States, 367 F.2d 140 (10th Cir.1966), while the Ninth Circuit has held that a withdrawal motion filed between tentative and final sentencing should be judged against the "presentence" standard of fairness and justice, United States v. Thomas, 415 F.2d 1216, 1218 (9th Cir.1969), and Sherman v. United States, 383 F.2d 837, 840 (9th Cir.1967).
The Ninth Circuit's position seems to us sensible, and we adopt it. Two reasons of policy have been advanced to explain the near-presumption which Rule 32(d) erects against post-sentence withdrawal motions. The first is that post-sentence withdrawal subverts the "stability" of "final judgments." High v. United States, 110 U.S.App.D.C. 25, 27, 288 F.2d 427, 429, cert. denied, 366 U.S. 923, 81 S.Ct. 1350, 6 L.Ed.2d 383 (1961), and Kadwell v. United States, supra, 315 F.2d at 670. The second reason is that the post-sentence withdrawal motion often constitutes a veiled attack on the judge's sentencing decision; to grant such motions in lenient fashion might
undermine respect for the courts and fritter away the time and painstaking effort devoted to the sentencing process.
Kadwell v. United States, supra, 315 F.2d at 670. Concern for the "stability of final judgments" has little application to withdrawal motions filed between tentative and final sentencing under Section 4208(b). The point at which a defendant's judgment of conviction becomes "final" for purposes of appeal—whether at tentative or at final sentencing—is wholly within the defendant's discretion. Corey v. United States, supra. Concern for the integrity of the sentencing process is, however, another matter. The major point, in our view, is that tentative sentencing under Section 4208(b) leaves the defendant ignorant of his final sentence. He will therefore be unlikely to use a withdrawal motion as an oblique attack on the judge's sentencing policy. The relative leniency of the "fair and just" standard is consequently not out of place. We recognize, however, that application of that standard may require some adjustments in the context of Section 4208(b) sentencing.
If such motions had to be routinely granted, trial judges might react by cutting back on use of Section 4208(b) procedures, which would be highly unfortunate. Compare United States v. Youpee, 419 F.2d 1340, 1343 (9th Cir.1969). Furthermore even tentative sentencing may encourage frivolous motions, for the tentatively sentenced defendant is at least aware that probation or a suspended sentence are unlikely. Finally, a motion filed after tentative sentencing will typically come a rather long time after the guilty plea itself, and granting it may consequently threaten unusual prejudice to the Government or unusual inconvenience for the court or for those who have expended effort preparing presentence reports. But none of these concerns seems to us sufficiently weighty to justify imposing the onerous "manifest injustice" standard on withdrawal motions filed between tentative and final sentencing. Rather, these concerns may be given their appropriate, individual weight by the judge in exercise of his broad discretion under the "fair and just" standard. As we now proceed to explain, that standard is a flexible guide, not a rigid formula, and it is accordingly adaptable to the peculiarities of the Section 4208(b) sentencing process.
Needless to say, the terms "fair and just" lack any pretense of scientific exactness. As a Court of Appeals will reverse denial of a withdrawal motion only upon finding an abuse of discretion, the precise "meaning" of the standard lies buried in the unreported actions of federal trial judges. Nevertheless, some rough guidelines have emerged in the appellate cases.
Whether the movant has asserted his legal innocence is an important factor to be weighed. United States v. Joslin, 140 U.S.App.D.C. 252, 256, 434 F.2d 526, 530 (1970); Gearhart v. United States, supra. If the movant's factual contentions, when accepted as true, make out no legally cognizable defense to the charges, he has not effectively denied his culpability, and his withdrawal motion need not be granted. Everett v. United States, supra. On the other hand, where the motion does assert legal innocence, presentence withdrawal should be rather freely allowed. E.g., United States v. Joslin, supra, 140 U.S.App.D.C. at 257, 434 F.2d at 531; United States v. Young, 424 F.2d 1276, 1279 (3rd Cir.1970); Kadwell v. United States, supra; Gearhart v. United States, supra, 106 U.S.App.D.C. at 273, 272 F.2d at 502; Poole v. United States, 102 U.S.App.D.C. 71, 75, 250 F.2d 396, 400 (1957).
