United States v. Bernard L. Barker, United States of America v. Eugenio R. Martinez

Opinion Per Curiam.

Circuit Judge WILKEY and District Judge MERHIGE filed opinions reversing the judgment of the District Court. Dissenting Opinion filed by Circuit Judge LEVENTHAL.

PER CURIAM:

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

WILKEY, Circuit Judge:

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

I. FACTS

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

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

Hunt had previously reestablished contact with Barker in Miami in late April 1971, and he met Martinez at the same time. He gave Barker an unlisted White House number where he could be reached by phone and wrote to Barker on White House stationery. On one occasion Barker met with Hunt in the Executive Office Building. By August 1971 Hunt returned to Miami and informed Barker that he was working for an organization at the White House level with greater jurisdiction than the FBI and the CIA. He asked Barker if he would become “operational” again and help conduct a surreptitious entry to obtain national security information on “a traitor to this country who was passing . classified information to the Soviet Embassy.” He stated further that “the man in question . . . was being considered as a possible Soviet agent himself.”

Barker agreed to take part in the operation and to recruit two additional people. He contacted Martinez and Felipe deDiego. Barker conveyed to Martinez the same information Hunt had given him, and Martinez agreed to participate. Like Barker, Martinez had begun working as a covert agent for the CIA after Castro came to power in Cuba. Although Barker’s formal relationship with the CIA had ended in 1966, Martinez was still on CIA retainer when he was contacted.

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

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

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

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

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

II. LEGAL ISSUES

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

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

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

Barker and Martinez raise two arguments to sustain their position that they lacked the mens rea required for a conviction under section 241. The first is that their reasonable reliance on Hunt’s authority — their “mistake of fact mixed with law” —negated the element of intent which is common to most serious criminal offenses, including conspiracy.- It is this claim which requires reversal. Had the law as it stood in 1971 been correctly appraised by the trial judge, a more ample scope of proof and different jury instructions would have been granted appellants, all as discussed in Part IV, infra. The second argument is based upon the particular element of “specific intent” contained in section 241. While the court’s opinion in Ehrlichman analyzes this second argument in detail,⁷ a summary here may be helpful to distinguish the two arguments.

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

It is settled law that a conviction under this section requires proof that the offender acted with a “specific intent” to interfere with the federal rights in question.⁸ This does not mean that he must have acted with the subjective awareness that his action was unlawful. It is enough that he intentionally performed acts which, under the circumstances of the case, would have been clearly in violation of federal law, absent any other defense.

In the instant case, the District Court instructed the jury that a conviction was appropriate under section 241 if they found that the defendants conspired to enter and search Dr. Fielding’s office, for governmental rather than personal reasons, without a warrant and without Dr. Fielding’s permission. Barker and Martinez argue, however, citing United States v. Guest⁹ that the court erred in failing to advise the jury that a conviction was only possible if they further found that an unauthorized search of Dr. Fielding’s office was the predominant, as opposed to incidental, purpose of the conspiracy. They conclude that such a test could not be met here, since their primary objective was the inspection of Ellsberg’s records, not the burglary of Dr. Fielding’s office.

Admittedly, the Supreme Court’s brief discussion in Guest of the “specific intent” requirement is susceptible of the interpretation the defendants would place upon it. The Court did use the words “predominant purpose” to characterize the kind of intent to interfere with the right of interstate travel which could trigger the application of section 241.¹⁰ 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

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

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

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

A.

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

It is a fundamental tenet of criminal law that an honest mistake of fact negatives criminal intent, when a defendant’s acts would be lawful if the facts were as he supposed them to be.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 erroneous advice of another is not an exculpatory circumstance. He is still deemed to have acted with a culpable state of mind.¹⁷

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

B.

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

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

It is readily apparent that few courts would countenance an instruction to a jury — even assuming a criminal prosecution were brought against government agents in such a situation¹⁹ — 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

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 is objectively 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

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

C.

