(concurring in part and dissenting in part):
My views concur with those expressed in the majority opinion, in which I have participated, except with respect to the issues of pretrial publicity and the convictions on Count 2.
PRETRIAL PUBLICITY
If ever in the history of our country there was a criminal case which by law had to be transferred to another place for trial because of prejudicial pretrial publicity a lone, this is that case. When this case was before us prior to trial, I stated that the venue should have been changed to some place other than the District of Columbia. I adhere to that position. The trial court here denied a timely pretrial motion for change of venue and in so doing denied defendants one of their most basic constitutional rights — the right to a fair trial. Under the rule that this court ordinarily applies we should therefore reverse the convictions and grant a new trial.
The majority opinion in this case applies a double standard that results in denying the defendants a right which the Constitution and the Supreme Court have secured to all criminal defendants in United States federal courts, the right to have their request for a change of venue determined by the federal standard. The majority goes on to make an inadequately thin and erroneous analysis of the question of whether the publicity in the Washington, D.C. area was so exceptionally overwhelming on its face as to require changed venue at defendant’s request. Finally, in exploring the question of whether the jury candidates reflected actual bias, the majority, with no depth of analysis, erroneously evaluates the voir dire proceedings.
I. THE CRIMES AND THE RESPONSIBILITY OF THE COURT
The crimes for which the appellants are convicted are flagrant. The convictions encompass callous disregard of duty, in some cases sworn duty, to our country. Our era is as perilous as any in our country’s brief history, and the crimes in this case paralyzed our executive branch, denying us national leadership in an era when leadership was vitally needed.
The duty of this federal court is to apply the federal criminal law, as secured under the Constitution and laws of the United States, to the cases of the appellants. The very system of laws which were betrayed in the crimes charged must not be manipulated to obtain convictions in this particular case. Such manipulation is a disservice. It can in the end harm our Republic in the same manner as the acts that created this case in the first place.
The men here have exactly the same rights as any other defendants indicted in federal court, neither more nor less.
*364II. THE PRETRIAL PUBLICITY IN WASHINGTON
A. The Scope and Duration in General
The majority gingerly refers to the pretrial publicity in these terms:
the pre-trial publicity in this case, although massive . . . (Majority opinion at 284 of 181 U.S.App.D.C., at 61 of 559 F.2d)
and,
Without attempting to deny that the pretrial publicity, in this case was extraordinarily extensive . . .. (Majority opinion, note 34)
These allusions, very substantially understated as they are, are all the majority has to say on the scope of the publicity. They border on casualness. They shut out the truth.
Actually, the pretrial publicity in this case is unequivocally unique in American history. Its duration and level of sustained media attention from June 18,1972, the day after the arrests following the Watergate break-in, to May 1, 1974, the date of the appellants’ first motion for changed venue (Docket entry 56), swelling in an ever increasing crescendo, admits of comparison only with the media coverage for outbreaks of war. Indeed, the sustained daily coverage accorded this case on television and in newspapers finds parallel in recent memory only with the daily coverage of the war in Vietnam.
The crush of publicity was unprecedented, from the opening build-up at the Senate hearings, through the Presidential preimpeachment proceedings, and continuing up to the time of the beginning of the instant trial. This opinion is not concerned with subsequent publicity because it could not affect the sequestered jury. Statistical findings on the extent of the national publicity are not in the record, and do not yet appear to be available in the literature.
B. The Level of Coverage in Washington, D.C.
The record here discloses a great volume of clippings from the papers in the Washington, D.C. area and a set of anecdotal comments. These materials suffice to make the point even though national statistics were not available. The Appendix submitted by Mr. Parkinson in an additional change of venue motion on May 1, 1974, contains selected clippings principally from the Washington Post, the Washington Evening Star and Daily News, and the New York Times for the period June 18, 1972, to May 1, 1974, and comprises four boxes (Docket entry 84, Appendix A, Folders 1-37). It can be conservatively estimated that that submission alone contains over 50,000 column inches from the Washington Post and the Washington Evening Star and Daily News of pretrial publicity. This is an average of some SO to 120 column inches per day, day in and day out, for the Washington, D.C. area from Washington, D.C. papers alone.1
The Watergate Special Prosecutor himself says flatly:
No group of prosecutors and supporting personnel ever have labored under greater public scrutiny.
Watergate Special Prosecution Force Report 1 (1975). And,
By the time of Archibald Cox’s appointment as Special Prosecutor, “Watergate” had become the major journalistic event in the nation.
Id. at 227. With respect to the non-newspaper and non-broadcast record alone he states:
*365approximately a quarter of a million pages of Watergate facts already exist for public consumption. This material includes the public hearings and published reports of the Senate Select Committee on Presidential'Campaign Activities and the House Judiciary Committee, other existing and forthcoming reports of Congressional committees, the voluminous records of the criminal trials resulting from [the Watergate Special Prosecution Force’s] investigations, evidence obtained in several civil suits, and numerous books and articles analyzing the events of “Watergate” from a variety of perspectives.
Id. at 2.
The majority opinion at footnote 34 states that:
we note that appellants’ submissions overstate the amount of publicity by including, apparently, every story concerning the many difficulties of the last years of the . Nixon administration, whether or not those stories discussed appellants. We also note that the overwhelming bulk of the publicity dealing with the conspiracy related to information properly brought out at trial.
But the essential point is that the amount of pretrial publicity that did discuss these cases has never before been equalled. The coverage in Washington, D.C. by Washington papers alone, without considering the additional tally of television and radio coverage, worked as an indivisible whole, casting “All the President’s Men” as criminals. The implication from the majority, that the individual reader does not link publicity in such a manner, is contrary to fact. The effect of the mass of publicity is indivisible. The majority’s apparent suggestion that “conspiracy related information” is the only relevant information is also incorrect. The cumulative effect of the publicity was inexorably to create a poisoned body of public opinion of massive proportions particularly in the District of Columbia, from which the jury was drawn.
Moreover, with respect to so-called “conspiracy related information” significant portions of such information did not come into the trial. For example, Washington newspapers made the following statements about Watergate matters in the April 19 to May 18, 1973 period alone:
“. . . breaking the rules of decent political competition — paying youngsters to infiltrate opposition headquarters, corrupting them to pretend . . . .” (Haldeman App. 2-3)
“ ‘. . . Honesty and following those orders [from Haldeman and Ehrlichman]., were inconsistent.’ ” (Haldeman App. 4) “. . . nothing the President’s men would not do to promote Mr. Nixon’s interests. . . . There lies the logic of the sabotage campaign
. .” (Haldeman App. 6)
“. . . lie and cheat and corrupt the institution of government . . . .” (Haldeman App. 7)
“. . . Mardian used government gum shoes to stake out my house and tail me . .” (Haldeman App. 16)
“. . . Mitchell tried in 1969 to influence a ruling from two Supreme Court justices in a set of wiretapping cases.” (Haldeman App. 21) “. . .He [Haldeman] stayed behind the scenes, using loyal aides to do the dirty work . . . .” (Haldeman App. 35)
“. . . elaborate, continuous campaign of illegal and quasilegal undercover operations conducted by the Nixon administration since 1969 . . . under the direct supervision of . . . H. R. (Bob) Haldeman, . John N. Mitchell and Robert C. Mardian . . .” (Haldeman App. 37-38)
“The Use of the Secret Service to obtain information on the private life of at least one Democratic presidential candidate in 1972.” (Haldeman App. 38)
“. . . possession of Sen. Thomas Eagleton’s confidential health records by Ehrlichman and the use of paid ‘vigilante squads’ by the White House and Justice Department to conduct illegal wiretapping, to infiltrate radical organizations for provocation and to conduct political espionage.” (Haldeman App. 40)
*366The simple statistic of an average of 30 to 120 column inches of coverage per day for a two-year period, in local Washington papers alone, is staggering even without considering any other form of media coverage. It has no apparent parallel in legal history. It cannot be mincingly alluded to in the course of disposing of this case, for it goes to the heart of the question of whether appellants were accorded their constitutional right to a fair trial.
C. Comparison of Washington With Other Areas
Since appellants sought change of venue from Washington, D.C. on the basis of pretrial publicity, the first question is whether the coverage in Washington, D.C. was exceptionally heavy as compared to the rest of the country.
The record does not disclose data on television and radio coverage of Watergate, but it is probably accurate to assume that, roughly, the television and radio coverage of Watergate was at least as extensive in Washington, D.C. as elsewhere, particularly since much of the television coverage was on day-long nationally televised Senate hearings and evening news shows. If there is error in this assumption, it probably understates the coverage in the Washington, D.C. area.
The distinguishing factor thus becomes the newspaper coverage. The evidence is ample that the press coverage in Washington, D.C. was substantially heavier than elsewhere in the country. More importantly, there is no evidence or .analysis in the record or the majority opinion indicating that the newspaper coverage in the rest of the country was even roughly as extensive as it was in Washington.
The Washington Post stood at the center of the disclosure. It accorded massive coverage to Watergate. The Special Prosecutor notes the key role of the Washington Post. In writing of the events after Mr. Cox’s appointment to head the prosecution forces he says:
The Senate Select Committee hearings, which had begun a week earlier, were covered live daily by the major networks, enabling millions of Americans to witness the unfolding of the scandal. Inspired or embarrassed by the persistent investigative reports of the Washington Post, many reporters assigned to cover the affair scrambled frantically in the competition to discover and reveal new examples of executive branch misdeeds.
Watergate Special Prosecution Force Report 227 (1975). He also notes a reminder of the Washington Post’s exceptional vigor in digging into Watergate matters:
Fortunately, [the Watergate Special Prosecution Force] experienced very few suspected leaks. In August 1973, it was discovered that some information discarded as trash had made its way to the Washington Post. A shredder was purchased to prevent any such experience in the future.
Id. at 230.
More importantly, there is the evidence that the newspaper coverage a lone in Washington, D.C. stayed at an average level of 30 to 120 column inches a day, accumulating to a total of some 50,000 column inches for the entire 22 month period between disclosure of the break-in and the May 1, 1974 change of venue motion. The Government’s response to the motion (Docket No. 142) certainly offers no argument that the newspaper coverage elsewhere in the country was the same as in Washington, D.C. Judge Sirica, in his disposition of the motion, makes no suggestion that the coverage was the same (Hearing of June 12, 1974, Docket No. 180).
The most compelling evidence of the exceptional level of newspaper coverage in Washington, D.C. is the Sindlinger Affidavit, attached to the May 1, 1974, Change of Venue Motion (J.App. 284, Docket No. 56). The affidavit presents a public opinion survey that examined the question of pretrial publicity in the Watergate case. The affidavit is appended to this dissent as Appendix A. The survey results show, at pp. 401-402 of 181 U.S.App.D.C., at pp. 178-179 of 559 F.2d that Washington, *367D.C. was the only sampled source where newspapers were found to be the most important influence on public opinion. The data is presented as follows:
In thinking of your own opinions with regard to the guilt or innocence of the defendants in the cases we have been talking about — what do you think has most influenced you — what you have read in the newspapers or what you have read in magazines, or your own political position? 2
In the nation as a whole and in the three other sampled areas, television was clearly the most influential factor. The validity of the poll has not been challenged. The methodology is set forth in the affidavit and speaks for itself. In its response to the change of venue motion, the Government said simply “. . . we do not find it necessary to take issue here with the study’s methodology . . ” (Docket No. 142 at 9).
Thus, even with the generous assumption that television and radio coverage in Washington was at the national average, the effect of the Washington newspaper coverage alone was far more substantial than elsewhere in the country.
III. THE EFFECT OF THE WASHINGTON, D.C. PUBLICITY AS OF MAY 1, 1974
The venue question poses the additional and central issue of the effect of the publicity as of the time of the change of venue motion. There are two factors that were evident in the record as presented to the District Judge on May 1, 1974.
The first factor is that the coverage of the case in Washington, D.C. alone far exceeded the coverage elsewhere in the nation. This alone called at least for inquiry into the comparison of Washington, D.C. coverage with coverage in other parts of the United States. Neither the District Court nor the Government initiated such an inquiry.
The second factor before the Judge was the result of just such an inquiry, which was set forth in the survey described in the Sindlinger Affidavit (Appendix A). The sample population was drawn from those responding that they were registered to vote, and therefore eligible to serve on a jury in their area. 93% of the Washington, D.C. population was found to know of the indictments. 73% of those people were found to have an opinion of guilt or innocence — a proportion 15% more than the corresponding national average and 23% more than in one other sampled area, closeby Richmond, Virginia. Moreover, the proportion of the total Washington, D.C. population that thought the appellants here to be in fact guilty was about 61% (84% of 73%), significantly higher than the corresponding national average of about 43%. (75% of 58%, Appendix A at 402 of 181 U.S.App.D.C., at 179 of 559 F.2d).3
*368The unrefuted evidence of singularly heavier coverage in Washington, D.C. and of substantially heavier impact of the coverage in Washington (pretrial bias) could only impel a decision by the District Court Judge to move the jury selection and trial to another location in the United States, with either the same or another judge. No other area could have been as biased as Washington, D.C., and many areas could have been substantially less biased and have left no doubt about the fairness of the trial from the standpoint of venue.
This result was especially favored because of the conclusion that fairly leaps from the survey results in the Sindlinger Affidavit: much of the entire country already thought the appellants guilty. At the very least a court would be expected to remove the trial from a locale where 61% of the populace had concluded guilt to a locale where only 43% or less had so concluded; there must have been many such locales, since the national average was 43% (Appendix A at 6). In Richmond, Virginia, only 37V2% considered that defendants were guilty. (75% of 50%, id.) This was not a situation where many had not heard of the case, or where many had no conclusion one way or the other. Here, on the face of an unrefuted and apparently accurate poll, most people in Washington, D.C., some 61%, in their own minds had already completed the trial and returned a verdict of guilty, while only some 2% of the city had formed an opinion of innocence. (Id. at 6). The appellants’ plea was not to go where most residents had not heard of the indictments or had not formed some opinion, for their evidence disclosed no such place. The plea was to go to a place where where less than one-half the potential jurors had formed an opinion that they were guilty, with the rest withholding judgment.
It was possible for the Judge to travel with this case; any conviction he may have had as to the necessity that he preside need not have been violated.
IV. THE LEGAL STANDARDS
In weighing the foregoing evidence on pretrial publicity, the District Court and this court are required to apply the law that governs the change of venue question. The law on the matter is established in four categories. First, there is the law applicable to federal cases, as set by the Supreme Court and the Circuit Courts of Appeals under their supervisory power over the District Courts, and, in the case of the Supreme Court, over the Circuit Courts of Appeals as well. Second, there is the law applicable to all courts, state or federal, under the Constitution. Within each of these two categories there is a division between two types of venue-change decisions for pretrial publicity. One is the category in which prejudice to the defendant is found to exist presumptively, because of extraordinary circumstances of coverage. The second is the category in which, although prejudice cannot be declared presumptively, the voir dire of prospective jurors discloses sufficient prejudice to warrant changed venue. This produces the four categories of analysis: (1) federal and (2) constitutional, and (3) presumptive and (4) actual.