This is not to say, however, that the mere assertion of a legally cognizable defense is always a sufficient condition for securing withdrawal of a plea. While some decisions have come close to suggesting that a mere assertion of innocence is enough to merit withdrawal, each of these cases involved the additional, and obviously important, consideration that the guilty pleas at issue had been entered under highly questionable circumstances. Thus, in United States v. Young, supra, the defendant had misunderstood the crimes charged; in Kadwell v. United States, supra, counsel was clearly ineffective when the plea was entered; in Gearhart v. United States, supra, there was strong evidence the defendant had been mentally ill when he entered his plea; and in Poole v. United States, supra, the plea had been entered hastily at arraignment, without benefit of counsel.
Were mere assertion of legal innocence always a sufficient condition for withdrawal, withdrawal would effectively be an automatic right. There are few if any criminal cases where the defendant cannot devise some theory or story which, if believed by a jury, would result in his acquittal. A guilty plea is very typically entered for the simple "tactical" reason that the jury is unlikely to credit the defendant's theory or story. See McCoy v. United States, 124 U.S.App.D.C. 117, 119, 363 F.2d 306, 308 (1966). Indeed, so long as a factual basis for the plea exists, see Rule 11, Fed.R. Crim.P., a court may accept such a "tactical" guilty plea even from a defendant who continues to assert his innocence. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Surely, such a defendant does not retain a right automatically to withdraw his plea. A guilty plea "frequently involves the making of difficult judgments." McMann v. Richardson, 397 U.S. 759, 769, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); see also Brady v. United States, 397 U.S. 742, 757, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970). Were withdrawal automatic in every case where the defendant decided to alter his tactics and present his theory of the case to the jury, the guilty plea would become a mere gesture, a temporary and meaningless formality reversible at the defendant's whim. In fact, however, a guilty plea is no such trifle, but "a grave and solemn act" which is "accepted only with care and discernment." Brady v. United States, supra, 397 U.S. at 748, 90 S.Ct. at 1468. It follows that a court, in addressing a withdrawal motion, must consider not only whether the defendant has asserted his innocence, but also the reason why the defenses now presented were not put forward at the time of original pleading. See United States v. Needles, 472 F.2d 652 (2d Cir.1973); United States v. Webster, 468 F.2d 769, 771 (9th Cir.1972), cert. denied, 410 U.S. 934, 93 S.Ct. 1385, 35 L.Ed.2d 597 (1973); United States v. Fernandez, 428 F.2d 578 (2d Cir.1970); United States v. Thomas, supra; Callaway v. United States, supra; United States v. Giuliano, 348 F.2d 217 (2 Cir.), cert. denied, 382 U.S. 946, 86 S.Ct. 390, 15 L.Ed.2d 349 (1965); Hawk v. United States, 119 U.S.App.D.C. 267, 271 n. 12, 340 F.2d 792, 796 n.12 (1964).
The reasons given by the movant for "delaying" assertion of his defenses by means of an intervening guilty plea must be weighed according to the circumstances of his particular case. It should go without saying that the standard is very lenient when the plea was entered unconstitutionally or contrary to Rule 11 procedures. Such pleas should almost always be permitted to be withdrawn, both before and after sentencing, regardless of whether the movant has asserted his legal innocence. See McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). By the same token, however, where the plea itself was properly entered withdrawal is not an automatic right and more substantial reasons for delay must generally be asserted. United States v. Sambro, 147 U.S.App.D.C. 75, 77, 454 F.2d 918, 920 (1971); United States v. Joslin, supra; United States v. Giuliano, supra, 348 F.2d at 222; United States v. Hughes, 325 F.2d 789 (2d Cir.), cert. denied, 377 U.S. 907, 84 S.Ct. 1167, 12 L.Ed.2d 178 (1964).