This brings us to the District Court’s second instruction to the jury. Although the defendants characterized their mistake as to Hunt’s authority as one of fact, rather than law,²⁸ they requested an instruction which substantially coincides with my view of the proper test:

[I]f you find that a defendant believed he was acting out of a good faith reliance upon the apparent authority of another to authorize his actions, that is a defense to the charge in Count 1, provided you find that such a mistake by a defendant was made honestly, sincerely, innocently and was a reasonable mistake to make based upon the facts as that defendant perceived them.²⁹

The District Court refused this instruction, regardless whether denominated a mistake of fact or an exception to the doctrine of mistake of law, and advised the jury simply that a mistake as to the legality of an unlawful search was no excuse.³⁰

It is clear from the above discussion of the search innocently conducted under an invalid warrant that the court’s instruction did not state the law, and that a mistake as to the legality of an unlawful search may sometimes be an excuse. The trial judge can justify such an instruction in this context only if there is no legal possibility of equating the reliance of Barker and Martinez on Hunt’s apparent authority with the reliance of a police officer on a judicial warrant subsequently held invalid. And this will be true if and only if Barker and Martinez could not show both (1) facts justifying their reasonable reliance on Hunt’s apparent authority and (2) a legal theory on which to base a reasonable belief that Hunt possessed such authority.

Barker and Martinez meet the test as to facts. There was abundant evidence in the case from which the jury could have found that the defendants honestly and reasonably believed they were engaged in a 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.

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

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.

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

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

Finally, on 19 February 1976, the Attorney General announced his decision, on the recommendation of the Deputy Attorney General and the head of the Civil Rights Division, not to prosecute former CIA Director Richard Helms for his personally authorizing a 1971 break-in at a photographic studio as part of a national security violation investigation.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.

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

As to the reasonableness of the legal theory on which Barker’s and Martinez’s actions rest, they thus have at least the position 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 merits³⁷ 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

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?

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

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. After Katz⁴¹ in 1967 ruled out completely 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.

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

Reversed.

MERHIGE, District Judge:

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:

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 outweighed 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.

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.

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).

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)

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.

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 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.

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— 1. 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.

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 Wisc.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).

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 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.

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 advise 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.

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

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.

1 . A more detailed discussion of the organization and purpose of the “Room 16” unit is in our opinion in United States v. Ehrlichman, No. 74-1882, 178 U.S.App.D.C.-, at pp.-- -, 546 F.2d 910, at pp. 914-915.

2 . Barker Appendix at 55.

3 . United States v. Ehrlichman, 376 F.Supp. 29, 35 (D.D.C.1974).

4 . See generally Offer of Proof, Barker Appendix at 86.

5 . Barker Appendix at 104-05.

6 . Tr. 2525-26:

In order to establish the requisite intent the Prosecutor must show that the object of the conspiracy and the purpose of each defendant was to carry out a warrantless entry into and search of Dr. Fielding’s office without permission.

In determining whether or not each defendant had the requisite intent, you should keep in mind that a mistake of fact may constitute a defense to the conspiracy charge but a mistake of law is not a defense.

Thus, if one of the defendants honestly believed that a valid warrant had been obtained, such a mistake of fact would render him innocent of the alleged conspiracy because it cannot be said that he intended to conduct a warrantless search.

On the other hand, if the defendant was fully aware of the relevant facts — that the search lacked both warrant and Dr. Fielding’s permission, but erroneously believed that the search was still legal, that would constitute a mistake of law and a mistake of law is no excuse.

In other words, an individual cannot escape the criminal law simply because he sincerely but incorrectly believes that his acts are justified in the name of patriotism, or national security, or a need to create an unfavorable press image, or that his superiors had the authority without a warrant to suspend the Constitutional protections of the Fourth Amendment.

7 . United States v. Ehrlichman, No. 74-1822, 178 U.S.App.D.C.-, at pp.---, 546 F.2d 910, at pp. 917-923.

8 . See, e. g., United States v. Guest, 383 U.S. 745, 753-54, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966).

9 . 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1966).

