United States v. Barke

546 F.2d 940 (1976)

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Nature of the Case

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Facts

The Pentagon Papers were leaked to the press in 1971. Their leakage caused President Nixon to form a special unit that was to investigate the source of the leak and to prevent similar leaks from occurring in the future. Ehrlichman, assistant to the president on domestic matters, was assigned to lead the special unit. The primary focus of the group was on Daniel Ellsburg, who was the man who released the Pentagon Papers to the press. A plan was hatched to perform a covert operation to examine all the records held by the psychoanalyst of Ellsburg so long as it was not traceable back to the White House. Without permission of the President or the Attorney General and without a warrant, Ehrlichman and his 'crack' covert team that included G. Gordon Liddy and Howard Hunt devised the plan to break into the psychoanalyst’s office. They hired Barker (D) to do the actual physical break-in. D recruited two other people in the operation. D and his two men were told by Hunt that the break-in was for the purpose of catching an individual who was leaking information to the Soviet Union. D and his men had no reason to question these facts and D was working on a need to know basis. D and his men failed to find the files they were assigned to get from the psychoanalyst’s office. D and Martinez were indicted, and at their trial, the trial judge refused to give jury instructions nor allow evidence of their theory that they should not be found guilty because they reasonably relied on Hunt's apparent authority. D was convicted and appealed.