Even where the plea was properly entered, however, the standard for judging the movant's reasons for delay remains low where the motion comes only a day or so after the plea was entered. See United States v. Joslin, supra, and Kadwell v. United States, supra. A swift change of heart is itself strong indication that the plea was entered in haste and confusion; furthermore, withdrawal shortly after the event will rarely prejudice the Government's legitimate interests. By contrast, if the defendant has long delayed his withdrawal motion, and has had the full benefit of competent counsel at all times, the reasons given to support withdrawal must have considerably more force. United States v. McCoy, supra, 477 F.2d at 551; United States v. Youpee, supra, 419 F.2d at 1343; Callaway v. United States, supra, 367 F.2d at 142. The movant's reasons must meet exceptionally high standards where the delay between the plea and the withdrawal motion has substantially prejudiced the Government's ability to prosecute the case. United States v. Vasquez-Velasco, 471 F.2d 294 (9th Cir.), cert. denied, 411 U.S. 970, 93 S.Ct. 2163, 36 L.Ed.2d 692 (1973); United States v. Harvey, 463 F.2d 1022 (4th Cir.), cert. denied, 411 U.S. 972, 93 S.Ct. 2162, 36 L.Ed.2d 696 (1972); United States v. Del Valle-Rojas, 463 F.2d 228 (9th Cir.1972); United States v. Tabory, 462 F.2d 352 (4th Cir.1972); United States v. Lombardozzi, 436 F.2d 878 (2d Cir.), cert. denied, 402 U.S. 908, 91 S.Ct. 1379, 28 L.Ed.2d 648 (1971); United States v. Stayton, 408 F.2d 559, 561 (3rd Cir.1969); Pelletier v. United States, 121 U.S.App.D.C. 349, 350 F.2d 727 (1965). The most common form of prejudice is the difficulty the Government would encounter in reassembling farflung witnesses in a complex case, but prejudice also occurs where a defendant's guilty plea removed him from an ongoing trial of co-defendants, who were then found guilty. 8A J. Moore, Federal Practice ¶ 32.07[2] (2d ed. 1973). That withdrawal would substantially inconvenience the court is also a proper factor for consideration. Everett v. United States, supra, 119 U.S.App.D.C. at 65, 336 F.2d at 984; Pelletier v. United States, supra.
By way of asserting their legal innocence, appellants advance several "defenses" to the indictment. They also provide reasons, of a sort, for suppressing these "defenses" at trial and delaying public assertion until eight months after pleading guilty. Even if the "defenses" now asserted by appellants had legal merit, a question we do not reach, it is our view that appellants' reasons for delaying their assertion are insufficient to require granting the withdrawal motion, particularly in light of appellants' provisional sentencing under 18 U.S.C. § 4208(b). See Part II-A supra. We accordingly conclude that Judge Sirica operated well within the borders of a sound and reasoned discretion in denying appellants' motions.
Appellants claim they pleaded guilty, suppressing their "defenses," because they honestly, though mistakenly, believed that "national security" considerations required their silence. In testing the adequacy of this explanation, we must look to the circumstances of the case. See Part II-B supra.
These guilty pleas were not ill-considered or offered in haste. In its opening statement the prosecution had outlined an overwhelming case against appellants. The pleas were accepted only after an extraordinarily elaborate procedure, stretching over four days, conducted largely in camera, and involving two competent and loyal attorneys. Neither counsel, prosecutor, nor judge exerted the slightest pressure on appellants to induce them to plead guilty; indeed the judge and attorney Rothblatt clearly bent every effort to dissuade appellants from this course. Rothblatt was obviously prepared and willing to present the "lack of criminal intent" defense which appellants now advance in support of their motions. By discharging Rothblatt, appellants rejected that tactic in the most resolute and dramatic fashion conceivable.
Appellants' withdrawal motion did not come until eight months after the pleas had been entered and their co-defendants, Liddy and McCord, had been convicted. For that reason, it is very likely that withdrawal of the pleas would substantially prejudice legitimate prosecution interests. The pleas interrupted in mid-testimony a trial of unusual complexity. Though no important witness has, apparently, died in the interim, there would be numerous practical difficulties in reassembling the witnesses and evidence for trial.
You do not assemble a case of this kind for trial twice * * *. When a plea is taken in the middle of trial, it has to be taken with the utmost deliberation simply because the public's right is going to be compromised if there is something wrong with the plea-taking.
United States v. Lombardozzi, supra, 436 F.2d at 881. Besides the practical difficulties of reassembling this case for trial, intervening events have worked to further prejudice any future prosecution. First, of course, the trial of appellants' co-defendants continued with attendant publicity, after the court accepted appellants' guilty pleas. Out of a concern for just such publicity, Judge Sirica carefully selected and sequestered the original jury; prospective jurors for a trial now of appellants presumably will have been exposed to this publicity covering the facts of this case, thus making the jury selection problem more difficult. Second, after the guilty pleas were entered, appellants were granted "use immunity" so that they might testify concerning the break-in before the grand jury and before congressional committees. Had the Government known that appellants intended to revoke their pleas, it would very likely have abstained from securing their immunization, for the trial of pre-immunized defendants is obviously, and quite properly, a very difficult, if not impossible, task.