The case law establishing these categories is clear-cut. There is a federal supervisory standard, in addition to a constitutional standard, in these eases, which would assure fair trials by an application of the rule of presumptive prejudice or through identification of actual prejudice. This is made clear in Marshall v. United States, 360 U.S. 310, 79 S.Ct. 1171, 3 L.Ed.2d 1250 (1959), and reiterated in Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), where the Court wrote, discussing Marshall:
The defendant in Marshall was convicted of dispensing certain drugs without a prescription. In the course of the trial seven of the jurors were exposed to various news accounts relating that Marshall had previously been convicted of forgery, that he and his wife had been arrested for other narcotics offenses, and that he *369had for some time practiced medicine without a license. After interviewing the jurors, however, the trial judge denied a motion for a mistrial, relying on the jurors’ assurances that they could maintain impartiality in spite of the news articles.
Noting that the jurors had been exposed to information with a high potential for prejudice, this Court reversed the conviction. It did so, however, expressly “[i]n the exercise of [its] supervisory power to formulate and apply proper standards for enforcement of the criminal law in the federal courts,’’ and not as a matter of constitutional compulsion. Id., at 313 [79 S.Ct. at 1173],
421 U.S. at 797, 95 S.Ct. at 2035 (footnote omitted) (emphasis added).
The Court in Murphy was addressing itself to the constitutional standard applicable to state trials. The Court went on to survey the scope of the constitutional standard, as opposed to the federal supervisory standard:
Petitioner relies principally upon Irvin v. Dowd, 366 U.S. 717, [81 S.Ct. 1639, 6 L.Ed.2d 751] (1961), Rideau v. Louisiana, 373 U.S. 723, [83 S.Ct. 1417, 10 L.Ed.2d 663] (1963), Estes v. Texas, 381 U.S. 532, [85 S.Ct. 1628,14 L.Ed.2d 543] (1965), and Sheppard v. Maxwell, 384 U.S. 333, [86 S.Ct. 1507, 16 L.Ed.2d 600] (1966). In each of these cases, this Court overturned a state court conviction obtained in a trial atmosphere that had been utterly corrupted by press coverage.
In Irvin v. Dowd . . . the Court readily found actual prejudice against the petitioner to a degree that rendered a fair trial impossible.
Prejudice was presumed in the circumstances under which the trials in Rideau, Estes, and Sheppard were held. . In Rideau the defendant had “confessed” under police interrogation to the murder of which he stood convicted. A 20-min-ute film of his confession was broadcast three times by a television station in the community where the crime and the trial took place. In reversing, the Court did not examine the voir dire for evidence of actual prejudice because it considered the trial under review “but a hollow formality” — the real trial had occurred when tens of thousands of people, in a community of 150,000, had seen and heard the defendant admit his guilt before the cameras.
Id. (emphasis added).
The federal supervisory standard provides broader protection against prejudice than the constitutional standard. Concurring in Murphy, supra, Mr. Chief Justice Burger wrote:
I agree with Mr. Justice BRENNAN [dissenting] that the trial judge was woefully remiss in failing to insulate prospective jurors from the bizarre media coverage of this case and in not taking steps to prevent pretrial discussion of the- case among them. Although I would not hesitate to reverse petitioner’s conviction in the exercise of our supervisory powers, were this a federal case, I agree with the Court that the circumstances of petitioner’s trial did not rise to the level of a violation of the Due Process Clause of the Fourteenth Amendment.
421 U.S. at 803-04, 95 S.Ct. at 2038 (emphasis added). And in Rideau, supra, Mr. Justice Clark wrote, dissenting:
. if this case arose in a federal court, over which we exercise supervisory powers, I would vote to reverse the judgment before us.
373 U.S. at 728, 83 S.Ct. at 1420.
Recently, an opinion by Judge Bazelon emphasized that federal appellate courts have the duty to impose supervisory standards over criminal cases, United States v. Pinkney, 179 U.S.App.D.C. 282, 551 F.2d 1241 (1976) n.50, but, for some unexplained reason, the majority does not conform to that exhortation in this case, where the supervisory standard has been promulgated by the Supreme Court.
The foregoing makes three unequivocal points. First, there is a category of presumptive prejudice to which a federal supervisory standard applies. Second, that standard assures a defendant more protection against prejudicial pretrial publicity *370than the constitutional standard. Finally, one example of the presumptive federal standard is found in Marshall, supra, under which
. persons who have learned from news sources of a defendant’s prior criminal record are presumed to be prejudiced.
Murphy v. Florida, 421 U.S. at 798, 95 S.Ct. at 2035.
V. APPLICATION OF THE STANDARDS
A. The District Court
The District Court disposed of the question of presumptive prejudice at the June 12, 1974, motions hearing. In doing so it did not distinguish between a federal and a constitutional standard, and it did not examine or attempt to apply the law of presumptive prejudice.
THE COURT: Now you are talking about change of venue, where would you suggest the case be sent to for trial? Do you know of any place in the country?
MR. BOYER [Mr. Spencer Boyer, for Mr. Ehrlichman]: Any place other than the District of Columbia, Your Honor.
THE COURT: What do you mean by anyplace other than the District of Columbia? Alexandria — across the river?
MR. BOYER: No, Your Honor.
THE COURT: Where?
MR. BOYER: What we are asking for is of course that would depend on several things. That would of course be determined by this Court. That would also depend upon the calendar of the other districts. We would be willing to assist the Court in any manner to find out any district which would be out of the immediate environs of the District of Columbia to see whether or not their calendar could accommodate a trial of this length, complexity, and scope.
THE COURT: Now let’s talk about some highly publicized cases that have been tried in the country. Let’s go back many years, probably before your time, the trial of Richard Hauptman, involving the kidnap of the Charles Lindberg baby in New Jersey. I remember the trial very well, highly publicized. Of course in those days we didn’t have radios to the efficiency we have now, or television. We had newspapers, frontpage story everyday all over the country.
Senator Kennedy was killed out in California, a highly publicized case. The Manson trial. Recently I had two murder trials here that I presided over, highly publicized for weeks — the Ammidown case, one of the most brutal murder-rape cases ever tried in the history of our court, or probably any court in the country; and the Lee case, a companion case. Now the test is going to be whether or not after voir dire examination by the Court you can obtain, you can empanel a jury say under oath not only having read or heard or listened to matters concerning the case that they could decide this case on the evidence and the law of the case. It comes down to that.
Tr. June 12, 1974 (Docket No. 180) at 431-33 (emphasis added). The final sentences reveal that the District Court intended no examination at all to determine if the amount and nature of the presumptive prejudice violated the supervisory standard applicable in federal courts. And in fact it did not indulge in any such examination.
Later in the hearing the District Judge showed again that presumptive prejudice was not a consideration:
We have 800,000 people approximately living in the District of Columbia. And if we can get a jury — and this is going to be the test in my opinion — [which] can truthfully say they have heard some parts of those hearings but have not formed an opinion from what they heard or read, or heard commentators talk about, they can truthfully say they can sit on this case even though it may be a protracted case and could render a verdict after all the evidence is in, based on the evidence and law of the case, render a verdict based solely upon the evidence and law of the case. Until we try that out how is a judge going to determine on the arguments that have been made, the Court’s knowledge of prior sensational *371cases that have been tried in the country, protracted cases there and here, we have had many of them right in this district, how are you going to know whether you can get a jury unless you tried first?
Now, if you try as I have indicated and you can’t get them, that is one thing. If we are able to empanel an unbiased jury that is another thing. How are you going to know unless you try? I would like to hear you on that.
MR. BOYER: Your Honor, as I indicated earlier, that several of the cases and several of the imperical [sic] studies, for example, the Broader Study on Voir Dire Examinations and Imperical [sic] Study, and in fact the ABA standards which I quoted earlier, recommend that the Court strongly protect the defendant before the trial, not to place too much emphasis on the whole concept of voir dire, especially where there has been the pervasive publicity as that as has been engendered by this particular case.
The problem with voir dire is that it is going to be very difficult, especially here in the District of Columbia, to determine whether the juror is consciously or subconsciously harboring prejudice against the defendants because of the widespread media.
The Court earlier asked me a series of questions as to what was the distinction between some of the more celebrated eases where there was not a change of venue and this particular case. So I may submit to the Court that the circumstances Mr. Green has indicated, that this is an unprecedented case, these are as Your Honor earlier indicated, the personal friends and aides of the President, and this has been an on-going saga of more than two years whereas in many of the cases that you referred to there were but in a moment — in the Ammidown ease and the Lee case, even though they were celebrated cases here in the District of Columbia — nowhere and by no stretch of the imagination'—
THE COURT: —how about the case I tried which took me ten months to try? The longest case ever tried in the history of this court since 1801. It got quite a lot of publicity, incidentally. It was a civil antitrust suit against all the major railroads in the country and was publicized pretty well. It was not a murder case. We got a jury in that case and the jury sat eight months.
MR. BOYER: May I submit to the Court we are dealing with apples and oranges.
THE COURT: Wait a minute. Let me ask you a question. Do you suppose everybody that listens to radio and television commentators pro and con, everybody, or the majority of the people, have made up their mind that President Nixon is wrong in this whole matter or anyone of these defendants are all wrong and that they are guilty of things? Don’t you think there are millions of people in this country now at this moment think the President has done nothing wrong and done everything according to his duties? And vice versa many other people might think otherwise. And about any of these defendants that have been highly publicized. Don’t you think there are millions of people that do not believe they done anything wrong?
MR. BOYER: Your Honor, those millions of people don't live here in the District of Columbia.
Id. at 435-37 (emphasis added). The Sindlinger Affidavit demonstrates the truth of the last observation.
The “ABA standards” referred to in the foregoing exchange are at ABA Standards Relating to Fair Trial and Free Press 119-28 (Approved Draft) (1966). The commentary therein reviews the pre-Murphy-Rideau cases and succinctly states the error of the District Judge’s approach in this case.
The judicial attitude has taken the form of great deference to the discretion of the trial judge, even when there is evident dissatisfaction with his decision, of equating the ability to impanel a jury with the absence of any need for other relief, and of insisting that the defendant establish actual prejudice on the part of virtually the entire community.
*372Id. at 121-22 (emphasis added). The ABA Standards were printed in 1966. They illuminate the issues here. The pertinent standard is:
A motion for change of venue or continuance shall be granted whenever it is determined that because of the dissemination of potentially prejudicial material, there is a reasonable likelihood that in the absence of such relief, a fair trial cannot be had. This determination may be based on such evidence as qualified public opinion surveys or opinion testimony offered by individuals, or on the court’s own evaluation of the nature, frequency, and timing of the material involved. A showing of actual prejudice shall not be required.
Id. at 119 (emphasis added). In commentary, the ABA authors wrote:
As shown by such cases as People v. Martin [19 App.Div.2d 804, 243 N.Y.S.2d 343 (1st Dep’t 1963)], Delaney v. United States [199 F.2d 107 (1st Cir. 1952)], and Rideau v. Louisiana [373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963)], there are occasions when the inherently prejudicial nature of the material, coupled with knowledge of its wide dissemination in the community, requires the granting of relief without elaborate soundings .of community sentiment. In such instances, change of venue may be particularly appropriate when it can be shown that the news coverage has been far less pervasive in some other locality within the jurisdiction.
Id. at 126 (footnotes omitted).
As to the opinion poll, the District Judge says simply, “You know polls can be wrong too. We remember the famous election when Governor Dewey ran against President Truman. ... I have great faith in the jury system.” (Docket No. 180 at 437) (emphasis added). But this statement reflects categorical rejection without consideration of the Supreme Court rule on presumptive prejudice. In light of Murphy and Marshall the law is now that presumptive prejudice is a factor that must be examined in venue decisions. The District Court therefore committed reversible error in declining even to consider the factor. If the federal standard for presumptive prejudice exists at all, it requires the trial court to recognize the possibility of presumptive prejudice. Further, on the facts of this case, the presumptive prejudice existing in the District of Columbia, which is demonstrated by Appendix A and the newspaper clippings, mandated a change of venue to a more favorable venue.
B. The Majority Opinion
The majority opinion states:
We believe, however, that it is inappropriate to attempt to formulate a supervisory power standard for concluding that a fair jury cannot be selected.
Majority opinion at 285 of 181 U.S.App. D.C., at 62 of 559 F.2d. The Supreme Court, however, has formulated a supervisory standard in venue matters. The present Chief Justice and Mr. Justice Marshall and Mr. Justice Clark have so written. 421 U.S. at 798, 804, 95 S.Ct. 2031; 373 U.S. at 728, 83 S.Ct. 1417. The majority should acknowledge that it exists and apply it.
The reasoning of the majority opinion turns on the notions that identifying and applying such a standard would be hard to do (Majority opinion at 285-286 of 181 U.S.App.D.C., at 62-63 of 559 F.2d), the trial would not be fairer (id. at 286 of 181 U.S.App.D.C., at 63 of 559 F.2d), and that, after all, it trial courts are permitted to deny changes of venue for presumptive prejudice and to go on to the voir dire, more information on prejudice would be available (id. at 286 of 181 U.S.App.D.C., at 63 of 559 F.2d).
It is true that voir dire is potentially a valuable tool for discovery of prejudice, but that observation is irrelevant to the issue of whether a supervisory or constitutional standard is to apply in weighing the information on prejudice. Also, as held in Marshall, supra, there are cases in which voir dire is pointless. Further, the trial could not help but tend to be more fair if the venue were laid where only 37*/2% of the *373people (as in Richmond) already thought the defendants guilty, instead of some 61% (as in the District of Columbia), and there is no doubt that many communities could have been found where the presumptive prejudice was substantially less.
As to the standard, the court here is simply walking away from its duty. The majority thus whisks the law away at whim.
The appellants here are criminal defendants in federal court. They have a right to be judged by federal standards — the same as all other federal defendants. Federal judges have a sworn duty to apply federal standards, as denominated by the Supreme Court, to the facts of this case. The federal judges here have not done so. No consideration whatsoever has been given to the existence of potential prejudice above the bare minimum constitutional obligation.
VI. THE LAW APPLIED TO THE MAY 1, 1974 MOTION
The task of this court is to apply the federal supervisory standard for presumptive prejudice to the facts of this case.
A. The Remedy
The first step in analysis is to clarify the precise remedy and to identify its costs. The remedy was not delay. It was not a continuance. It did not entail additional national agony in delaying the trial and its resolution. The remedy was simply for the trial to be held in practically any place other than Washington, D.C. Moreover, the District Judge was not barred from himself travelling with the case and trying it. The interests of the country in a prompt trial and supervision of a fine judge were simply not at stake. To say that they were is to completely evade the law as to change of venue. The fact is that had such change of venue been made, the issue of the fairness of the trial, on the venue point, would have been completely obliterated from the case. Why the Government and the trial court would want to hazard a criminal trial in which the evidence of guilt was as strong as it was here by insisting on trial in a. jurisdiction where presumptive prejudice existed to the extent that it did here, defies reason. Delay and the selection of the judge were not issues, and the issue of possible additional trial costs in the new venue was not raised (Docket Nos. 142,180).