10 . A specific intent to interfere with a federal right must be proved, and at trial the defendants are entitled to a jury instruction phrased in those terms. Thus, for example, a conspiracy to rob an interstate traveler would not, of itself, violate § 241. But if the predominant purpose of the conspiracy is to impede or prevent the exercise of the right of interstate travel or to oppress a person because of his exercise of that right, then, . . . the conspiracy becomes a proper object of the federal law under which the indictment in this case was brought.

Id, at 760, 86 S.Ct. at 1179.

11 . 417 U.S. 211, 94 S.Ct. 2253, 41 L.Ed.2d 20 (1974).

12 . Id. at 226, 94 S.Ct. at 2263.

13 . Id.

14 . Barker Br. at 31-32.

15 . 1 Wharton’s Criminal Law and Procedure § 157 (Cum.Supp.1974); Williams, Criminal Law: The General Part § 52-74 (2nd ed. 1961); Model Penal Code § 2.04(1) (P.O.D.1962). It is important to distinguish simple ignorance of fact from mistake of fact. Simple ignorance is generally not an excuse, because in such a situation the defendant cannot claim his action was lawful under the facts as he affirmatively believed them to be. See United States v. Barker, 168 U.S.App.D.C. 312, 371, 514 F.2d 208, 267 & n. 73 (1975) (Wilkey, J„ dissenting); Williams, supra, at 151-56.

16 . Wharton’s, supra note 15, at § 162; Williams, supra note 15, at c. 8; Hall & Seligman, Mistake of Law and Mens Rea, 8 U.Chi.L.Rev. 641, 642 (1941).

17 . See Perkins on Criminal Law 926-27 (2nd ed. 1969).

18 . Tr. at 2525-26, note 6, supra.

19 . Police officers, receiving and acting on such defective warrants, are rarely prosecuted. See Model Penal Code § 2.04 (P.O.D.1962).

20 . For a full discussion of the various rationales which have been forwarded to support the mistake of law doctrine, see United States v. Barker, 168 U.S.App.D.C. 312, 331-41, 514 F.2d 208, 227-37 (1975) (Bazelon, J., concurring).

21 . See Hall & Seligman, supra note 16, at 675-83. In support of the general proposition that in compelling circumstances the law will not deny a defense to individuals who have mistakenly relied on the authority of a public official, see Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (1965), Raley v. Ohio, 360 U.S. 423, 79 S.Ct. 1257, 3 L.Ed.2d 1344 (1959), and United States v. Mancuso, 139 F.2d 90 (3rd Cir. 1943). See also Perkins, supra note 17, at 926-27.

22 . See generally Williams, supra note 15, at 293-345.

23 . In view of the strong public policy backing the mistake of law doctrine and the necessity for compelling justification to overcome it, it would appear rarely tenable to allow a defense based upon an irrational reliance on the authority of a public official. See Hall & Seligman, supra note 16, at 647. In contrast, although there is some authority to the effect that a mistake of fact must be reasonable to negate intent (Wharton’s, supra note 15, at 382 n. 19), the better, and more widely held view is that even an unreasonable mistake of fact, if honest, constitutes a valid defense. Williams, supra note 15, at 201; Model Penal Code, Tentative Draft No. 4, at p. 136 (Commentary on § 2.04(1) (1953)).

24 . The trial judge’s error in this regard was certainly understandable. When the issue is one of reliance on authority, the distinction between law and fact becomes extremely difficult to discern. See United States v. Barker, 168 U.S.App.D.C. 312, 331-74, 514 F.2d 208, 227-70 (opinions of Bazelon, C. J., concurring, MacKinnon, dissenting, and Wilkey, dissenting). Indeed, that difficulty underscores the correctness of my position in this case that in situations where a citizen is innocently drawn into illegal action at the behest, and on the authority, of a government official, he should be allowed a defense of mistake of law based upon his reasonable reliance. If his mistake were labelled one of fact, it would provide a complete defense no matter how unreasonable the reliance. See note 23 supra.

25 . This common law exception to the mistake of law doctrine is codified in section 3.07(4)(a) of the Model Penal Code, which states:

(a) A private person who is summoned by a peace officer to assist in effecting an unlawful arrest, is justified in using any force which he would be justified in using if the arrest were lawful, provided he does not believe the arrest is unlawful.