We also consider it important that appellants' withdrawal motion is premised on claims directly contrary to the representations which appellants made to Judge Sirica during the plea-taking procedure. He asked them if they had ever been employed by the CIA, and they lied that they had not. He asked them if they were pleading guilty for some reason of loyalty, coercion, or inducement, and they lied that they were not. He asked their motives for participating in the break-in, and they retreated into generalities and half-truths. By definition, a motion to withdraw a plea constitutes a formal disavowal, but this case goes well beyond that. Appellants willfully abused and misled the court on matters of critical public importance. To grant a plea withdrawal under such circumstances would require a reason of genuinely compelling force.
Appellants' proffered reason does not meet any such test. Appellants do not allege that any Government official urged them to plead guilty for "national security," or any other, reasons. Their affidavits contain no allegation that the "Government" unconstitutionally coerced or induced their pleas. Contrast North Carolina v. Alford, supra, 400 U.S. at 31, 91 S.Ct. 160; McMann v. Richardson, supra, 397 U.S. at 772, 90 S.Ct. 1441; Brady v. United States, supra, 397 U.S. at 747-48, 90 S.Ct. 1463. If appellants had alleged and could demonstrate that some Government official had deceived them about their "patriotic duty" to remain silent, withdrawal of their pleas might be proper. Compare United States v. Tateo, 214 F.Supp. 560, 566-67 (S.D.N.Y.1963). But appellants claim only that various "circumstances"—chiefly Hunt's guilty plea—gave them the subjective impression that someone or some agency in the Government wished them to plead guilty.14 There is not even a direct claim that Hunt told them as much; even if he had, the "Government" cannot be held responsible for actions taken, or rumors spread, by appellants' co-defendants. See United States v. Fernandez, supra, 428 F.2d at 580.
In a case such as this, involving possible prejudice to legitimate prosecution interests, a flagrant abuse of judicial processes by the appellants, and provisional sentencing under 18 U.S.C. § 4208(b), we do not think it is a sufficient reason, to merit withdrawal of the guilty pleas, that appellants may in fact have labored under a subjective impression that "national security" considerations required their silence at trial. If subjective impressions, however irrational and unfounded, were enough, any defendant could claim them and thus secure tactical advantages by pleading guilty and delaying his withdrawal motion to a point where retrial would be onerous or impossible for the Government. In our view the proper question in this case is not whether appellants entertained the erroneous belief that silence was their duty, but whether this belief was, in an objective sense, reasonable in the circumstances. See United States ex rel. Curtis v. Zelker, 466 F.2d 1092, 1098 (2d Cir.1972), cert. denied, 410 U.S. 945, 93 S.Ct. 1405, 35 L.Ed.2d 612 (1973). That the belief was a mistaken one does not mean that it was necessarily unreasonable. But see United States ex rel. LaFay v. Fritz, 455 F.2d 297, 303 (2d Cir.), cert. denied, 407 U.S. 923, 92 S.Ct. 2471, 32 L.Ed.2d 809 (1972) (suggesting that even a reasonable, though mistaken, belief that coercive circumstances were present at time of pleading would not render a guilty plea constitutionally infirm), and Townes v. Peyton, 404 F.2d 456, 461 (4th Cir.1968), cert. denied, 395 U.S. 924, 89 S.Ct. 1778, 23 L.Ed.2d 241 (1969) (holding that a defendant's belief that coercive circumstances were present at the time of his guilty plea must have "at least some foundation in fact" to justify vacation of his conviction). But we have no doubt whatever as to the unreasonableness of appellants' belief.15
The guilty pleas were entered after the prosecution, in its opening argument and through presentation of initial witnesses, had outlined a virtually airtight case that Hunt and Liddy had engineered the Watergate Break-in for purely partisan reasons. After hearing all this, it was patently unreasonable for appellants to continue believing that they had been part of a legitimate "national security" enterprise requiring their silence at trial. It was equally unreasonable, after hearing this evidence and testimony, for appellants to rest upon their subjective beliefs and fail to test them against reality. Either personally or through their counsel, appellants could obviously have sought out responsible Government officials to ascertain whether, in fact, the "national security" was at stake. That the Department of Justice was pursuing the prosecution put the appellants on sufficient notice that full disclosure at trial was not contrary to the national interest; at the very least, appellants had the burden of determining otherwise by directing inquiries to responsible officials in the CIA, or the State Department, or the Defense Department, or the White House. Instead, appellants chose to rely on impressions gathered from the plea decision of a co-defendant. This was unreasonable.