The Government had absolutely nothing to lose by trying the case in a community where presumptive prejudice was at a minimum, and to say that it did have something to lose is to admit that the case should have been transferred.
A factor that compelled use of the simple venue safeguard in this case was that the United States Senate had expressly chosen to televise its hearings in spite of the Watergate Special Prosecutor’s request, out of concern for defendants’ fair trial rights, that there be no television coverage. The Senate reported:
The committee’s interest in televised hearings was not to obtain publicity for publicity’s sake. The facts which the committee produced dealt with the very integrity of the electoral process; they were facts, the committee believed, the public had a right to know. Most citizens are not able personally to attend the working sessions of their Government. Although thousands of people spent short periods in the Caucus Room during the hearings, these visitors represented only a small percentage of the electorate. Thus, it was desirable that every citizen be able to view the hearings, if not in the Caucus Room, then in his home or place of business. The ability to read about the hearings in the printed media was not sufficient. The full import of the hearings could only be achieved by observing the witnesses and hearing their testimony.
It was for this reason that the committee opposed the efforts in Federal court of Special Prosecutor Cox to proscribe television and radio coverage of the testimony of Magruder and Dean. The Special Prosecutor’s expressed concern was that public hearings might prejudice future criminal trials. It was the committee’s position that they would not, but, even if they did, it was more important in *374this period of crisis and national concern that the full facts be promptly made known. The public should not have to wait a year or more until the Watergate trials were over to know the scope of the corruption in its Government.
S.Rep. No. 93-981, 93d Cong., 2d Sess. XXXI-XXXII (1974) (emphasis added). This statement speaks for itself and indicates that the Senate hearings were unconcerned with the prejudice they might cause to future criminal trials. Given this decision, and the nationally televised and printed coverage it created, simple fairness commanded that the trial be located in some community where there lay a minimum prejudgment of guilt.
One other element of cost should be explicitly stated. It is the cost now, in 1976, of reversing the convictions for a retrial of these cases where the Government’s evidence is massive. The cost includes reopening old wounds. The cost may also include public exasperation and disillusionment. The cost certainly would include the dollar outlays for a new trial. But the existence of the federal supervisory rule requires such disposition and the only court in this land that can alter the existing rule is the Supreme Court of the United States. The law is otherwise clear, and this court is bound to apply it. Our constitutional guarantee of a fair trial includes the absolute right to an open-minded jury and, as the Supreme Court held in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960), with respect to the right to be tried only on felonies charged in an indictment by a grand jury, the denial of such right cannot be treated as harmless error.
B. The Supervisory Standard and the Publicity in this Case
We know that the proposition in Marshall, a federal case, is that 421 U.S. at 798, 95 S.Ct. at 2035. In this case, as stated supra, the defendants were the subjects of a massive wave of media coverage which is without parallel in legal history, which was extraordinarily heavy in Washington, D.C., and which, on the unrefuted record, led some 61% of Washington, D.G. area residents to conclude that the defendants were guilty, before trial, with only some 2% believing them innocent and the rest withholding judgment. On the same record, to a level of statistical near-certainty, this was not the case in such other locales as Delaware, Southern Indiana, and Richmond, Virginia.
. persons who have learned from news sources of a defendant’s prior criminal record are presumed to be prejudiced.
The Washington press commentary included substantial, unending vituperative statements, of which these were typical:
Honesty and following those orders [from Haldeman and Ehrlichman] were inconsistent.
He [Haldeman] stayed behind the scenes, using loyal aides to do the dirty work .
See p. 365 of 181 U.S.App.D.C., p. 142 of 559 F.2d, supra. The newspapers were saturated with adverse comments, political satire and cartoons, and even a comic strip attacked the defendants.4
This was not a case in which the defendants were asking to go somewhere where the jury pool would represent a clean or neutral slate: it is a case in which they sought simply to go someplace where the smallest possible portion of the jury pool had concluded in advance that they were guilty.
Additional high dollar costs, delay, and change of judge were not involved.
In determining the proper applicability of the supervisory standard declared in Marshall, that case cannot be distinguished from this case on the basis that the jurors had improperly learned of a prior conviction of the defendant, instead of some other adverse information, because Rideau, which was a constitutional case, was reversed *375where the publicity did not involve any conviction. The federal supervisory standard is broader than the constitutional standard and can be violated by the possibility of prejudice in any form. Jury prejudice is not limited to publicity of a conviction or a confession.
The disclosure in Rideau involved a confession on television before some 106,000 viewers in three separate showings in a population of some 150,000, or nearly two thirds of the populace, assuming some small allowance for overlap in the audience among the three showings. 373 U.S. at 724, 83 S.Ct. 1417. In this case the principal defendants were dismissed from high office in a wave of publicity that led nearly two thirds of the population of Washington, D.C. to believe they were guilty before trial. Moreover, eight of the twelve ultimate jurors actually viewed portions of the television hearings from which the Senate perjury counts were brought (Tr. 634, 842, 937, 1181-82,1355,1427,1680,1911). There was therefore the obvious possibility that these jurors in the case were actual witnesses to the charged crime, a frequent cause for disqualification as a juror. The adversary nature of those hearings may have created fixed impressions in the viewers and turned them into partial partisans for one side or another. They may have tended to side with Senator Ervin as many did. The percentage of nearly two thirds is the same in both Rideau and this case. In Rideau, the Supreme Court said that for' the people exposed to the publicity, the publicity was the trial. 373 U.S. at 726, 83 S.Ct. 1417. The same might be said of the Senate Hearings as presented on television. And Rideau was a state court trial and therefore, a constitutional case. If percentages are to govern there, then it is even clearer that they should govern in a federal ease, where a broader standard than the constitutional standard applies.
C. The Evidence from the Voir Dire
The majority opinion explores the voir dire that was actually held subsequent to the denial of the change of venue motion.
The voir dire confirms the conclusion from the evidence that the venue should have been changed at the beginning of the case, on the basis of presumptive prejudice.
The voir dire began with preliminary questions directed to groups of members of the venire, in order to explore such matters as reading the indictment, determining if any person on the venire knew participants in the trial or if they might tend to disbelieve a witness because the witness had pleaded guilty in another case, and to inquire into scheduling or medical difficulties that would prevent those on the venire from serving. Tr. 1-541.
The court then asked a standard set of questions of members individually. This individual questioning produced the panel of twelve that was ultimately charged with the case. Because of the importance of the context and sequence of this individual questioning, and as a typical example for ease of reference, the individual voir dire of one of the twelve jurors, John Hoffar (Tr. 928-49), is set out as Appendix B to this opinion. (Hereafter Hoffar Voir Dire. The other eleven jurors were Gladys Carter (Tr. 607-19), Roy Carter (Tr. 619-34), Ruth Gould (Tr. 832-51), Anita King (Tr. 1075-97), Marjorie M. Milbourn (Tr. 1172-1216), Vanetta M. Metoyer (Tr. 1216-29), Dock Reid (Tr. 1350-61), Jane M. Ryon (Tr. 1420-42), Thelma L. Wells (Tr. 1673-96), Sandra Y. Young (Tr. 1876-1901), and Helen D. Pratt (Tr. 1901-17).
1. The Role of Voir Dire and the Pacts of Rideau
The first and singular aspect of the voir dire is that it confirms the pervasiveness of the coverage of this case in Washington, D.C. The trial judge says flatly:
Think of it. The publicity that break-in got. I said, this is incredible.
Tr. 487 (emphasis added). And:
If anybody gets on the stand and tells me they never heard of this case or read about it, I will exercise a challenge for cause. That is how I feel about it.
Id. (emphasis added).
The heart of the problem thus created is encapsulated by the authors of the ABA *376Standards Relating to Fair Trial and Free Press:
It has in many jurisdictions been common practice for denial of such a [change of venue] motion to be sustained if a jury meeting prevailing standards could be obtained. There are . . . difficulties with the approach . . . many existing standards of acceptability tolerate considerable knowledge of the case and even an opinion on the merits on the part of the prospective juror. And even under a more restrictive standard, there will remain the problem of obtaining accurate answers on voir dire — is the juror consciously or subconsciously harboring prejudice against the accused resulting from widespread news coverage in the community? Thus if change of venue and continuance are to be of value, they should not turn on the results of the voir dire; rather they should constitute independent remedies designed to assure fair trial when news coverage has raised substantial doubts about the effectiveness of the voir dire standing alone.
ABA Standards, supra p. 21, at 126 (emphasis added).
The indisputable fact in the majority’s own analysis of the voir dire is that the exposure of the venire and final jurors to prejudicial pretrial publicity in this case was at least as heavy as the exposure of the venire and final jury in Rideau. We already know, from the unrefuted record, that not only had well over two thirds (93%) of the entire Washington, D.C. population been exposed to the publicity, as in Rideau, but nearly two thirds thought the defendants guilty. The majority writes:
Appellants claim that 52% of the veniremen questioned individually had an inclination, “ranging in intensity from mere suspicion to absolute certainty,” toward a belief in guilt. Mitchell br. at 96. The Government maintains that only 8% of those questioned indicated an opinion of guilt that could not be set aside. In all, the Government identifies 29% of the venire as having had an opinion of appellants’ guilt and another 7% as possessing an “arguable predisposition against defendants.” Govt. br. at 243.
Majority opinion at 293 of 181 U.S.App.D.C., at 70 of 559 F.2d n.56. But this is exactly the argument which was rejected by the majority in Rideau. As Mr. Justice Clark wrote there, dissenting from the majority’s finding of presumptive prejudice:
The most crucial evidence relates to the composition of the 12-man jury. Of the 12 members of the panel only three had seen the televised interview which had been shown almost two months before the trial. The petitioner does not assert, and the record does not show, that these three testified to holding opinions of petitioner’s guilt. They did testify, however, that they
“could lay aside any opinion, give the defendant the presumption of innocence as provided by law, base their decision solely upon the evidence, and apply the law as given by the court. As the judge stated in his per curiam: ‘They testified they could do so notwithstanding anything they may have heard, seen or read of the case.’ ” State v. Rideau, 242 La. 431, 462, 137 So.2d 283, 295.
* * * * * *
The determination of impartiality, in which demeanor plays such an important part, is particularly within the province of the trial judge. And when the jurors testify that they can discount the influence of external factors and meet the standard imposed by the Fourteenth Amendment, that assurance is not lightly to be discarded.
373 U.S. at 732, 733, 83 S.Ct. at 1422. Nevertheless, the majority of the Supreme Court in Rideau found presumptive prejudice in that constitutional case and thereby held that the trial court should have granted a change of venue before the voir dire was ever reached. In this supervisory case, with its broader standard, and with the virtually costless remedy of a simple and prompt change of venue upon defendants’ motion, the result is a fortiori the same. The case law leaves no other exit. To ar*377gue otherwise is to play shell games with the eases and to avoid the duty of the court.
2. The Futility of Voir Dire in this Case
The purpose of voir dire is to enable court and counsel to engage in a rational analysis of a potential juror’s attitudes regarding a ease. Conclusory and ultimate questions of the nature of “Are you unfairly biased in this case?” are next to useless in such an inquiry.
In the voir dire the trial court restricted its inquiry to what the candidate remembered in particular from the pretrial publicity:
THE COURT: Look, listen, all of you know I have been in this case — not this particular case, the so-called Watergate affair, since 1972, I think.
I heard and listened, I have known Mr. Mardian, Mr. Mitchell, favorably, Mr. Parkinson. I listened to some of the testimony and if you asked me under oath what did Mr. Mitchell say on a certain date, what did Senator Irvin [sic] say on a certain subject to him, I couldn’t conscientiously tell you under oath.
And I think that is the reaction of the average person. People soon forget. The old saying there is nothing staler than yesterday’s news.
Unless something particular comes out which stands out in a person’s mind, and I remember the incident of my good friend John Wilson about the Jap situation, that I remember. I will never forget that.
MR. WILSON: I wish you hadn’t mentioned that.
MR. FRATES: Again, for the record, Your Honor, we want to challenge that juror and all remaining jurors for cause on those grounds set out in our motion on the massive pretrial publicity. And may we have that as a standing objection to each one?
THE COURT: Yes.
Tr. 509-10 (emphasis added). As put to Juror Hoffar, the court’s question was:
Does anything you may have heard or discussed about this matter particularly stand out in your mind? Any one thing or several things?
Hoffar Voir Dire at 932 (emphasis added), Appendix B infra at 404 of 181 U.S.App. D.C., at 181 of 559 F.2d. As for the other jurors, to the same effect, see Tr. 610, 623, 836, 838, 1079, 1176, 1219, 1352, 1423, 1428, 1678, 1882, 1907.
In thus restricting its inquiry to particular instances, the trial court was helpless in the face of the permanent psychological impact that the whole of the absolutely unprecedented publicity in this case had in the Washington, D.C. area. Given the gigantic scale of the case, the years of publicity, and the inevitable blurring of the avalanche of detail, the restriction of inquiry to particular instances, although earnest and well-meant, was useless. What the court did not recognize was that people forget particulars but do form lasting general opinions and impressions.
Rudolf Flesch, author of Why Johnny Can’t Read, explains the futility of the trial court’s approach in The Art of Clear Thinking (Collier-MacMillan) 165-66 (1969):
During World War II, a team of psychologists studied the propaganda effect of orientation films. Among other things, they tried to find out whether films changed the opinions and attitudes of soldiers who saw them, and whether and how these changes lasted. They had a hunch that the effect of the films would gradually wear off and that after some time, soldiers would forget the factual details and revert to their original opinion.
This idea may seem rather obvious to you. It seemed obvious to the psychologists too — but, being scientists, they decided to test it anyway. So they gave the soldiers a test after one week and another test after nine weeks.
As expected, the soldiers had forgotten most of the facts in the film during those eight weeks. But, “clearly contrary to the initial expectation,” the general propaganda effect of the film — the opinion change —had considerably increased [emphasis in original] between the first and the second test. There was not the *378slightest doubt about it: the soldiers had forgotten the details of the film but its message had sunk in deeper.
The research team cheerfully accepted this unexpected fact and immediately proceeded to account for it by a hypothesis. They found that it could be explained through a theory by the British psychologist, Bartlett, published in 1932. Bartlett had written that “after learning, that which is recalled tends to be modified with lapse of time in the direction of omission of all but general content and introduction of new material in line with the individual’s attitudes.” In other words, as time passes, we’re apt to forget details but reinforce [“reinforce” emphasized in original] what we remember of the general idea.
(Emphasis added). Thus, the circumstance that prospective jurors stated they could not recall particulars did not negate the strong possibility that they had formed and retained some general opinions about what they had seen and heard.
Given the record of the unequalled blanket press coverage and the Sindlinger Survey results, Judge Sirica’s vow to challenge any person disavowing knowledge of this case, and the jurors’ uniform affirmation of familiarity with the case (Tr. 610, 623, 836, 932,1079, 1176, 1219, 1352,1423, 1677,1881, 1907), there is no question that “learning” in the psychological sense had taken place. General and ingrained attitudes were all that remained. Not one of the jurors had any “particular” recollections, save for Jur- or Gould’s single recollection that the “tape part” was important (Tr. 610, 623, 836-51, 932, 1080, 1176, 1220, 1352, 1423,1678, 1882, 1907). In fact, in juror Milbourn’s case the exchange was:
THE COURT: Does anything that you may have heard or discussed about this matter particularly stand out in your mind that you can recall or do many things stand out?