26 . See the discussion of People v. Weiss, 276 N.Y. 384, 12 N.E.2d 514 (1938), in the opinions of Chief Judge Bazelon, concurring, and Judges MacKinnon and Wilkey, dissenting, in United States v. Barker, 168 U.S.App.D.C. 312, 338-40, 346-47, 369-74, 514 F.2d 208, 234-36, 242-43, 265-70.

27 . The Special Prosecutor argues in the instant case that since the defendants were not ordered to aid in the Fielding break-in, they can draw no support from the common law “call to aid” rule. He cites section 3.07(4)(b) of the Model Penal Code for- the position that when one is “not summoned” but nevertheless aids a police officer in making an unlawful arrest, only a mistake of fact is a valid defense. It would appear, however, that a citizen who is “asked” or “entreated” to assist a police officer bears a heavy civic responsibility to comply. He is effectively, if not technically, “summoned.” In such a situation, although we might hesitate to presume the reasonableness of his action as a matter of law, if the citizen can show that his mistake as to the officer’s lawful authority was in fact reasonable under the circumstances, I submit he makes out a valid defense.

28 . See note 24 supra.

29 . Barker Appendix at 104-05.

30 . Tr. 2525. See note 6 supra.

31 . 407 U.S. 297, 321-22, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Barker and Martinez do not allege that they thought the President personally had authorized the operation, nor does the issue arise here as it does in Ehrlichman. Laymen Barker and Martinez would not be expected to have cognizance of the forty years’ practice whereby foreign affairs surveillances were authorized without a warrant either by the Attorney General or President. Their justification is a reasonable mistake of law, and in their position and known facts a reasonable mistake of law involves a mistake as to Hunt’s authority, not that of the Attorney General or President.

32 . See Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 96, 516 F.2d 594, 689 (1975) (en banc) (Wilkey, J., dissenting), cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 187 (1976).

33 . The Record of the Association of the Bar of the City of New York, Vol. 30, p. 331 (May-June 1975).

34 . United States v. Butenko, 494 F.2d 593 (3rd Cir. 1974), cert. denied, Ivanov v. United States, 419 U.S. 881, 95 S.Ct. 147, 42 L.Ed.2d 121 (1974). United States v. Brown, 484 F.2d 418 (5th Cir. 1973). Cf. Zweibon v. Mitchell, 170 U.S.App.D.C. 1, 516 F.2d 594 (1975) cert. denied, 425 U.S. 944, 96 S.Ct. 1685, 48 L.Ed.2d 187 (1976) (distinctly non-collaborators with, the Soviet Union were the objects of electronic surveillance).

35 . Memorandum for the United States as Amicus Curiae, p. 2. K

36 . The Department of Justice announcement said:

The Department of Justice will not prosecute former CIA Director Richard Helms and others for their role in a 1971 break-in at a photographic studio in Fairfax City, Virginia, Attorney General Edward H. Levi announced today.

The Department’s investigation involved the surreptitious entry by CIA agents and Fairfax City police into a photographic studio on February 19, 1971.

The Federal statute under which prosecution was considered is Section 242 of Title 18, United States Code.

The leading case interpreting that statute, Screws v. United States, 325 U.S. 91, 104, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945), requires proof that the accused willfully deprived an individual of a specific and well-defined constitutional right.

After studying the facts carefully and interrogating the witnesses at length, the Department concluded that the evidence did not meet the standard set by the Screws case to establish a criminal violation of the statute.

The written announcement was amplified, according to The Washington Post of 20 February 1976, pp. Al and A6, as follows:

Justice Department sources said that Helms clearly thought he had the authority to approve a break-in and did so to complete a security investigation. . . .

“It was impossible to prove he (Helms) had intent to violate anyone’s civil rights,” one Justice Department source said. .

The 1947 law setting up the CIA says, “The Director of central intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.”

Under this law Justice Department attorneys said they felt Helms could reasonably argue the protection required extraordinary means.