The simplest, and most proper, course was for appellants to bring their apprehensions directly to the attention of Judge Sirica. Appellants now contend that they thought a federal judge was not to be trusted with "national security" information. Here again, appellants are relying on their own subjective impression. It would be utterly destructive of the judicial system if a defendant were to be permitted, without any predicate in reasonableness, to minimize the significance of a misrepresentation to the court by an assertion of his belief in some value perceived as higher than the court's. We are not talking here of examples drawn from history where men will at times deliberately break the law in furtherance of what they conceive to be a higher moral or patriotic goal, but who concede that they have broken the law. Nor is this a case where the defendant seeks to undercut his statements to the court on the basis of what he had falsely been told by his attorney was the position of the judge. United States v. Simpson, 141 U.S.App.D.C. 8, 436 F.2d 162 (1970). The appellants before us had the benefit of vigilant and sophisticated counsel who, presumably, understood the uses of in camera procedures for handling information of a sensitive nature. See, e.g., United States v. United States District Court, 407 U.S. 297, 320-21, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). It would be no excuse if appellants had refused to confide fully in their counsel. United States v. Giuliano, supra, 348 F.2d at 222. But in fact appellants make no claim of hiding their true concerns from Rothblatt and Newmyer. In any event, appellants themselves met in camera with the judge during the plea-taking procedure and had ample opportunity to seek out his advice.
In sum, appellants had every chance to discover that their alleged subjective fears and beliefs were unfounded. Yet they insisted on remaining ignorant of their true situation and on "playing games" with the court. Everett v. United States, supra, 119 U.S.App.D.C. at 65, 336 F.2d at 984. We can perceive no reasonable excuse for this course of action.
Thus we find that appellants' guilty pleas were voluntary and knowing; that on allocution appellants deliberately and repeatedly deceived the court; that withdrawal of the pleas eight months after they were entered would prejudice the Government; that appellants' supposed national security reasons for their guilty pleas were based on entirely subjective beliefs, supported only by their allegations; and that these beliefs, if indeed held, were patently unreasonable.16 While appellants now claim their legal innocence based primarily on their assertion that they believed their burglary was authorized for national security reasons, we need not decide whether their newfound defenses have legal merit.17 Instead, the findings listed above mandate a strict application of the fair and just standard, and only the most compelling explanation by appellants could turn Judge Sirica's ruling into an abuse of discretion. By that standard, appellants' explanation plainly fails. We hold that Judge Sirica's denial of appellants' withdrawal motions, made after their provisional sentencing under 18 U.S.C. § 4208(b), does not constitute an abuse of discretion under the standard of fairness and justice.
Aware of the public importance of these cases, we have given appellants' claims the closest and most thorough attention. It is our considered conclusion that neither appellants' alleged subjective misimpressions at the time of pleading nor their alleged mistakes of fact and law at the time of the break-in constitute legally adequate grounds to require withdrawal of their guilty pleas. This is not to say that these various misimpressions and mistakes must be ignored by the judiciary; if credited, they make out sound reasons for mitigating appellants' punishment. As we noted at the outset, appellants were only the "foot soldiers" of this conspiracy. But this, quite plainly, Judge Sirica also understood. In sentencing appellants he imposed penalties significantly less onerous than those visited upon their co-defendants, their immediate superiors in the enterprise. If further clemency is deemed warranted, a motion to reduce sentence under Rule 35, Fed.R.Crim.P., is always available.
Affirmed.
I concur in the Court's opinion that Barker, Martinez, Sturgis and Gonzalez have not presented this Court with any cognizable reason which could justify withdrawal of their guilty pleas.18 The Court in its decision does not reach the defendants' contention that a reasonable belief in official authorization of their venture—an allegedly reasonable mistake of law—constitutes a legal defense to their convictions.19 Since this contention raises fundamental questions about the nature of criminal responsibility which are addressed by the dissents and which are of central importance to the criminal justice system, I am impelled to add a comment on this proposed defense.20 As a general matter, reasonable mistakes of law do not constitute a defense to criminal actions. However, I entertain serious doubts about the continued validity of this rule and do not think the rule should preclude the responsibility defense asserted in this case.
The proper beginning point for a discussion of the proposed defense is the nature of criminal responsibility. Under what conditions should criminal sanctions operate on a wrongdoer? As will be developed below, the law in its specifics refuses to give a consistent answer. When asked the general question, however, the modern response of the law is perhaps most confidently and eloquently stated by Roscoe Pound:21
Historically, our substantive criminal law is based on a theory of punishing the vicious will. It postulates a free agent confronted with a choice between doing right and doing wrong and choosing freely to do wrong.