JUROR MILBOURN: There is so much that I wouldn’t know.
THE COURT: You couldn’t recall one particular thing, is that correct?
JUROR MILBOURN: No.
Id. at 1176 (emphasis added). This demonstrates the fallacy of the court inquiring about particulars and refusing to ask what opinions were held.
And in Juror Ryon’s case:
THE COURT: Now, does anything you may have heard or discussed about this matter particularly stand out in your mind?
JUROR: (No response.)
THE COURT: Is there anything that stands out?
JUROR: I am sorry to say that I don’t really, you know, remember everything I heard.
Id. at 1423 (emphasis added). In none of the cases, not in Juror Gould’s, Milbourn’s, Ryon’s, or in any other juror’s case, was the response to the question of “particular” recollection followed up to learn what, if any, opinion they did hold, notwithstanding the defendants’ standing objection that some such effort be made. Without the data from such inquiry, defendants could not test the juror’s conclusory statement that he could try the case fairly.
Worse, the failure to inquire into what opinions the prospective jurors did hold gave free rein to the tendency of the jurors toward “omission of all” evidence,5 except evidence conforming to the original (prejudicial pretrial) publicity.
This case is unique — every one of the actual jurors had been exposed to the pretrial publicity; most had witnessed the Senate hearings on television, but over time, of course the “particular” details faded in their minds. This being so, when the court limited its questioning to whether anything particular stood out, it deprived defendants of those tools for finding possible prejudice in the jury that would have been provided by a more penetrating voir dire. But this is only to say that this case is one involving presumptive prejudice, a category already defined by the law, and for which a simple and virtually costless remedy, timely re*379quested by defendants, was available to the trial court: change of venue.
3. Coaching By the Trial Court
Judicial notice may be accorded the fact that, once there has been a screening for those who cannot serve due to medical reasons or personal schedule, many persons on the venire wanted to be picked to serve. The desire is a natural and understandable one. The regular compilations of comments of jurors accumulated by the District Court in this circuit attest to this fact.
For this reason, however, and generally, the trial court should steer clear of giving the prospective juror leading suggestions of suitable answers to be given to accomplish that objective. The obvious first danger to avoid is to not tell a prospective juror the legal standard by which impartiality will be judged before the question itself is asked. The Hoffar Voir Dire is typical and instructive.
The trial court begins by reminding the juror, before the parties and counsel, that his or her selection is at issue:
This is ... to determine whether or not you have the qualifications to be selected to be on this jury .
Hoffar Voir Dire at 928-29, Appendix B infra at 402 of 181 U.S.App.D.C., at 179 of 559 F.2d. Then, the first question on bias is asked in a phrase that warns the juror that, of course, the juror has not yet heard the evidence:
Do you believe at this very moment, and without having heard any of the evidence . . . that any Defendant in this case is guilty . . .?
Id. at 930, Appendix B infra at 403 of 181 U.S.App.D.C., at 180 of 559 F.2d (emphasis added). That is a loaded question. The natural inclination, unless a very strong opinion of guilt is held, would be to deny that one believed a person to be guilty, without having heard any of the evidence. The simple inquiry should be, “Do you presently have an opinion as to the guilt of any defendant in this case?” The trial court goes on to say,
Now . . . I am going to question you as to what you heard or read about the case to decide if you can be qualified to serve .
Id. at 931, Appendix B infra at 403 of 181 U.S.App.D.C., at 180 of 559 F.2d. And,
. we would like to get a jury where each juror is able to put aside anything he or she may have read or heard and any opinion . . and decide . . . solely on the evidence and . . . instructions
Now, I want to be sure, and counsel on both sides want to be sure, that you can decide this case for yourself based solely from what you hear in this courtroom at the proper time.
Id. (emphasis added). And,
Now the Government and the Defendants in this case are entitled to have this case decided on its merits, that is, on the evidence presented in open Court and pursuant to the law as the Court will try to explain it to the jury at the end of the case. You must not be influenced, of course, by any events that transpire outside of the courtroom.
Id. at 938, Appendix B infra at 406 of 181 U.S.App.D.C., at 183 of 559 F.2d (emphasis added). Thus, the prospective juror was told how to answer the court’s questions if he wanted to serve.
Later, of course, followed the Court’s question:
THE COURT: Does any reason whatsoever suggest itself to you at this time why if you are selected to serve on this jury you feel you could not listen to the evidence objectively and the testimony and at the proper time render or vote for a verdict or join in a verdict which will be based in your opinion solely upon the evidence that will be offered in open Court and the instructions on the legal principles involved of the law, in other words, applicable to the case?
JUROR HOFFAR: No, sir.
THE COURT: No reason whatsoever?
JUROR HOFFAR: None that I can think of offhand.
*380Id. at 940, Appendix B infra at 406-407 of 181 U.S.App.D.C., at 183-184 of 559 F.2d (emphasis added). The answer was plainly that earlier suggested.
The defendants had objected to this technique:
MR. STRICKLER: I have one observation which I would like to make.
We are asking the jurors factual questions to elicit facts. I believe Your Hon- or has approached this by way of telling them that the law is in advance which, in effect, can suggest an answer to these jurors and on the subsequent groups that come in I would like to request the Court not to give them the law which may suggest an answer, but just go after the facts.
THE COURT: I will just have to use my own judgment and do what I think at the time is right.
I will keep your request in mind.
Tr. 537.
But the objectionable practice continued. Advertently or not, these preambles to key questions could only add to the possibility of biased, unrevealing, and conclusory responses. The voir dire was thus improper and unrevealing of critical attitudes. Certainly, with 93% of the venire having prior knowledge of the case (Appendix A at 401 of 181 U.S.App.D.C., at 178 of 559 F.2d), at some point the prospective jurors should have been asked: “What opinion did you reach?” They must have arrived at some opinion, and the parties were entitled to know what that opinion was.
4. The Trial Court’s Standard of Juror Neutrality
The standard of neutrality used in this case was stated by the trial court:
Does any reason whatsoever suggest itself to you at this time why if you are selected to serve on this jury you feel you could not listen to the evidence objectively and the testimony and at the proper time render or vote for a verdict or join in a verdict which will be based in your opinion solely upon the evidence that will be offered in open Court and the instructions on the legal principles involved of the law, in other words, applicable to the case?
Hoffar Voir Dire at 940, Appendix B infra at 406 of 181 U.S.App.D.C., at 183 of 559 F.2d. But this misses the complete test of neutrality by a significant omission. Particularly in notorious cases, saturated with publicity, the accurate test includes the prerequisite that the prospective juror at the outset of the case have no opinion as to guilt “which would require evidence to remove.” Beck v. Washington, 369 U.S. 541, 557, 82 S.Ct. 955, 964, 8 L.Ed.2d 98 (1962) (emphasis added).
In the June 12, 1974 hearing on the change of venue motion, the trial court pointed out how the voir dire was used in other highly publicized trials in which he participated. Supra, pp. 370, 371 of 181 U.S.App.D.C., pp. 147, 148 of 559 F.2d. Reference to still other notorious cases is instructive as to the use of an accurate and scrupulous test of neutrality. Perhaps no better example lies in our legal history than the trials resulting from the Teapot Dome Scandal.
Prior to the Watergate affair, the investigations and trials of the principals in the Teapot Dome Oil Scandal generally held the modern day American record for sustained interest and publicity. Of course, today, with television, wider radio reception, and the entire news media vying with each other in what has come to be called investigative journalism, the publicity resulting from the Watergate break-in, the trial of the participants, the Senate (Ervin) Investigating Committee, the House impeachment hearings, the resignation of the President, the issuance of a presidential pardon, and the subsequent indictment and trial of appellants has far exceeded that of Teapot Dome.
The present case, involving as it does high federal officials in a criminal trial with substantial political overtones and a tremendous amount of pretrial publicity are in those respects similar to the Teapot Dome trial of Albert B. Fall, Secretary of the Interior in the Harding administration (Fall *381v. United States, 60 App.D.C. 124, 49 F.2d 506, cert, denied, 283 U.S. 867, 51 S.Ct. 657, 75 L.Ed. 1471 (1931)). Because of these similarities it is relevant to consider the procedures followed in selecting the Fall (Teapot Dome) jury.
Secretary Fall was tried on a charge of bribery for allegedly receiving $100,000 from Edward L. Doheny to influence his decision in awarding the construction contract for certain oil storage tanks in Hawaii and for the delivery of “royalty oil” from Naval oil reserves to the corporation of which Mr. Doheny was president.6 The publicity this case received was extensive and extended over many years. Consequently, when the trial of Secretary Fall on the bribery charge began on October 7, 1929, a great many of the jurors indicated that they had previously read about the charges in the newspapers and had heard it on the radio and in general conversation. The influence of this pretrial publicity on the panel drawn for jury service was thus an issue when the jury was selected. Consequently, they were all interrogated as to the effect of such prior knowledge and publicity. A number of the veniremen indicated that they had formed an opinion, and it is important and relevant to note the standard that the trial court applied in determining whether the prospective jurors were to be considered sufficiently impartial to try the case.
Without exception, the standard applied was whether the prospective juror had an opinion at the time he was examined that would take any evidence to set aside. If his mind was in that state he was excused by the court without any further argument.
The following references to the voir dire in that trial indicate the standards and interrogation procedures that were applied by the court, the defense, and the prosecutor in seeking an impartial jury. The first juror to indicate that he had an opinion was asked, “When you came into court today you did not have an open mind?” His reply was that it would take evidence to remove the opinion that he already had. He was thus, without more, challenged and excused (Tr. 12-13).7
The next juror that indicated he had formed any prior opinion was asked whether he would “require evidence to remove that opinion” (Tr. 17), and when he indicated that he would he was excused. One juror who admitted to a “slight opinion” only, but who on further inquiry indicated that he would want “evidence to reverse” that slight opinion, was challenged and excused notwithstanding his assertion that he could lay aside that slight opinion. In contesting the challenge of this juror by the defense, one of the prosecutors, Mr. Roberts (later Justice Roberts), stated the standard he thought should be applied when he addressed a question to the juror, inquiring whether that juror could utterly lay aside any opinion formed tentatively at the start, listen to the case from start to finish, and form an opinion from the evidence and that only. The juror replied “I think so” (Tr. 47-48), but he was nevertheless stricken and excused by the court on the challenge of the defense because he had previously indicated it would take some “evidence to reverse” his opinion. Another juror who stated that he had heard about the case was asked whether he would go “into the jury box . . . with a clear mind” (Tr. 59). This is an entirely different standard from that used here of inquiring whether the venireman had a “fixed opinion” that would prevent him from following the court’s instructions “at the end of the case.”8
*382Another venireman indicated that from reading newspapers, he had formed an opinion “in a way” (Tr. 75-76), which he could not lay aside notwithstanding the fact that this was only a slight opinion. He was interrogated about it, and when he indicated that he could not “keep it out of the case,” he was excused (id.). Had he been asked whether he could follow the court’s instructions at the end of the case he might have answered yes, and by the standard here applied he would not have been considered disqualified.9
Another venireman, who was excused, stated that he read quite a bit and formed an opinion, and he was asked whether he would be “starting afresh.” He replied “I would be going in with a little load on my shoulder.” When this situation developed, Mr. Roberts inquired “without the Government having opened its mouth or offered any evidence, you would be inclined to think that you would want to hear what the defense would have to say.” “Yes.” Excused (Tr. 100).
Another venireman admitted that he had read newspapers five years previously and that he would have formed an opinion at that time, but he stated: “Don’t know that I formed an unalterable opinion.” He was then asked if he “would want some evidence before [his opinion] could be changed.” His affirmative answer resulted in his discharge from the jury (Tr. 112).
It is clear from this history of the Teapot Dome trial that the court applied the standard that, regardless of the strength of the opinion held by the venireman, if it would take any evidence to set aside that opinion, the venireman did not possess the requisite open mind at the start of the trial that was required of a juror in a criminal case and was not qualified to sit on the jury.
Because of the Supreme Court’s several citations of the specific question as to whether it would take evidence to set aside a juror’s opinion, the importance of that question in this case is evident. As noted, the allusion in Beck, supra, was to an opinion “which would require evidence to remove.” In Irvin v. Dowd, supra, the Court wrote:
Two-thirds of the jurors had an opinion that petitioner was guilty and were familiar with material facts and circumstances involved, including the fact that other murders were attributed to him, some going so far as to say that it would take evidence to overcome their belief.
366 U.S. at 728, 81 S.Ct. at 1645 (emphasis added). It thus appears that the voir dire there inquired according to the proper standard. The foregoing passage from Irvin v. Dowd is specifically noted in Murphy, supra, 421 U.S. at 798, 95 S.Ct. 2031.
However, unlike the interrogation of the venire in the Teapot Dome case, the voir dire here generally tended to be confined to questions that sought in a black or white way to determine whether the person being questioned had a definite opinion as to guilt or innocence rather than attempting to ferret out what in-between views and leanings he did have based on all he had seen and heard. The broader inquiry, however, was necessary in order to permit counsel to form the judgments necessary for an intelligent exercise of their challenges to the venire. But the court relied on bare statements by the juror that he did not “have any prejudice, bias, sympathy or fixed opinion” and that he could “render a fair and impartial verdict . . ..” (emphasis added). (Hoffar Voir Dire 939, Appendix B infra at 406 of 181 U.S.App.D.C., at 183 of 559 F.2d). The defense objected to this:
MR. WILSON: May it please the Court, it is very obvious to me this juror has not been forthright with you.
THE COURT: If it is obvious to you, it is not obvious to me, Mr. Wilson.
MR. WILSON: I am the one to be concerned about it.
THE COURT: I am just as concerned as you are that these men get a fair trial in my courtroom, I want you to understand that.
*383MR. WILSON: I understand that, but it helps us a lot if you will find out what he — he equivocated with you as to whether he heard it discussed and if it was discussed, he at one time said, sure, they are guilty and some other time somebody advocated to the contrary and said they weren’t guilty. This man stopped short of the crucial answers. If he has not an opinion, he has got a view. It is just as clear to me as it is possible to be.
THE COURT: Obviously, he is not one of these so-called intellectuals but I think he is a man that has good common sense and that to me is important.
Let’s proceed.
Id. at 946-47, Appendix B infra at 409 of 181 U.S.App.D.C., at 186 of 559 F.2d (emphasis added). Hoffar was then called back for additional questioning, but again the interrogation related to opinions on “guilt or innocence.” When the one question was asked whether he had an “open mind” and the reply was, “As far as forming a definite opinion, I have an open mind” id. at 945, Appendix B infra at 408 of 181 U.S.App.D.C., at 185 of 559 F.2d (emphasis added), no attempt was made to determine from this equivocal answer how far his mind was short of a definite opinion or whether he held any opinions that might take evidence to erase.
The relevance of the court’s disposition on the basis of whether one is an “intellectual” or has “common sense” is not apparent. The issue was the scope of the questioning.
