The common law definition of “burglary” (which is now sometimes re-named as "breaking and entering) had a requirement that the person intended to commit an offence inside. The wiki article gives a good summary:
But note that in the section on the US, it suggests that intention to infringe civil rights might qualify as an underlying offence? Would that have qualified for the Fielding break-in, Bricker?
Recording phone calls can be illegal depending on the state. NY is “one party consent,” meaning Nixon could have recorded a conversation with Nelson Rockefeller, not told Rockefeller, and no law would be broken in NY’s eyes. California on the other hand is a two-party consent state, so recording a call with Governor Reagan would have been illegal under CA law (unless Nixon told Reagan that he was recording, and Reagan said fine).
However, I don’t know if the laws were the same in the early 70s, so someone else will have to weigh in.
Not to sidetrack the thread, but I believe that part of the Monica Lewinsky kerfuffle were state charges against Linda Tripp for recording her calls with Lewinsky–if I remember one was in MD and MD is two-party consent.
Is this GQ?
Despite your being pretty sure, you are wrong.
Someone charged with robbery or burglary in DC is prosecuted by the US Attorney for the District of Columbia, or by a prosecutor in his office. That US Attorney is appointed by the President, and is a federal prosecutor. Currently the office is held by the ruggedly handsome Channing Phillips.
They are tried by the Superior Court of the District of Columbia, which consists of a chief judge and 61 associate judges, each and every one a federal judge appointed by the President. Their initial appearance might be before one of them, or before one of the 24 federal magistrate judges that assist in matters such as setting bond and hearing arraignments.
Apppeals from a ruling of this court are heard by the federal District of Columbia Court of Appeals, which – you guessed it – consists of federal judges appointed by the president.
Minor traffic matters are handled by the DC Attorney General, but still before a federal judge.
Most probably not, although it’s hard to know exactly what that author was imagining when the sentence was written: “Burglary may be an element in crimes involving rape, arson, kidnapping, identity theft, or violation of civil rights; indeed the “plumbers” of the Watergate scandal were technically burglars.” That reads as though the burglary is one element of the denial of civil rights. So far as I am aware, there’s a federal offense involving denial of civil rights, but it’s not something that would reach this conduct. If you’re interested, I can share my thinking more fully.
In 1973, in California, the prosecution had to show intent to commit a crime inside. Usually this is not a problem, since very few people break into houses only to “behave themselves” once inside.
Sort of.
They also refused a plan to buy a firetruck, set a fire, and then arrive in the confusion to remove documents they wanted. No moral qualms, apparently, but the fire truck was too expensive.
Yes, please! I always enjoy your elaborations of US criminal law - find them very helpful.
I can’t be the only one surprised that breaking into a home without the homeowner’s permission isn’t a crime all by itself? Trespassing, at least, plus whatever property was destroyed “breaking” in? Or are these just civil matters?
Interestingly, my cousin used to break into his neighbor’s house when he knew they were gone and just sit on the couch, watch TV, and soak up the air conditioning. He never was one to be very law-abiding, but here we are.
Oh, no – sorry to leave that impression. Just meant to say it wasn’t burglary – there was an offense called “housebreaking,” although that too not applicable in Fielding’s case since what was broken into was an office, not Fielding’s home. And as you intuit, anything broken or damaged would indeed be a crime on its own. But in Fielding’s case the crew entered without damaging anything, drawing on Liddy’s FBI training in “black bag” entry.
But typically, the charge of burglary would be easy to prove, because a finder of fact can infer intent from the evidence. You didn’t need to have a tape recorded “Burglar’s Manifesto,” to conclude that someone breaking into a home intended to commit a crime therein.
I can’t find California Code from 1972, but looking at older codes, from the 19th century, the distinction between burglary and housebreaking was that burglary took place at night, and housebreaking took place during the day, but in 1872, the offense of housebreaking was replaced by “Burglary in the second degree”, and burglary replaced by “Burglary in the first degree”
Wasn’t another element “dwelling place?” And don’t they both require an intent to commit a crime thereini?
Also, regarding entry to Fielding’s office, apparently the first time, Liddy and Hunt entered through deceit (convincing the cleaning lady to unlock the door by saying they were doctors who had to leave Fielding a message), in order to identify the files, and the second time, when the photography was actually done, Liddy and Hunt stayed outside, while Barker, Martinez, and de Diego broke the window, pried open the door with a crowbar, and then, after the photographs were taken, smashed windows and doors and trashed the office, in order to convince the police it was done by “junkies looking for drugs”. So the second case, at least, appears to be burglary under California law, at least, for Barker, Martinez, and de Diego. I’m not sure what the conspiracy law in California was at the time, but that seems like it would be conspiracy for Liddy and Hunt.
They both require intent to commit a crime therein. Here were Burglary and Housebreaking in the 1871 code (before Housebreaking was abolished in 1872)
I agree that whatever crime it is includes Liddy and Hunt as conspirators or principals.
And the destruction of the interior is clearly a crime which was intended at the outset.
So – I was wrong. Based on this set of facts, it’s clearly burglary, not at common law but under California law.
Teach me to get on a high horse about GQ answers!
But presumably Nixon would be doing the recording from federal territory, so wouldn’t the jurisdiction be exclusively federal, regardless of whom he called?
I can actually see the sense of adding the criminal intent clause. Would you want to see firefighters, for example, being held legally liable when they break into a building to put out a fire?
Ellsberg has raised an interesting point. He was not aware of the 1971 break-in of Fielding’s office until his trial in 1973. He pointed out that if it had been known earlier, the Nixon administration would have most likely disbanded the “plumbers” unit in an attempt to cover their tracks. And if that had happened, the plumbers wouldn’t haven’t been available in 1972 so the Watergate break-in would have had to have been called off.
I don’t know, maybe federal trumps state here, and I don’t know what the relevant federal statute is/would have been.
BRICKER, help!
I don’t think the jurisdiction would be exclusively federal, but it’s not an easy question.
“Choice of law” disputes are not nearly as common in the criminal law realm as they are in civil. California has, IIRC, a very comprehensive statutory scheme that in effect says, “If any aspect of the act impinges on California, California asserts jurisdiction.” Here, the “protected interest” rule probably would give California some traction, but I have no idea without some research.