One might immediately notice that the concept of a "free" choice to do wrong is merely a conclusion. It says nothing about how free the actor must be or what constitutes a choice. To understand the meaning of the concept, we must look to the concept it purportedly rejects and consider the extent to which it is successful in manifesting this rejection.
The concept that the criminal sanction operates only on the free choice to do wrong was once not accepted at all and is still today accepted only in part. In early English—more correctly Anglo-Germanic tribal—law, criminal liability was established by the simple commission of a forbidden act.22 The actor's intent was irrelevant since the law punished the act itself. An accidental killing was as much a murder as an intentional killing. Under the influence of canonist law, particularly as interpreted by Bracton,23 the common law began in the late 13th and early 14th centuries to abandon this view.24 That process continues up to this day.
The extent to which the concept of "absolute" criminal liability—criminal liability imposed on the basis of an act and nothing else—remains in the law today may be seen by a short review of current doctrine. First, of course, there is the requirement of actus reus—cognizable criminal activity must include a physical act.25 Second, in the 19th century, the various legislatures of England and the American states enacted so-called "public welfare" offenses for which criminal liability was largely absolute.26 Third, and most relevant to the issue in this case, the law ordains that certain elements of a crime otherwise transformed by the modern view are established by the mere commission of the proscribed act regardless of the subjective intent of the actor.
To fully explicate these last stated "exceptions" to the modern view, we must be aware of the polar position to the early English absolute liability rule, a position which present law only distantly approaches. If the law were totally committed to proscribing only the free choice to do wrong, it would permit a wide-ranging inquiry into the subjective motivation of the particular act in dispute and into whether the law should consider that motivation a legally "free choice" to do wrong. To take some contemporary, not-so-random examples of what that might mean: does a poverty-stricken and otherwise deprived black youth from the central city area freely choose to do wrong when he kills a Marine who taunted him with a racial epithet?,27 or indeed, when he steals or uses drugs?; does a "modern Jean Val Jean", stealing to feed his family, freely choose to do wrong?;28 does a narcotics addict freely choose to do wrong when he buys drugs for his own use?29 does a super-patriotic citizen steeped in cold war ideology freely choose to do wrong when he burglarizes the home of an individual whom he suspects of treasonous activity?
We are uneasy in contemplation of these situations; the law reflects this by reducing the scope of the inquiry into criminal responsibility by use of conclusive presumptions. The law in its most demanding view of criminal responsibility establishes that if an individual specifically intends to commit an act and if that act is proscribed by law, therefore the individual freely chose to do wrong.30 But, of course, there is no necessary or even empirical—as far as we have or could have evidence on the proposition—connection between the intent to commit the act and an intent to freely do wrong. The concept of the "vicious will" is reduced to the presumptively vicious will. Furthermore, the law in most instances does not even require this intention to commit the act. It is enough that the act was committed and from that the law presumes intent unless the actor can demonstrate the circumstances were such that he was under an honest or reasonable misapprehension of the salient facts surrounding the act.31 Finally, in limited circumstances the law punishes despite even a perfectly reasonable misapprehension of fact.32
The law's unwillingness to depart from the concept of absolute liability may be explained by the arguments traditionally advanced in support of the rule that ignorance or mistake of law is not a defense,33 the particular form of absolute liability in issue here. Those traditional arguments are three. First is that most concisely advanced by Jerome Hall:34
To permit an individual to plead successfully that he had a different opinion or interpretation of the law would contradict the ... postulates of a legal order. For there is a basic incompatibility between asserting that the law is what certain officials declare it to be ... and asserting, also, that ... the law is . . what defendants or their lawyers believed it to be. A legal order implies the rejection of such contradiction.
On its face this argument would seem to ignore the distinction between justification for an act, which does indeed confirm its legality, and excuse for an act, which assumes illegality of the act but excuses the principal from criminal sanction because he did not freely choose to do wrong.35 The latter in principle implies no validation of the act. Indeed, it is in its nature an express rejection of any such view. Hall's argument also could not be that the law imposes an affirmative duty to discover what the law is since "it is very clear that the guilt of failing to obey [this duty] would bear no proportion to that of disobeying the principal command if known, yet the failure to know would receive the same punishment as the failure to obey the principal law."36
Hall's argument assumes more substance when viewed in light of the second traditional argument usually attributed to Justice Holmes:37
The true explanation of the rule is the same as that which accounts for the law's indifference to a man's particular temperament, faculties, and so forth. Public policy sacrifices the individual to the general good.... It is no doubt true that there are many cases in which the criminal could not have known that he was breaking the law, but to admit the excuse at all would be to encourage ignorance where the law-maker has determined to make men know and obey....