The trial court’s questioning in most instances simply did not probe sufficiently to permit counsel to have a fair opportunity to obtain a jury that was assuredly qualified under the proper standard. Given the trial court’s rejection of the change of venue motion and its own protestation that it would rely heavily and exclusively on the voir dire, supra, p. 370 of 181 U.S.App.D.C., p. 147 of 559 F.2d, the standards of the Teapot Dome court were the least that defendants were entitled to under the law.
5. The Real Possibility of Political Prejudice
Political bias can also be a basis for prejudice, and so can itself be a basis for changed venue. This is made clear in United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff’d, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed.1137 (1951), a ease in which Dennis was charged with conspiring to organize the Communist Party of the United States to overthrow the government of the United States by force and violence,-in violation of Section 3 of the Smith Act, 18 U.S.C. § 2385. In rejecting appellant’s claim that it was impossible to seat an impartial jury, the court wrote:
It was not as though the prejudice had been local, so that it could be cured by-removal to another district; .
183 F.2d at 226 (emphasis added).
The public record is that Washington, D. C. is unique in its overwhelming concentration of supporters of the Democratic Party, as opposed to the Republican Party to which the defendants here belonged. The Statistical Abstract of the United States (1973) indicates that the candidate of the Democratic Party for President in 1968 received 81.8% of the total vote cast in the District of Columbia and in 1972 received 78.1% of that vote. The closest state to the District of Columbia in the 1968 election was Massachusetts with 63% of the vote cast for the Democratic Party candidate for President and in 1972 with 54.2% of the vote cast for President. Id. at 367. Thus in 1972 the vote for President indicates that the voters of the District of Columbia favored the candidate of the Democratic Party by 44% more than the voters in the next most Democratic presidential voting area in the union. In 1972 the voter turnout in the District of Columbia was 31.5%, but a sample of that magnitude of the population is certainly indicative, and four of the sitting jurors had participated in or contributed to campaigns (Tr. 634, 834, 1174, 1674). The trial court here denied defendants’ request to know to which party contributions were made (Tr. 568), whereas Teapot Dome jurors were interrogated as to “whether politics or political parties” would affect their *384decision.10 A pro-Democratic bias could imply presence of some anti-Republican bias and vice versa. Such potential prejudice should certainly have been explored. This is particularly so because according to the Sindlinger Affidavit, 11% of those polled in the District of Columbia stated that their “opinions with regard to the guilt or innocence of the defendants” was “most influenced” by their “own political position.” This 11% figure for the District of Columbia was nearly twice the 6% figure for the United States as a whole and nearly three times the figure for Richmond (4%), Indianapolis (4%), and Delaware (3%) (Appendix A at 402 of 181 U.S.App.D.C., at 179 of 559 F.2d).
This case differs from Dennis in that in Washington, D. C., there most emphatically does appear to be a unique island of political bias, and in this case, with its massive political aspects, it would be futile to ignore the possibility that prior to the trial potential jurors may have formed prejudgments of the case based on their political affiliation or leanings. The obvious possibility of an extraordinarily high concentration of bias against the Republican Party defendants, in light of the simple and virtually costless venue remedy available to the trial court, buttressed the facts which required changed venue.
CONCLUSION
It is submitted that there is no principled basis upon which the presumptive prejudice in this case can be distinguished from that in Rideau and Marshall. The law is that the defendants should have been granted a change of venue on the basis of their May 1, 1974 motion. The law, as it has always previously been applied by this court, is also that this case must be reversed and a new trial granted because of that error.
THE CONVICTIONS ON COUNT 2
I. MISUSE OF THE CIA
The remainder of this opinion must deal with a mystery. All my colleagues normally are very quick to notice plain error, particularly in courts’ instructions. So, one must wonder why they insist here upon affirming a conviction on just one count that involves obvious plain error in the court’s instructions: the error being that the trial court instructed the jury they could return a guilty verdict on the offense charged in Count 2 solely on the ground the defendants committed an offense not charged in Count 2 of the indictment returned by the Grand Jury.
It is relatively unimportant to the appellants whether the convictions on Count 2 are upheld because the sentences are concurrent and the conviction on Count 1 involves a consummated conspiracy to obstruct justice and to defraud the government agencies. Thus, for this court to act appropriately on the error would not involve any lesser sentence or in any way lessen the nature of the convictions. But it is of the gravest moment what my colleagues do to the law because that will be applied to future cases. We should not confound the law on indictments in this circuit. We are not writing law just for this case alone. Our error will come back to plague us in future cases and the public will eventually suffer.
II. THE HUSH MONEY COUNT
Count 2 of the indictment is the so-called “hush money” count.11 It charges that the *385named defendants obstructed the due process administration of justice in order to conceal the identities of persons who were involved in the so-called Watergate break-in offenses being investigated by the Grand Jury. The basic offense charged in the indictment is that the offense was committed:
. by making cash payments and offers of other benefits to and for the benefit of the [Watergate break-in] defendants . . . and to others .
for the purpose of concealing and causing to be concealed the identities of the persons who were responsible for, participated in, and had knowledge of the activities which were the subject of the [grand jury] investigation and trial, and by other means.12
(Emphasis added). In the indictment this alleged offense followed Count 1, the conspiracy count.
On its face, Count 2 does not specifically allege that the defendants misused the CIA in any way in their obstruction of justice. Basically it charges an attempt to obstruct justice by concealing the identity of those responsible for initiating the Watergate break-in through (1) payments of “hush money” and (2) offers of moderate sentences or eventual pardons, (3) “and by other means.” During the trial substantial testimony was admitted on the conspiracy count that might fairly be characterized as indicating that the defendants did misuse that agency in an attempt to defraud the government. This evidence was admissible to prove the allegations of Count 1 that such acts constituted one of the means used by the appellants in their conspiracy to defraud the United States.13
III. THE INSTRUCTION
At the close of trial, however, notwithstanding the absence of any reference in Count 2 to the use of any government agency in causing the unlawful obstruction of justice, the court instructed the jury as follows:
Similarly, if you find beyond a reasonable doubt that a Defendant knowingly and wilfully approved or participated in some other corrupt activity, such as making offers of leniency, clemency or other benefits, making false statements to the FBI, making false statements under oath to the Grand Jury, misusing the FBI or CIA, or other such activity, you may find *386that Defendant guilty on Count Two if you also find beyond a reasonable doubt that his purpose was to influence, obstruct or impede the due administration of justice.
Tr. 12,383 (emphasis added). The jurors were thereby instructed that any evidence of the misuse of the CIA that was admissible to prove the conspiracy alleged in Count 1 could do double duty and also serve as the sole basis for their returning a guilty verdict on Count 2. Appellants point out the obvious error in such instruction, i. e., that the Grand Jury had not included defrauding an agency of the United States in the “hush money” obstruction of justice charged in Count 2 and that it was thus reversible error to charge that “misuse of the CIA” alone could constitute the offense charged in Count 2.
IV.THE GOVERNMENT’S CONTENTION
On this point the Government contends that such evidence was admissible because the indictment charged that the offense was also committed “by other means,” and that the defendants were not surprised by this evidence.14 It is obvious, however, that the judge’s instruction improperly did allow the jury to convict under Count 2 on a charge that was not contained in the indictment. Normally my colleagues would reverse the conviction on this single count and affirm the judgment on the remaining counts. To say that the defendants were not surprised by the evidence is to answer a claim not raised. No party claims surprise by the evidence. It was clearly admissible as part of the proof of Count 1 — but it was not relevant to any offense charged in Count 2. If surprise is necessary, all parties were clearly surprised by the instruction that the jury could misuse evidence of an offense that was not charged to return a guilty verdict on another offense.
V.APPELLANTS’ CONTENTIONS
In response to the Government’s contention that sole reliance on such “misuse of the CIA” evidence was permissible, appellants contend it was plain error because the allegations of “other means” in Count 2 of the indictment did not refer to or include any charge beyond the payment of “hush money” or offering other benefits and does not permit the use of evidence to support the charge that is not similar to the “other means” charged in the indictment. As appellants frame the point, obstructing justice by “misusing the CIA ... is not in pari materia with the allegations that [defendants] . . . made cash payments and offers of other benefits to the [Watergate break-in] defendants. . . . ” Haldeman Brief at 116.
VI.EJUSDEM GENERIS
The term in pari materia is generally used to refer to statutes on the same subject matter.15 Appellants’ point in this respect more precisely relies upon the interpretative rule of ejusdem generis which is applicable when, as here, the general language of “other means” follows the enumeration of the specific categories of (1) cash payments and (2) offers of other benefits.16 Under such circumstances, there being no contrary reference, the law holds that the ordinary meaning thereby intended *387is that the general words refer to other acts of the same nature, class or kind as those previously stated.17 As the majority opinion recognizes, the “by other means” phrase “refers back” to acquire its meaning. Majority opinion at 350 of 181 U.S.App.D.C., at 127 of 559 F.2d.
Otherwise stated the interpretative rule of ejusdem generis applies. Under this rule, the “other means” alleged in the closing phrase of Count 2 is to be given its normal meaning referring to other “means” of the same general class as those previously alleged, i.e., to payments of money and offers of other benefits. But the majority attempts to avoid the rule and the natural implication and intention indicated by the phrase “by other means,” by arguing that “if it [the phrase] is so construed it adds little if anything to the second means named, i.e., offers of other benefits.” Id. That is precisely what it should do — add little — particularly in an indictment where some factual specificity is required. It should not open up a door bigger than the barn, but that is what the majority contends. Nor is it superfluous. It should be remembered that the concluding phrase is not restricted to the “offers” but also applies to “making cash payments.” Giving the phrase “other means” its normal meaning of limiting it to acts that are similar to making cash payments and offers of other benefits would permit the introduction of evidence of consummated benefits which were not just offered, to cite only one possibly material application of the phrase. In like vein, it would be permissible to introduce the equivalent of cash payments made by checks, credit cards, etc.
While ejusdem generis is not applied where a different intention is indicated, it is particularly applicable in interpreting this indictment because no contrary intent is indicated. To say that the phrase “by other means” was intended to embrace undefined extraneous matter would be to suddenly depart from the particular to the general— from the particular subject of specified benefits into a general field of wide and indefinite scope so that any evidence of obstruction of the investigation by the Grand Jury or FBI would be admissible. Sound criminal pleading does not permit such free wheeling with the factual allegations of an indictment. Heretofore, the established law required indictments to be more informative than that.18
The “by other means” allegation must thus be interpreted to authorize only proof of other criminal acts which were similar to *388or of the same general character as obstructing justice “by making cash payments, and offers of other benefits.”
VII. THE COURT’S INSTRUCTION
Therefore, the court’s instruction, which informed the jury that they could return a guilty verdict if they found any “misuse of the CIA” constituted an impermissible amendment of the indictment. This amounts to reversible error because it permitted the jury to find guilt on Count 2 solely on the evidence of the unalleged misuse of the CIA to curtail the FBI investiga*389tion, which succeeded in delaying that investigation from June 23 to July 6, 1972.19 This latter category of evidence was emphasized more than the unsuccessful attempt to obtain covert funds and was the first principal point argued by the prosecutor in his summation to the jury.20 Thereafter, the court instructed the jury that they could find the defendants guilty on Count 2 of obstructing justice if, solely apart from any other evidence, they found that they were “misusing the FBI or CIA. ”
This charge to the jury definitely instructed that any misuse of either would be a sufficient basis for a guilty verdict. As stated above, this was error. The factual allegations of Count 2 cannot be construed as giving appellants any notice of the wholly unspecified charge upon which the court instructed the jury they could find appellants guilty on that count. For us to hold otherwise would have the effect of changing Count 2 from one based on claims of “hush money” and other offers of clemency (hush offers), to one based on obstruction by defrauding a government agency. If the Grand Jury had intended that appellants should be prosecuted on the latter theory it would have been specifically included “defrauding an Agency of the United States” in the count along with the hush money and clemency allegations.
In United States v. Alston, 179 U.S.App.D.C. 129, 551 F.2d 315 (1976), Judge Bazelon, in reversing for a defect in a court’s instructions, raised sua sponte on appeal, said:
It may be argued that we should overlook minor variations from standard instructions because jurors do not pay much attention to instructions anyway. Counsel’s failure to object, the argument runs, further supports this view.
It would be to abdicate our responsibility to ensure the fair administration of criminal justice to conjecture that jurors *390do not heed instructions, or to find error nonprejudicial solely because of counsel’s silence. An instruction central to the determination of guilt or innocence may be fatally tainted by even a minor variation which tends to create ambiguity.21
VIII. THE RULE IN STIRONE V. UNITED STATES
Normally, in view of the strength of the evidence on Count 2 as charged, one would consider that the error we have pointed out could be considered harmless. That was my original approach to the problem and the conclusion of my original draft of this phase of the majority opinion, but I eventually found such disposition to be prevented by the authority and logic of Justice Black’s opinion in Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). In that case the Supreme Court held that where a jury was instructed that they could base a conviction solely on a finding of an offense not charged in the indictment the conviction must be reversed, regardless of the harmless error rule, because the defendant had an absolute right to be tried only on felony offenses charged by the grand jury.
The indictment in Stirone charged a Hobbs Act offense of unlawfully interfering with interstate commerce involving the shipment of sand for a ready-mix concrete plant, brought into Pennsylvania from other states. During the trial, in addition to evidence of the impairment of commerce in sand, evidence was also admitted, over objection, of a potential effect on interstate commerce involving shipments of steel from a plant in Pennsylvania into other states. This commerce in steel was not alleged in the indictment. And there, as here, the judge charged the jury that it could return a guilty verdict solely on a finding of the offense that was not charged in the indictment, i.e., that the concrete was used for constructing a steel mill which would manufacture steel to be shipped in interstate commerce. The Supreme Court held 22 that the indictment properly charged an offense with respect to the sand, but that it was error to instruct the jury that they could convict solely on the basis of the uncharged steel shipments, and that the error could not be dismissed as merely an insignificant variance between allegation and proof and thus harmless error as in Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935).
The court reasoned, in view of the trial court’s instruction, that it could not be said with certainty that Stirone was not convicted “solely” on the offense charged by the grand jury in the indictment. That is the precise situation here. Thus, while the trial court in Stirone did not formally amend the indictment, “the effect of what it did [by the instruction] was the same [and that] variation between pleading and proof . destroyed the defendant’s substantial right to be tried only on charges presented in an indictment returned by a grand jury.” 361 U.S. at 217, 80 S.Ct. at 273.
It was the denial of the constitutional right of every defendant to be tried only on charges laid by a grand jury that led to the reversal in Stirone.
*391Deprivation of such a basic right is far too serious to be treated as nothing more than a variance and then dismissed as harmless error. Compare Berger v. United States, 295 U.S. 78 [55 S.Ct. 629, 79 L.Ed. 1314]. The very purpose of the requirement that a man be indicted by grand jury is to limit his jeopardy to offenses charged by a group of his fellow citizens acting independently of either prosecuting attorney or judge. Thus the basic protection the grand jury was designed to afford is defeated by a device or method which subjects the defendant to prosecution for interference with interstate commerce which the grand jury did not charge.