Mr. Helms’ counsel is reported as commenting, “If the government has a right to conduct electronic surveillance, then it has a right to make surreptitious entry.” The Washington Post, 20 February 1976,. at Al.

Naturally I share my colleague’s distaste for the necessity to rely upon an Executive Départment’s press release or a newspaper article related thereto. Where prosecution is declined, however, by definition no paper is ever filed in a court. An official written announcement of the Department of Justice, giving a terse summary of the legal rationale supporting the decision, is more than is usually available and all that can ever be expected.

37 . Albeit Judge Leventhal makes his statement in Ehrlichman, where the issue of apparent approval by a higher authority does not arise. No one represented to Ehrlichman that he was acting on higher authority for Ehrlichman was higher authority in that case. See court’s opinion in Ehrlichman, No. 74-1882, 178 U.S.App.D.C.-, at p.-, 546 F.2d 910 at p. 923."“

With regard to the comparative positions of the offices of the Attorney General and the Special Prosecutor, and with all due respect to the public service this special task force has rendered in a time of crisis, it is a special task force created in 1973 which will shortly disband and close its files. The Attorney General has been with us since President Washington’s first cabinet meeting in 1789, and is not about to go out of business. The Attorney General, then, represents a long perspective of what our legal problems in this most delicate area of national security and constitutional principles have been for 200 years and are likely to be in the future. That perspective of the Attorney General is deepened by the vast accumulated experience reposing in the personnel and files of the Department of Justice, heightened by the close personal relationship between President and Attorney General at some periods of our history, and sharpened by the current awareness of the present Attorney General as to what great problems in this area loom in the immediate future. In evaluating the conflicting views of the two offices, these factors surely must be placed in the balance by any court ultimately applying constitutional principles to national security problems.

38 . Judge Leventhal asserts 178 U.S.App.D.C. p. -, 546 F.2d p. 937 “[t]here may well be a critical difference between electronic surveillance and physical entries for the purpose of search and seizure . . .,” and approves the Special Prosecutor’s stress on certain language in Keith. The partially quoted thought from the Supreme Court complete is, “Though physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed, its broader spirit now shields private speech from unreasonable surveillance. (Citing Katz, Berger, and Silverman ) Our decision in Katz refused to lock the Fourth Amendment into instances of actual physical trespass.” 407 U.S. at 313, 92 S.Ct. at 2134 (emphasis supplied).

I cannot agree that Justice Powell’s language, specifically cited by Judge Leventhal and the Special Prosecutor to prove a constitutional difference “between electronic surveillance and physical entries,” supports the difference at all. I respectfully suggest the opposite meaning is conveyed, i. e., physical and electronic entry stand on the same footing, good or bad. And that is all that it is necessary to understand to validate Barker’s and Martinez’s argument that they lacked the requisite criminal intent in 1971, given the state of Fourth Amendment law then and now.

39 . It can be readily agreed that the framers of the Fourth Amendment were primarily concerned with physical intrusions by governmental officials into the sanctity of the home. It is extremely doubtful, however, that this tells us anything about how they would have regarded electronic intrusions. Not being blessed with the telephone, they never considered the problem of wiretaps. A good argument can be made that electronic, “non-trespassory” searches are more intrusive than their “trespassory” counterparts. United States v. Smith, 321 F.Supp. 424 (D.D.C.Cal.1971), reasoned:

[Electronic surveillance is perhaps the most objectionable of all types of searches in light of the intention of the Fourth Amendment. It is carried out against an unsuspecting individual in a dragnet fashion, taking in all of his conversations whether or not they are relevant to the purposes of the investigation and continuing over a considerable length of time. If the government’s “reasonableness” rationale is accepted in this case, then it would apply a fortiori to other types of searches. Since they are more limited in time, place and manner, they would be even more “reasonable.”

Id. at 429.