Holmes is not speaking of encouraging ignorance of the law-breaker but of encouraging ignorance of others. A failure to punish an actor might not be inconsistent with concepts of moral blameworthiness but very well might undermine the central purpose of the criminal law—"to induce external conformity to rule."38
Holmes properly applies his argument in light of the purposes of the criminal law. The law in imposing absolute liability is not concerned with individual justice to the wrongdoer but with the interests of the injured party or his surviving kin and with the general reaction in society (both potential wrongdoers and those sympathetic with the injured party) to a failure to punish the act. The subtle question of the wrongdoer's intent is certainly of marginal interest to these citizens and their perception of the seriousness with which the criminal law accomplishes its purposes. Furthermore, by placing the wrongdoer in custody he may be prevented from committing more innocent, yet reprehensible acts in the future. The purpose of the criminal law is to protect society from harmful acts and if this interest were unbounded by other social interests there could be no limit to the amount or occasion of criminal punishment if it caused some marginal perception of a decrease in the incidence of harmful acts.39 In light of this purpose of the criminal law the existence of excusing conditions might seem anomalous indeed since it is the individuals who most likely will benefit from an excusing condition that need the greatest amount of "deterrence."
The law does not fully accept this position and, to my mind, rightly so as the following countervailing arguments suggest. It does not seem realistic to assume that a purely objective criminal sanction will deter harmful acts by those who by definition did not think their actions were proscribed by law or otherwise lacked the free choice not to perpetrate those harmful acts. This is not merely an empirical statement, as the assertion that an absolute sanction will increase deterrence is not, since no evidence upon which the truth or accuracy of these propositions does exist or could exist. To determine the guilt or innocence of one person on the basis of the effect of that determination on others seems inconsistent with the concept that human beings should not be used as means to an end, but are ends in themselves.40 Furthermore, to determine the guilt or innocence of an individual on the basis of a prediction of future dangerousness involves the making of assumptions about individuals without a sound empirical basis,41 and would thus be inconsistent with modern notions of due process.42 To effect retribution upon an individual without consideration of his state of mind seems too barbarous for discussion and in any event the law has moved beyond retribution as a prime justification for the criminal sanction.43
The question thus posed by these competing lines of argument is the extent to which the law accepts the concept of the free choice to do wrong as the basis for criminal liability. Holmes correctly recognized this fundamental question when he stated:44
If punishment stood on the moral grounds which are proposed for it, the first thing to be considered would be those limitations in the capacity for choosing rightly which arise from abnormal instincts, want of education, lack of intelligence, and all the other defects which are most marked in the criminal classes.
There is, to be sure, somewhat of a "regrettable peremptoriness of tone"45 to this statement inconsonant with modern sensibilities, but it phrases the question as bluntly as it should be phrased. Holmes rejects the notion that the law is enacted and administered solely on the moral grounds he has noted. However, few today would seriously dispute Judge Tuttle's observation that "the only way the law has progressed from the days of the rack, the screw and the wheel is the development of moral concepts...."46 There is no reason to believe that this development ended in 1881. Thus, it may be seen that the tension between the two bodies of argument discussed above produces a delicate accommodation between interests of social order and individual rights, between vengeance and moral concepts of guilt. The law does not resolve these arguments. They exist in a perpetual but shifting balance producing disparate and at times illogical answers to various issues of criminal responsibility. The balance to be struck at any one point in time must not be gleaned from logical analysis of these arguments alone, but from conventional morality—the commonly held views of the people in the American community as viewed through their legal and political tradition.47
The third traditional argument against a defense of mistake of law is more directly a concern of judges alone. It was stated by John Selden: "Ignorance of the law excuses no man; not that all men know the law, but because it is an excuse every man will plead, and no man can tell how to confute him."48 The gravamen of this argument is that the state of our knowledge is insufficient to detect the difference between a genuine mistake and a feigned mistake. It expresses as well as can be expressed a fear that opening up the law to potentially difficult and unfamiliar information will destroy its orderliness and lead to manipulation of its rules. However, the argument is ultimately unpersuasive for reasons best expressed by Justice Holmes.49
The tension between the arguments in favor of absolute liability and the arguments in favor of liability based only on the free choice to do wrong has produced some movement toward recognition of a defense of mistake of law in limited circumstances. The issue really posed by defendants' contention is whether these "exceptions" might be extended to cover the proposed defense of Barker, Sturgis, Martinez and Gonzalez. This question is not to be resolved by an a priori choice among the arguments discussed in Part I above. Rather such an extension requires a process of close analogy between the proposed exception defendants would create and the presently recognized exceptions to the concept of absolute liability. If no significant distinctions emerge from this comparison, we would be justified in recognizing the defense if, of course, we were satisfied that result was consistent with the conventional morality. It is in this manner that the doctrine of stare decisis channels and controls judicial discretion without embedding legal rules in concrete.