361 U.S. at 217-18, 80 S.Ct. at 274. (emphasis added).
The factual situation here is indistinguishable from that in Stirone. Had the grand jury intended to indict defendants in Count 2 for obstructing justice by a defrauding of federal agencies through their misuse they would certainly have included such charge in the indictment. The evidence thereof was sufficiently voluminous so that we cannot assume that it was overlooked, and we are fortified in this conclusion by the several allegations in the conspiracy count (Count 1) that effectively charged misusing the CIA (defrauding an agency of the United States).
The conspiracy count also charged obstruction of justice (18 U.S.C. § 1503) as the first object of the conspiracy, and because of appropriate allegations, the evidence of obstructing justice through misuse of the CIA could be relied upon in proof of the conspiracy count. But the more specific allegations of Count 2, because they never alleged a misuse of the federal agencies, did not permit the court to instruct the jury that the evidence which was only admissible on Count 1 could do double duty and also furnish the basis for finding the defendants guilty on Count 2 of obstructing justice.
The further assertion is made by the majority opinion that appellants were not prejudiced by the court’s erroneous instruction because of the overwhelming proof of guilt. But the teaching of Stirone is that where there is overwhelming proof of quilt of an offense not charged in the indictment returned by the grand jury the conviction on that count must be reversed.
IX. THE APPLICATION OF STIRONE
Under Stirone the judgments of conviction on Count 2 should therefore be reversed. This in no way would interfere with the conviction on any other count nor would it result in any diminution of the sentence of any defendant. My colleagues have normally been very alert to correct such elementary errors, particularly when the overall sentence would not be affected in any way, but as above stated, for some unexplained reason they do not seem to be similarly motivated by the error in this count. A defendant could not know he was charged with obstructing justice by defrauding a government agency (e. g., the CIA), if the indictment alleged he obstructed justice by making cash payments and promises of benefits and by other similar means.
X. THE NECESSITY FOR FACTUAL ALLEGATIONS
In discussing this issue the majority opinion gets lost between Rule 7 and the decided cases and never come to grips with the requirement that “the essential facts constituting the offense charged” must be stated in the indictment. Rule 7(c) Fed.R.Crim.P. In a clever play on words the majority substitutes “elements” for “facts” to attempt to obviate the requirement that the elements must be factually alleged. The cases cited by the majority are better authority for the converse of its assertion. For instance, consider the recent decision in Hamling v. United States, 418 U.S. 87, 117—18, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974):
“Undoubtedly the language of the statute may be used in the general description of an offense [i. e., the elements], but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific *392offense, coming under the general description, with which he is charged.” United States v. Hess, 124 U.S. 483, 487 [88 S.Ct. 571, 573, 31 L.Ed. 516] (1888).
(Emphasis added). No further authority is needed to point out the error of the majority’s position on this point. To state, as the majority does, that Hamling charged the offense “only in the statutory language of 18 U.S.C. § 1461” is erroneous. A mere look at the opinion in the Ninth Circuit discloses that in each count the specific “Brochure” which was allegedly obscene was specifically referred to. 481 F.2d at 307. What greater factual specificity was needed? The law just does not permit the complete absence of factual allegations in indictments that the majority now claims. Also, Russell v. United States, 369 U.S. 749, 764, 82 S.Ct. 1038, 1047, 8 L.Ed.2d 240 (1962):
Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute.
(Emphasis added).
In a conclusory statement, which does not state the particular objection to which it refers, the majority asserts that “Rule 7(c), in fact, expressly sanctions indictments in the language to which Haldeman objects,” Majority opinion at 348 of 181 U.S.App.D.C., at 125 of 559 F.2d (emphasis added). This amounts to a finesse and a failure to deal with the real complaint. Appellants do not attack the indictment. The indictment is good. It alleges certain specified crimes. Appellants do attack the court’s instruction because it exceeded the indictment. So much for the attempt to divert the discussion to issues that nobody is raising.
Basically, the majority, by direction and indirection, is attempting to assert that requiring an allegation of defrauding the government by misuse of the CIA concerns only an evidentiary particular — a means— and any deficiency may be cured by a bill of particulars. Glasser v. United States, 315 U.S. 60, 66, 62 S.Ct. 457, 86 L.Ed. 680 (1942) is relied upon (Majority opinion at 348 of 181 U.S.App.D.C., at 125 of 559 F.2d), and along with Burton v. United States, 202 U.S. 344, 372-73, 26 S.Ct. 688, 50 L.Ed. 1057 (1905), is frequently cited for the proposition that “particulars need not be included in an indictment.” I agree wholeheartedly, but we are not talking about particulars or evidentiary details when we talk about requiring an allegation of “defrauding the government” — that is a basic factual allegation of a specific crime which must be charged by a grand jury or not at all. A mere glance at Glasser and Burton will convince anyone that my colleagues’ view of the law is incorrect. What Glasser is talking about is that
[T]he particularity of time, place, circumstances, causes, etc., in stating the manner and means of effecting the object of a conspiracy ... is not essential to an indictment. Crawford v. United States, 212 U.S. 183 [29 S.Ct. 260, 53 L.Ed. 465].
315 U.S. at 66, 62 S.Ct. at 463 (emphasis added). But that is a far cry from holding that a general statement of the specific factual allegation that identifies the offense is not required. Such is a requirement. When one examines the extensive factual allegations (set out in n. 23) that were made in the Glasser indictment, it is apparent that my colleagues are wide of the mark on this point.23 The factual allega*393tions in the Burton indictment were even more extensive.24
It can be seen from the foregoing cases that the specific factual allegations of those indictments did identify the offenses and that what the cases hold is that it is not necessary to allege detailed evidence. That is not this case. The majority opinion would support an indictment that charged
Haldeman on or about June 7,1972 in the District of Columbia violated 18 U.S.C. § 1503 by interfering with the Grand Jury investigation of the Watergate break-in and thereby did corruptly obstruct the due administration of justice by various means.
Such indictment does not allege the “essential facts constituting the offense,” and the Grand Jury so recognized. It accordingly alleged facts to identify the specific offense it was charging, i. e.:
[Defendants] . . . did corruptly obstruct . . . and .
corruptly endeavor ... to obstruct . the due administration of justice in conjunction with an investigation . by making cash payments and offers of other benefits ... for the purpose of concealing . . . the identities of the persons who were responsible for . . . the activities [being investigated] . . . and by other means.
(Emphasis added). All these facts are necessary to identify the particular offense with which defendants were charged.
Merely saying that the defendants are charged with obstructing justice in the Grand Jury investigation is obviously insufficient to allege the factual elements that are essential to a valid indictment. It was necessary to allege that the defendants did this “by making cash payments and offers of other benefits” for the stated purpose. These facts identify the offense, not merely the target or objective. They are not evi*394dentiary details, they are allegations of general facts that describe the essential facts of the particular offense.
A similar allegation of “defrauding the CIA” was necessary if evidence of “misuse of the . . . CIA” alone was to constitute an offense. “Misusing” the CIA might be an evidentiary detail if it were admissible under some more general factual allegation, but unless there is an allegation that defendants “defrauded the CIA” as an agency of the United States, such evidence is not relevant to any offense that is factually charged in the indictment. It is obviously wide of the law to permit a conviction to stand on evidence of “misusing the . CIA” where there is no allegation whatsoever that the CIA was defrauded. Thus, the requirement that the indictment contain such general factual allegation before evidence of misusing the CIA alone can furnish the basis for a conviction on that count does not concern an evidentiary particular.
XI. THE INTERPRETATION OF THE INDICTMENT
Nor is the interpretation of the indictment by my colleagues a permissible one. Ejusdem generis is clearly applicable and the requirement for the application of this elementary rule cannot be dismissed with a trite objection to “incanting these Latin phrases” (Majority opinion at 350 of 181 U.S.App.D.C., at 127 of 559 F.2d). If that constituted any semblance of a viable judicial answer any judge could dispose of habeas corpus, corpus delicti and res judicata by a mere stroke of the pen. My colleagues in this opinion certainly obliterate stare decisis with respect to the law on indictments. Who knows, maybe dominus vobiscum and e pluribus unum are next on their list. However, ejusdem generis is clearly applicable here and I am surprised with my learned colleagues’ unfamiliarity with this very elementary, but basic, rule of construction. Ejusdem generis does nothing more than apply the normal meaning of such words in such context. My colleagues, however, claim
By alleging that the obstruction of justice with which the defendants were charged was carried out “by other means” in addition to those specified, the indictment effectively broadens the scope of the acts to which jeopardy attaches and correspondingly reduces the opportunity for subsequent prosecutions of these defendants for the alleged obstruction of justice during the lengthy period alleged in the indictment (June 17, 1972 through March 1, 1974).
Majority opinion at 349 of 181 U.S.App.D.C., at 126 of 559 F.2d. The majority would thus broaden the indictment beyond the facts alleged. Just where it would stop they do not say. They would permit the conviction of defendant at trial on the basis of any evidence of obstruction, whether it was alleged or not, and they would bar any subsequent prosecution for obstruction of justice which defendants committed during this period. This is patently an erroneous statement and application of the law. The massiveness of its error defies description.
For instance, assume defendants were acquitted on Count 2 and it was discovered before trial that they had caused the killing of a material witness, Mrs. Hunt, so she could not testify against them before the Federal Grand Jury. There would be no doubt that they could subsequently be charged with so obstructing federal justice. Or assume it was discovered before trial that the defendants had threatened several Grand Jurors who were hearing the case and those jurors had obstructed the Grand Jury investigation. Certainly such offense could be indicted after the trial. And I challenge the majority to state, if either of such offenses were discovered prior to trial, that they could be proved under the allegations of Count 2. To say that evidence of such offenses could be admitted under an indictment charging the making of cash payments and offers of other benefits and other means, and that a conviction could rest solely on evidence of the subsequently discovered offenses of murder and jury tampering, is patently ridiculous. The majority opinion thus grossly misstates the *395law. It will be very hard to live with this law in the future.
XII. THE INTENT OF THE GRAND JURY
It is also rather clear, if one studies the indictment, that the Grand Jury never intended to include the charge of obstructing justice by delaying the investigation through a defrauding of the CIA as part of the obstruction of justice alleged in Count 2. A mere reading of Count 1 plainly shows that the Grand Jury charged that one object of the conspiracy was “to defraud the . . CIA,” but after that allegation was made in Count 1, the Grand Jury made absolutely no mention of the CIA in Count 2. So the Grand Jury was thoroughly aware of the facts. Had it intended to include such activities in the obstruction of justice count all that was required was to insert in the indictment:
by defrauding the Central Intelligence
Agency, an agency of the United States after the phrase “September 15, 1972.” Such would be a general factual allegation and obviously is not an evidentiary particularization. But no such allegation was made.
Because of the extreme prominence of the CIA activities in the charged offenses one cannot argue that the grand jury forgot them. It rather appears that it considered that Count 1 sufficiently set forth the offense they wished to indict upon, particularly because it alleged a consummated conspiracy. The Grand Jury could thus have been motivated not to follow the practice, which is much objected to by some, of charging both a consummated conspiracy and a substantive offense to commit the same crime.
This result may also have been dictated by the peculiar statutory status of the offense of defrauding an agency of the United States. There is no such general substantive offense in the federal statutes. Such acts are only covered in the conspiracy statute which makes it an offense to “conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof . . . ”25 The statute thus places defrauding a United States agency in a different category from any other “offense against the United States.” The only offense is conspiracy to defraud the United States. Merely defrauding the United States is not a substantive offense. It may have been because of this peculiar status of the offense that the Grand Jury was motivated not to complicate Count 2, but my colleagues seek to load everything into Count 2. In doing so they plainly commit error.
The failure of the indictment to include “perjury” in its factual charges alleged in Count 2 is another indication that the Grand Jury intentionally excluded misuse of the CIA from Count 2. Misuse of the CIA and perjury were both specifically alleged as objects of the conspiracy charged in Count 1 and both were equally probative on the issue of obstructing justice, but the Grand Jury never included either charge in Count 2. Had the Grand Jury intended the perjuries to be included in the factual elements of the obstruction charge it would have alleged “perjury” at least. All that would have been needed was the one word added to the indictment. And it cannot be said that the Grand Jury overlooked “perjury” because all the other twelve counts of the indictment did include some allegation of perjury or misstatement. The conclusion is thus irrefutable that the Grand Jury did not intend to include in Count 2 accusations of offenses that were made elsewhere in the indictment but which were completely omitted from Count 2.
Another reason which makes it clear why the Grand Jury did not intend to include defrauding the CIA in Count 2 is that Par*396kinson was named as a defendant in that count and there was never any suggestion of any evidence linking him to the alleged efforts to delay the investigation by defrauding the CIA. And since Parkinson could not be so charged, and the indictment did not so charge, it follows that the other có-defendants were not so charged because it was a joint count. Thus, when the court instructed the jury that Parkinson and all the others could be convicted of obstructing justice solely because of the alleged “misuse of the . . . CIA,” it was authorizing a guilty verdict against Parkinson and all the other defendants for an offense with which none of them had been charged. That cannot be done. Rather, it is being done, but it should not be done.
Acutely conscious of the evidentiary limitations, the Grand Jury drafted a neat count in which the offense was stated to have been committed by making cash payments, offers of other benefits, and by other similar means. Its handiwork should not be marred by an improper instruction and an unsound appellate affirmance — that would be impossible to live with.
XIII. THE BILL OF PARTICULARS
Also, contrary to the majority opinion, there is nothing in the record to support the assertion that appellants “abandoned the request” for a “bill of particulars as to the meaning of the phrase ‘by other means’ . presumably because it had been satisfied.” Even if they had there is no claim by the Government that it ever asserted a right or an intent to introduce evidence that the investigation was delayed through a defrauding of the CIA in support of Count 2 where such offense was not alleged.
Further, in an attempt to justify the admission of the evidence of misusing the CIA that was alleged in Count 1 in proof of the substantive offense charged in Count 2 the majority seek refuge in a reply made in a bill of particulars:
In response to a request which read: “State whether the allegations of obstruction of justice in [Count 2] are encompassed within the obstruction of justice alleged in Count One,” the Government said in its bill of particulars, “The substantive violation of 18 U.S.C. § 1503 alleged in Count 2 was among the offenses which were the objects of the unlawful agreement alleged in Count 1.” Doc. 177 at 5. Appellants did not challenge this response.
Majority opinion at 351 of 181 U.S.App.D.C., at 128 of 559 F.2d. This proves exactly nothing so far as this appeal is concerned. The fact that the substantive offense of obstructing justice by making cash payments, offers of benefits and by other similar means, as alleged in Count 2, was among the objects of the conspiracy charged in Count 1 does not make all the objects of the conspiracy as alleged in Count 1 part of the substantive offense charged in Count 2. No person ever contended that the substantive offense alleged in Count 2 was not among the objects of the unlawful conspiracy alleged, in Count 1. It is exactly the reverse of this that the majority would have to prove to sustain their position, i.e., that the conspiracy to misuse the CIA to limit the FBI investigation as charged in Count 1 was included in the offense charged in Count 2. This the majority has not demonstrated and its feeble attempt to confuse the issue by referring to a converse situation is proof of the lack of merit in its position.