40 . The only possible rationale for distinguishing electronic information gathering from physical searches is that, in the District Court’s words, the former is “less intrusive” than the latter. Exactly why this might be so is not explained in Judge Leventhal’s opinion. See note 38 supra. The Special Prosecutor, however, defends the distinction by repeatedly emphasizing in his brief that a wiretap is non-trespassory. He suggests that if the Government must effect a trespass in order to place wiretapping or bugging equipment — and certainly if a trespass is made in order to photograph documents — then immunity from the warrant requirement in cases related to foreign affairs is lost.

The Special Prosecutor cites no authority in direct support of this proposition. He relies essentially on an absence of discussion of the question to create a heretofore unsuggested distinction. Neither logic, history, nor case law, however, provides an adequate basis for this artificial differentiation.

From a logical standpoint, if a President has the authority pursuant to his foreign affairs power to approve surveillance activities, it would appear that his prerogative is no different from that of a court reviewing a warrant request in a more mundane criminal setting. If there is a “national security” exemption (which neither the Supreme Court in Keith nor this court in Zweibon ruled out), the task of determining whether such a search is justified falls to the Executive, rather than to the courts. All the elements of speed, secrecy, and Executive expertise which support vesting this power in the President where wiretapping (whether “trespassory” or “non-trespassory”) is involved also apply where a photographic search is in question. Court-ordered surveillances are sometimes trespassory, sometimes not, depending on the requirements of the situation, and so are Executive surveillances in the foreign affairs field.

The record in a recent case in this court provides documentation of judicial authorization for government agents to “Intercept wire communications [etc. and to] Install and maintain an electronic eavesdropping device within the [room of a building at a specific address] to intercept [certain specified] oral communications . . . concerning [certain] described offenses. Installation of the above described eavesdropping device may be accomplished by any reasonable means, including surreptitious entry or entry by ruse.” United States v. Barker, 168 U.S.App.D.C. 312, 345-46, 514 F.2d 208, 241-42 (1974) (MacKinnon, J., dissenting). Of course, if a trespass is not necessary in a particular case to effect an eavesdrop, the court need not gratuitously authorize a surreptitious entry; but few would question a court’s power to do so in those cases in which it is required.

41 . United States v. Katz, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

1 . This Circuit has held that jury instructions on nullification are improper. United States v. Dougherty, 154 U.S.App.D.C. 76, 473 F.2d 1113 (1972). The Court acknowledges, however, that a jury still may acquit in disregard of the instructions on the law given by the trial judge. Id. at 1132.

2 . Similarly, the defense of mistake of law historically given a private person when he responds to a request by a police officer to aid in making an arrest and the arrest proves ultimately to have been unlawful, is limited by the requirement that the party aided has the authority to make the arrest. E. g., Dietrichs v. Schaw, 43 Ind. 175 (1873); Moyer v. Meier, 205 Okl. 405, 238 P.2d 338, 340 (1951).

3 . E. g., Claybrook v. State, 164 Tenn. 440, 51 S.W.2d 499 (1932); State v. Godwin, 123 N.C. 697, 31 S.E. 221 (1898). But see Dupree v. State, 184 Ark. 1120, 44 S.W.2d 1097 (1932).

4 . E. g., United States v. Mancuso, 139 F.2d 90 (3d Cir. 1943); State v. O’Neil, 147 Iowa 513, 126 N.W. 454 (1910); State v. Chicago, M. & St. P. Ry. Co., 130 Minn. 144, 153 N.W. 320 (1915); State v. Longino, 109 Miss. 125, 67 So. 902 (1915); State v. Jones, 44 N.M. 623, 107 P.2d 324 (1940). But see Hoover v. State, 59 Ala. 57 (1877).

5 . E. g., Staley v. State, 89 Neb. 701, 131 N.W. 1028 (1911); State v. Whiteaker, 118 Ore. 656, 247 P. 1077 (1926).

6 . This is not to say that I concur in the view of the Attorney General that there is a “national security” exception permitting physical intrusion in a citizen’s home or office on specific approval of the President or Attorney General, even in the absence of a valid warrant. That issue is not before us.

7 . See Footnotes 4 and 5 in Judge Leventhal’s opinion.