I begin by comparing the defense proposed by Barker et al. with the so-called "mistake of fact" defense, which is merely an extension of the notion that accidental commission of a crime is a defense to most criminal charges. The justification offered for the distinction between mistakes of fact and law is that mistakes of fact are particular to the incident and often cannot be foreseen and prevented through the exercise of reasonable diligence.50 However valid this distinction might be when applied to ignorance of the existence of a particular law, it certainly has much less validity when applied to reasonable mistakes in the application of legal principles to a particular factual situation. The distinction between "law" and "fact" in such circumstances is tenuous indeed as our experience in the field of administrative law and in defining the scope of jury questions would indicate. For example, if a person mistakenly believes another person is acting "negligently" or "recklessly", is his mistake—upon which we may assume he has predicated a criminal action—one of fact or law? The problem created by this question has seemingly resulted in the extraordinary holding that a mistaken claim of private right of ownership is a mistake of fact.51
Against this background, the leading case of People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514 (1938) assumes a different significance. To be sure, Weiss can be distinguished on the basis of legislative intent. But what is the principle upon which this legislative intent is based? In Weiss the principle motivating the legislature and which the court itself reasons out is that a mistake concerning the defendant's lawful authority negatives the requisite criminal intent. The statute itself is a recognition of a mistake of law defense and thus is itself a source of law as much certainly as a case.52 Whether the principle of the statute is to be applied beyond its immediate intent is simply a question of whether the principle otherwise persuades us or may be distinguished from the situation sub judice. The fact that Section 1250 of the New York Penal Law in effect in 1938 is not operative in the District of Columbia in 1972 is not sufficient ground to distinguish its principle.53
The issue thus framed is whether Weiss, when viewed against the background of the attenuated distinction between fact and law, convinces us that the defendants have alleged a legally cognizable defense. First, it would seem that their defense is factually indistinguishable from Weiss and does involve a case where the distinction between fact and law is more "nice than obvious"54 in that it depends on the authority of one who could reasonably be viewed as a government agent.55 Judge Wilkey's dissent presents the factual material in support of this proposition. Second, it would seem that the mistake of fact defense, at least when concerned with a reasonable mistake,56 is firmly settled in common morality. The limited exception proposed by the defendants would not, it would appear, significantly depart from the principle of conventional morality which finds recognition in the defense of mistake of fact. Furthermore, I have previously stated my view that the criminal law should be opened up to new behavioral information to better approximate, in limited situations, the ideal that the law punishes only the free choice to do wrong.57 I, therefore, agree with the dissents to the extent they find that the defendants have alleged a valid defense.
Even if I did not agree with the dissents on this point, I would still think that, but for their waiver by plea of guilty, the defendants should not be precluded from asserting their invalid defense to the jury. There are many "escape valves" in the law which permit largely unreviewable discretion for certain officials to mitigate harshness caused by the law's inability to meet its highest ideals, including the ideal of punishing only the free choice to do wrong. Those escape valves are sentencing discretion,58 prosecutorial discretion,59 pardon and parole discretion,60 and jury nullification discretion.61 The first three forms of discretion have a long tradition of recognizing mens rea defenses as grounds for mitigation of punishment or for vindication of the offender.62 Indeed, the early common law view was that an individual who accidentally killed another was guilty of murder but was entitled to a pardon as of right!63 This "minimalist" approach64 to the problem of criminal responsibility has found approval in this Court.65 In a previous opinion, I have indicated that jury nullification is a permissible escape valve and should be forthrightly recognized as such.66 Since the Court is en banc, I would adhere to those views.
Despite these views, I remain convinced that the convictions should be affirmed on the basis of the Court's opinion.
MacKINNON, Circuit Judge (dissenting):