XIV. THE “BY OTHER MEANS” ALLEGATION
That appellants did not move to strike “by other means” from the indictment proves nothing. There was nothing improper or illegal about the use of the phrase. The defendants had a perfect right to assume it would be given its normal meaning and construed to refer to “other similar means” and as such it was unobjectionable. As above stated, the abuse of the phrase was not by its inclusion in the count but by the court’s interpretation of it in its closing instruction.
United States v. Caine, 441 F.2d 454, 456 (2d Cir. 1971) and United States v. Mayo, *397230 F.Supp. 85 (S.D.N.Y.1964) are not to the contrary. In Caine the indictment charged that a particular specified advertisement was fraudulent that included 12 specific false advertising claims “among others.” Obviously the others referred to other false claims in the advertisement specified in the indictment. No further factual allegation was necessary and the indictment was upheld, partially on the ground that such evidence was legally admissible “for at least some purposes.” 441 F.2d at 456-57. The lack of relevance of Caine to this case is obvious.
As for Mayo, the decision held that an allegation “among others” to be proper because in the context of that indictment it did not constitute
an impermissible delegation of authority to the prosecutor which enabled him to enlarge the grand jury accusation.
230 F.Supp. at 86. The phrase there was included in a paragraph which went “to the matter of proof to sustain the charges”; i.e., to evidence. Here, the majority seeks to use the phrase “by other means,” not to support the introduction of “matter of proof to sustain the charges,” as in Mayo, but as a wedge to enlarge the Grand Jury charges to include a different factual offense than the ones alleged in the indictment.
In any event, no person contends that the phrase is invalid, but only that it should be given the meaning the Grand Jury obviously intended. The Grand Jury never intended to include defrauding the government by delaying the investigation in Count 2. Had it so intended the very competent prosecutors were more than sufficiently knowledgeable to accomplish that result.
XV. THE CONSPIRACY ARGUMENT
My colleagues also make the weird contention that the instruction as to Count 2 was unobjectionable because the evidence was admissible under Count 1. That is an unbelievable argument — to assert that defendants are not prejudiced by convictions on two counts on the basis of evidence that is admissible only on one count. I will be anxiously waiting for my colleagues to apply that law in the future to other cases.
Actually the majority has hit exactly upon what it is trying to do by its CIA argument. It is trying to make a second conspiracy count out of Count 2. In the heat of the trial the court made the same mistake and instructed the jury: “Count Two charges all of the defendants except Mr. Mardian with actually carrying out the agreement to obstruct justice which is charged in Count One.” (Tr. 12,378) (emphasis added). But the Grand Jury knew it could not hold the acts of certain defendants in a substantive offense against other defendants, as is done in a conspiracy count with acts of coconspirators committed in furtherance of the conspiracy. It refused to charge in the obstruction count that Parkinson participated in delaying the investigation by a defrauding of the CIA because he was not in any way involved in any of the CIA activity. Since the Grand Jury never so charged Parkinson in that count it never charged any of his co-defendants that were named in the count.
It is elementary law that absent a cross-reference one count in an indictment cannot be amended at trial to insert allegations from another count. One would have though it was not necessary to assert such an elementary rule of law to this court. Nevertheless the majority opinion contends:
In fact, the allegations of conspiracy to obstruct justice and to defraud the United States in Count 1 are the basis of the allegations of the substantive offense of obstruction of justice in Count 2.
Majority opinion at 351 of 181 U.S.App. D.C., at 128 of 559 F.2d (emphasis added). What a statement! There is absolutely no allegation whatsoever in Count 2 about defrauding the United States or about conspiracy. Or for that matter about perjury. This argument in the majority opinion makes it plain that it is trying to convert Count' 2 into another conspiracy count. One conviction on a single conspiracy is all that this court has previously allowed. It is plain error to' permit “the allegations of conspiracy ... to defraud the United *398States in Count 1 [to constitute] . the basis of the allegations of the substantive offense of obstruction of justice in Count 2.”
The sufficiency of the evidence on the conspiracy count is not an issue here. What is objected to is permitting a small portion of that evidence, offered in proof of the consummated conspiracy alleged in Count 1, to constitute the sole basis for the conviction on Count 2. Heretofore this court has always considered that it was immaterial what the evidence disclosed as to some other offense if a defendant was convicted on an offense that was not charged in the indictment. This was so because we considered that all defendants have a constitutional right to be tried only on felonious offenses that have been charged by the grand jury.
To support its decision here, to the contrary of this basic constitutional principle, the majority opinion attempts (at 350-352 of 181 U.S.App.D.C., at 127-129 of 559 F.2d) to distinguish Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960). It fails. It points only to evidentiary differences in the details of the two crimes. It is true that there are such differences — no two cases involve the same evidence — one is an interstate racketeering case and this case alleges obstruction of justice. But the controlling issues in the two cases are identical in that in both instances the trial court charged the jury that it could return a guilty verdict solely on evidence that supported an offense not charged in the indictment. All the attempts by the majority to pick out differences in the nature of the two offenses, in the evidence and in the jurisdictional base, cannot escape the complete identity of the two cases on that one controlling aspect. And that is all that matters. Stirone completely controls here.
XVI. THE GENERALITY OF THE INDICTMENT
The majority also tries to make a point that Stirone “suggested that if the indictment had been more general Stirone’s conviction would not have been reversed” (at 351 of 181 U.S.App.D.C., 128 of 559 F.2d). This is a good point, but it does not aid my colleagues — because the indictment there was not “more general” and neither is this indictment. The underlying point is that the obvious intent of the grand jury prevails and the fact that the indictment might have been more general is insufficient to permit the return of a guilty verdict on evidence that might have been admissible on a more general indictment. That rule applies here with equal force. To paraphrase Stirone:
It follows that when only [making cash payments and offers of other benefits] is charged ... a conviction must rest on that charge and not another, even though it be assumed that under an indictment drawn in general terms a conviction might rest upon a showing that [through misuse of the CIA the investigation was delayed].
361 U.S. at 218, 80 S.Ct. at 274.
The majority attempts to make a similar argument for excessive liberality in construing indictments out of the provision in Rule 7(c), Fed.R.Crim.P., which states that an indictment may allege “that the means by which the defendant committed the offense are unknown . . .” This, however, does not eliminate the necessity for the indictment alleging sufficient facts to identify the specific offense that was committed by the accused in some unknown way, i.e., that the defendants delayed the investigation by means unknown to the Grand Jury. In any event, the means here were not unknown — Count 1 specifically alleged “defrauding the . . . CIA” and the same allegation could easily have been included in Count 2 if the Grand Jury had intended to include it. That it did not do so indicates it did not intend to allege such offense.
XVII. THE AMENDMENT OF THE INDICTMENT
As the majority opinion above indicates, it would actually amend Count 2 by reference to the allegations in Count 1:
*399Here, however, some indication of what was before the grand jury with respect to the CIA and what was intended by the phrase “by other means” in Count 2 is provided by the language of the conspiracy charge in Count 1 and the evidence admitted without objection in support thereof.
(Majority opinion at 351 of 181 U.S.App.D.C., 128 of 559 F.2d).
As pointed out above, the breadth and importance of the allegations in Count 1 on the CIA and its failure to make even a slight reference to such charges in Count 2, when only a slight reference was needed, indicates that the Grand Jury did not intend to charge the defendants twice for a consummated conspiracy and the substantive offense of conspiracy to defraud a United States Agency.
Why the majority insist on failing to apply our established law which would reverse the conviction on this single count remains a mystery. If this law is applied in the future it will be impossible to live with.
For the foregoing reasons261 respectfully dissent to the limited extent indicated above.
APPENDIX A
SINDLINGER AFFIDAVIT
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
Criminal Case No. 74-110
United States of America v. John N. Mitchell, et al., Defendants
AFFIDAVIT
ALBERT E. SINDLINGER, being duly sworn, deposes and says:
1. I am the chief executive officer of Sindlinger & Company, Inc. of Swarthmore,
*400Pennsylvania. I have been engaged in various aspects of surveying and polling since 1929. From 1940 through September, 1946, I was Executive Vice President of Dr. George H. Gallup’s Audience Research, Inc. In the fall of 1946 I left the Gallup organization to form my own company which has been engaged in political and economic research since that time. We publish weekly economic and political reports and forecasts and- special surveys. Our clients include domestic and foreign automotive manufacturers, major banks, large financial institutions and national retailing organizations. We employ 45 people.
2. I am a member of the American Statistical Association, National Bureau of Economists and many other professional organizations. I have prepared survey material for and have testified in connection with the matters before the Congress of the United States, federal administrative agencies and courts.
3. The public opinion survey referred to herein was conducted from April 12-21, 1974, and was performed under my direct supervision and control. We employed a national sample of residential telephone numbers in 487 counties within the 48 contiguous states of the United States. These 487 counties were selected by computer on a random basis and individual telephone numbers were then selected within those counties, also by computer on a random probability basis. This process produces a selection of residential telephone numbers which is representative of the national population as a whole. Since we had also been requested to survey opinions within certain specific areas we derived additional samples for the counties within those areas which were not included within the counties which comprised our national sample. We used local telephone books in these additional counties to select residential telephone numbers on the same random probability by population basis as was employed for our national sample. The samples so derived were statistically representative of the population of the specific areas which we have been requested to survey.
4. The specific areas which were selected for survey in addition to the nation as a whole were:
(a) The District of Columbia;
(b) The state of Delaware which I am advised constitutes the territorial jurisdiction of the United States District Court for the District of Delaware;
(c) The following counties in the State of Indiana: Bartholomew, Boone, Brown, Clinton, Decatur, Delaware, Fayette, Fountain, Franklin, Hamilton, Hancock, Hendricks, Henry, Howard, Johnson, Madison, Marion, Monroe, Montgomery, Morgan, Randolph, Rush, Shelby, Tipton, Union and Wayne, which I am advised constitute the territorial jurisdiction of the Indianapolis Division of the United States District Court for the Southern District of Indiana;
(d) The following cities and counties in the State of Virginia: Cities of Richmond, Petersburg, Hopewell, Colonial Heights, and Fredericksburg, and the Counties of Amelia, Brunswick, Caroline, Charles City, Chesterfield, Dinwiddie, Essex, Goochland, Greensville, Hanover, Henrico, King and Queen, King George, King William, Lancaster, Louisa, Lunenburg, Mecklenburg, Middlesex, New Kent, Northumberland, Nottoway, Powhatan, Prince Edward, Prince George, Richmond, Spotsylvania, Surry, Sussex, Westmoreland and all other cites or towns geographically within the exterior boundaries of said counties, which I have been advised constitute the territorial jurisdiction of the Richmond Division of the United States District Court for the Eastern District of Virginia;
We also initiated a survey in the Eastern District of Pennsylvania, but that survey was not completed.
5. We utilized the following survey methodology. The telephone number shown by our sample was called. If the person answering the telephone was female, the surveyor would determine whether there was a male over the age of 18 in the *401household who was available then or at some other convenient time. If the answer was no, the female was interviewed. If the answer was yes, the male was interviewed either then or by a later call back.1 The person who was being interviewed was then asked a series of preliminary standard questions concerning economic issues and expectancies. They were then asked whether they were registered to vote, since we had been instructed that the survey should be limited to those persons who would be eligible to serve as jurors within the areas surveyed. Of a total national sample base of 1,096 adults (18 years or older), 935 or 85.2% stated that they are registered to vote. The District of Columbia total sample of 303 adults yielded 241 registered voters, or 79.3%. The Virginia area sample of 301 produced 237 registered voters, or 79%. The Delaware sample of 204 had 171 registered voters, or 84.3%. The Indiana area sample of 200 had 176 registered voters, or 87.8%.
6. Those persons who stated that they were registered voters were then asked a series of Watergate related questions. These included:
Have you ever read or heard anything about the fact that a number of President Nixon’s former aides have been in-dieted for covering up the Watergate affair?
Thinking of Nixon’s former aides who are now under indictment — do you have an opinion on their guilt or innocence?
How do you personally feel, do you feel they are guilty or innocent in the Watergate affair?
They were also asked a question which sought to identify the basis of their opinion, as follows:
In thinking of your own opinions with regard to the guilt or innocence of the defendants in the cases we have been talking about [which included the Fielding break-in case as well as this one]— what do you think has most influenced you — what you have read in the newspapers or what you have read in magazines, or your own political position?
7. The tabulated results2 of this survey were as follows:
*402
8. It is my opinion that the above indicated percentages for the nation are representative of the opinions of all registered voters in the nation within an overall maximum variation of ± 2.5% and that the above indicated percentages for the specific areas surveyed are representative of the opinions of all registered voters within an overall maximum variation of ±5%.
/s/ Albert E. Sindlinger
ALBERT E. SINDLINGER
Sworn to before me this 30th day of April, 1974.
/s/ Dorothy E. Baker Notary Public
My Commission Expires November 30, 1977
APPENDIX B
HOFFAR voir dire
[928] (John A. Hoffar entered the courtroom.)
THE COURT: Good morning, Mr. Hoffar.
Mr. Hoffar, I want you to know at the beginning that these questions are being propounded to you in private in the presence of the Defendants and their lawyers and the Government counsel not for the purpose of embarrassing you or prying into your personal affairs. This is the last part of our routine to determine whether or not you have the qualifications to be [929] selected to be on this jury if the lawyers *403select you. It is a routine matter and I hope you will take it in that light.
Mr. Hoffar, are you employed now or retired?
JUROR HOFFAR: I am a retired U.S. Park policeman.
THE COURT: How long were you connected with the U.S. Park Police?
JUROR HOFFAR: Twenty-one years.
THE COURT: What generally were your duties at that time?
JUROR HOFFAR: Mostly supervisory and in a patrol car.
THE COURT: Are you married?
JUROR HOFFAR: Yes sir.
THE COURT: Does your wife work?
JUROR HOFFAR: No, sir.
THE COURT: Has she ever been employed?
JUROR HOFFAR: Only part time.
THE COURT: Where was that?
JUROR HOFFAR: She just assisted where she went to school or college — Trinity College.
THE COURT: Here out near Catholic University?
JUROR HOFFAR: Yes, sir.
THE COURT: Do you have any children?
JUROR HOFFAR: No, sir.
THE COURT: Now, I don’t want to know how you voted in any election or what your political affiliations or anything [930] like that are, but this is a question I would like you to think about:
Are you or any relative or close friend a member of a political party? By, political party, I might say, like the local Republican State Committee or Democratic Central Committee?
JUROR HOFFAR: No, sir.
THE COURT: Did you contribute or have you ever contributed to any political party by way of cash or a check?
JUROR HOFFAR: Yes, sir.
THE COURT: Now, you recall I propounded a series of questions to about 18 or 12 of you as a group, you remember that? Were you in the group of 12 or 18?
JUROR HOFFAR: Eighteen.
THE COURT: Do you believe at this very moment, and without having heard any of the evidence that will be offered in this case, that any Defendant in this case is guilty of violation of any one or all of the charges set out in the various counts of the indictment?
JUROR HOFFAR: No, sir.
THE COURT: Your answer is, no. JUROR HOFFAR: No.
THE COURT: As you probably know, this case has been the subject of many stories in newspapers, magazines, articles, and so forth, and you may have read or heard about this case or about the indictment.
Now, I am not going to question you about what, if anything, you have heard or read about the case, but I am going to question you as to what you heard or read about the case to decide if you can be qualified to serve on this jury if you are selected by the attorneys at the proper time. But first I will make some comments so you can understand that simply because you may have heard or read or discussed this case does not mean that you will not be permitted to serve on this jury.
Neither I nor the Government, nor counsel for the Defendants, or the Defendants expect or are entitled to impanel a jury that has never heard anything about this case, read about it or discussed it or anything like that. We don’t expect to get that kind of a jury, because I think, frankly, it would be impossible.
Instead, we would like to get a jury where each juror is able to put aside anything he or she may have read or heard and any opinion he or she may have formed based thereon and decide these Defendants’ guilt or innocence based solely on the evidence you hear in open Court and in accordance with the instructions that I shall give you at the end of the trial, or the law of the case.
*404Now, I want to be sure, and counsel on both sides want to be sure, that you can decide this case for yourself based solely from what you hear in this courtroom at the proper time. Therefore, I ask you to consider very carefully the following [932] questions:
Had you heard about this case before coming into the courtroom, say, was it last Tuesday?
JUROR HOFFAR: Yes, sir, last Tuesday.
THE COURT: Had you heard about this case or read about it before that time?
JUROR HOFFAR: Yes, sir.
THE COURT: Does anything you may have heard or discussed about this matter particularly stand out in your mind? Any one thing or several things?
JUROR HOFFAR: No, sir.
THE COURT: Have you seen any of the Defendants or their lawyers on television or their pictures in the newspapers?
JUROR HOFFAR: Yes, sir.
THE COURT: Which ones? Can you indicate, if you remember?
JUROR HOFFAR: All of them.
THE COURT: You have seen all of them on television? Let’s take television first.
JUROR HOFFAR: Television and the newspapers. I haven’t paid particular attention.
THE COURT: You mean combined, that is, either on television or the newspapers, you have seen all their pictures from time to time, is that correct?
JUROR HOFFAR: Yes, sir.
THE COURT: What, if anything, do you remember about these Defendants? Does anything stand out in your mind after seeing them or hearing them talking, anything like that?
JUROR HOFFAR: I really haven’t paid that much attention to the whole thing to have anything stand out in my mind.
THE COURT: Do you read one or more of the daily newspapers here; and if so, which one?
JUROR HOFFAR: The Post mostly. Sometimes I see the Star.
THE COURT: You watch the news programs on television or listen to them on radio?
JUROR HOFFAR: Most days I do.
THE COURT: Have you followed the Watergate matters closely or casually?
JUROR HOFFAR: Casually.
THE COURT: Do you subscribe regularly to any magazines, we’ll say?
JUROR HOFFAR: Just Reader’s Digest.
THE COURT: How about Time Magazine or Newsweek, or Harper’s, or any of those kind of magazines?
JUROR HOFFAR: I just haven’t found time to subscribe to more than that. When I go to the library sometimes I read Newsweek or Business Week and that is about it.
THE COURT: Thank you.
Have you ever heard discussed or seen anything about [934] the so-called break-in of the Democratic National Committee in June of 1972?
JUROR HOFFAR: Yes, sir.
THE COURT: Read about it or discussed it or anything like that?
JUROR HOFFAR: Yes, sir.
THE COURT: What did you read about it if you remember?
JUROR HOFFAR: Just what is in the newspaper, just what everybody was talking about at the time.
THE COURT: Did you read about the results of the trial of the seven men who were indicted?
JUROR HOFFAR: Yes, I read the whole thing but I can’t remember exactly.
THE COURT: Thank you.
Now, recently a man by the name of Jeb Stuart Magruder and two reporters from the Washington Post by the name of Carl Bernstein and Robert Woodward wrote two books. Mr. Magruder wrote a book called, “An American Life — One Man’s Road to Watergate,” and the two reporters wrote a book called, “All The President’s Men.” Have you heard of either one or both books?
*405JUROR HOFFAR: Yes, sir.
THE COURT: Have you read either of the books?
JUROR HOFFAR: No, sir.
THE COURT: Have you read any serialized account of those books that might have appeared in the newspapers or [935] magazines like that?
JUROR HOFFAR: Probably have, but I don’t remember.
THE COURT: Do you recall them now?
JUROR HOFFAR: No, I just read them as I read the news.
THE COURT: Have you discussed this case or any of the Defendants with anyone or has anyone discussed the case or any of the Defendants in your presence?
JUROR HOFFAR: Yes, sir.
THE COURT: Can you remember who they might be that you have discussed the case with?
JUROR HOFFAR: It wasn’t that important, it doesn’t stand out in my mind. It was just idle conversation.
THE COURT: People that you might have worked with, friends of yours?
JUROR HOFFAR: Oh, yes.
THE COURT: Your wife, I suppose?
JUROR HOFFAR: Anybody that wanted to talk about it, I talked about it.
THE COURT: Do you recall when was the last time that you heard or read anything about this case? I am talking about the last time before last Tuesday when you came to Court, if you remember?
JUROR HOFFAR: I usually just read the headlines and if there is something outstanding, I read further.
THE COURT: Have you ever read the so-called tape transcripts that were released by former President Nixon which were contained in what has familiarly become known as the Blue Book, about that thick (indicating), transcripts of the tapes released to the public?
JUROR HOFFAR: I read the first couple days and there was just too much. I have other things to read.
THE COURT: Was that in the library that you read those comments?
JUROR HOFFAR: The newspapers.
THE COURT: Do you have any personal knowledge of the facts of this case separate from any information you may have heard or read, television, radio, newspapers, books or magazines — personal knowledge?
JUROR HOFFAR: No, sir.
THE COURT: Are you aware of the fact that the Senate Select Committee on Presidential Campaign Activities also known as the Watergate Committee, or the Ervin Committee, held hearings on what is termed the Watergate matters last summer sometime?
JUROR HOFFAR: I really haven’t kept track of it.
THE COURT: Are you aware that did happen?
JUROR HOFFAR: Oh, yes, sir.
THE COURT: Hearings were held and the hearings were televised nationally and locally, too, of course.
JUROR HOFFAR: Oh, yes.
THE COURT: Are you aware of the fact that the Judiciary Committee of the House of Representatives, also known as the Impeachment Committee, conducted hearings on the impeachment of former President Nixon? Are you aware of that?
JUROR HOFFAR: You see all these hearings are sort of lumped together in my mind. I really haven’t followed them closely to separate them.
THE COURT: Did you hear or see any part of the hearings on television or listen to any part on the radio?
JUROR HOFFAR: Yes, sir.
THE COURT: Often or infrequently?
JUROR HOFFAR: Infrequently.
THE COURT: They went on for some time as I remember.
JUROR HOFFAR: When I would listen to the news, if it was close to the news time, I would listen.
*406THE COURT: By the way, what programs do you usually listen to — news programs on radio or watch on television?
JUROR HOFFAR: Whatever anybody had on. I have no favorite news program.
THE COURT: Listen to this question carefully:
From what you have read or heard about this case from any source whatsoever, have you formed or expressed any opinion as to the guilt or innocence of any of these Defendants?
JUROR HOFFAR: Well, being a former policeman, I sort of tried to be neutral until a person has been convicted and I [938] really haven’t said definitely one way or the other.
THE COURT: All right, sir, thank you.
Now the Government and the Defendants in this ease are entitled to have this case decided on its merits, that is, on the evidence presented in open Court and pursuant to the law as the Court will try to explain it to the jury at the end of the case. You must not be influenced, of course, by any events that transpire outside of the courtroom. You may have read or heard that former President Richard M. Nixon has been pardoned for any offenses he may have committed against the laws of the United States while he was President. Are you aware of that?
JUROR HOFFAR: Yes, sir.
THE COURT: Is there anything about the pardon of Mr. Nixon that has caused you to form or express any opinion about the guilt or innocence of any of the Defendants in this case?
JUROR HOFFAR: No, sir.
THE COURT: Did you read, see, or hear about the Defendant, Mr. Ehrlichman’s trial recently in the ease of the United States v. Ehrlichman, commonly known as the Plumbers case? Do you recall that?
JUROR HOFFAR: Faintly, but I don’t remember much about it.
THE COURT: Do you recall anything about that trial? Does anything stand out in your mind about the so-called Plumbers case?
JUROR HOFFAR: I wasn’t that interested to remember.
THE COURT: Did you happen to recall the result of that case, what the jury did, what the verdict was?
JUROR HOFFAR: Offhand, no.
THE COURT: Were you aware that former President Richard M. Nixon was named as an unindicted co-conspirator by the Grand Jury in this case?
JUROR HOFFAR: I think I remember that as a headline.
THE COURT: Did your knowledge that Mr. Nixon was named as an unindicted co-conspirator cause you to form any impression or opinion as to the guilt or innocence of any one of the Defendants in this case?
JUROR HOFFAR: No, sir.
THE COURT: Do you have any prejudice, bias, sympathy or fixed opinion which would prevent you from following the instructions which the Court will give to the jury at the end of the case?
JUROR HOFFAR: Not that I can think of.
THE COURT: Do you conscientiously believe you can render a fair and impartial verdict in this case if you are selected to serve on the case free from any prejudice, bias, if any you might have, for or against the Government or the Defendants?
JUROR HOFFAR: I think so.
THE COURT: Did you make any effort to study the facts of this case to prepare for your jury duty?
JUROR HOFFAR: No, sir.
THE COURT: Does any reason whatsoever suggest itself to you at this time why if you are selected to serve on this jury you feel you could not listen to the evidence objectively and the testimony and at the proper time render or vote for a verdict or join in a verdict which will be based in your opinion solely upon the evidence that will be offered in open Court and the instructions on the legal principles involved of the law, in other words, applicable to the case?
*407JUROR HOFFAR: No, sir.
THE COURT: No reason whatsoever?
JUROR HOFFAR: None that I can think of offhand.
THE COURT: All right, let the juror step out for a few minutes.
(Juror Hoffar was temporarily excused from the courtroom.)
THE COURT: My Law Clerk reminds me there is one other question I forgot to ask him. Bring him back.
MR. NEAL: Your Honor, to save time, could we suggest — maybe we are talking about the same one—
THE COURT: —I have this question which my Law Clerk reminded me:
As you sit here today, without having heard any [941] of the evidence in this case, do you think it is unfair to prosecute certain of Mr. Nixon’s associates, including some of the Defendants sitting in Court today simply because Mr. Nixon, himself, has been pardoned?
MR. NEAL: We are talking about the same one, Your Honor. But there is one other area I didn’t understand, maybe I just missed it, does the juror have adult children?
COUNSEL: He has no children.
MR. NEAL: I missed that.
MR. BRESS: Your Honor, I don’t think the juror was responsive to your first question as to whether he had any opinion on the guilt or innocence of the Defendants. I thought his attempted answer was not responsive. He said as a policeman he would try to be neutral. He said he would be neutral until convicted.
MR. HUNDLEY: Judge, could you also ask him — he says he is retired. Could you ask him what he does do? He obviously doesn’t read or listen to anything about this case. Could you inquire a little bit about how he spends his time or at least how long he has been retired?
THE COURT: All right.
MR. WILSON: May it please the Court, with regard to Mr. Hundley’s question, I think he may have asked most of which I want to ask, the man’s personal situation, that is to say, when he retired, the reason for his retirement. After all, he [942] only had 21 years of service and he is 57, and why he does not find time to read much. What is he doing?
THE COURT: That is personal, I think. I don’t want to get into that.
MR. WILSON: It helps us to form a judgment about the capacity of this man, Your Honor, which is one of the things we are entitled to do on a challenge.
THE COURT: You mean I should inquire as to how he spends his time?
MR. WILSON: Certainly. This is startling. A man who is only 57 and is retired and he is busy, busy what? Also, getting down to the question of opinion, you didn’t ask him what opinions were expressed in his presence, if any. And on the question, have you expressed an opinion as to guilt or innocence, you didn’t ask him whether he had an opinion.
THE COURT: I thought I did.
MR. WILSON: He could have an opinion but not having expressed it.
THE COURT: Didn’t I ask him, isn’t that contained or implied in the last question: Do you know any reason whatsoever and so forth and so forth? That is the cover-all question.
MR. WILSON: That question from a judicial point of view is absolution. I don’t care what the answer to that question is, you do, but I don’t.
THE COURT: I can’t satisfy 15 lawyers, obviously.
Everybody has a different idea about the questions.
MR. BRESS: Your Honor, that last question, we always ask it, but that leaves the judgment or decision to the juror where the decision on this question really resides with us.
THE COURT: All right, bring the juror back.
(Juror Hoffar returned to the courtroom.)
*408THE COURT: Do you recall whether or not I asked you in the early part of this interrogation whether or not you had any opinion — I am talking about now, as you sit in the jury box, do you have any opinion as to the guilt or innocence of any one or all of the Defendants?
JUROR HOFFAR: I have no opinion.
THE COURT: All right. Now, you said you were retired. You are 57 years old. You were a member of the Park Police, what was it, 21 years?
JUROR HOFFAR: Yes, sir.
THE COURT: Do you have any hobbies? Do you do a lot of reading? What do you do in your spare moments, some of the lawyers would like to know?
JUROR HOFFAR: It would be hard to believe, but I don’t have any real hobbies that take up a lot of time. I have had two houses to take care of, my wife to take care of, and more or less wherever she wants to go, I take her, and we are just trying to enjoy ourselves and that takes — I don’t know where the time goes. I have no idle moments.
THE COURT: Do you and your wife travel much?
JUROR HOFFAR: No, sir, just around town.
THE COURT: I am talking about out of the City?
JUROR HOFFAR: No, sir.
THE COURT: Do you read quite a bit? I’m talking about outside of newspapers and magazines.
JUROR HOFFAR: I love to read but I just can’t read very long.
THE COURT: All right. Have you ever expressed any opinion that you might have had to any person that you can recall or anyone, as a matter of fact, about this ease one way or the other?
JUROR HOFFAR: I probably have.
THE COURT: Do you recall what that opinion might have been?
JUROR HOFFAR: Well, it really isn’t that important to me to get into an argument with somebody. If somebody discusses with me their points of view, I just agree with them, it doesn’t make any difference to me to try to change their mind.
THE COURT: What I am trying to find out is have you ever taken a firm position on any part of this case, saying, well, I think so-and-so is guilty, I think so-and-so is innocent, or, I think this, or, I think that? That is what I am talking about, an opinion.
Have you ever done that with anybody? JUROR HOFFAR: No, sir.
THE COURT: You have a completely open mind on this matter as to the guilt or innocence of these Defendants?
JUROR HOFFAR: As far as forming a definite opinion, I have an open mind.
THE COURT: All right.
Listen to this question very carefully:
As you sit here today without having heard any of the evidence in this case, — is that clear?
JUROR HOFFAR: Yes.
THE COURT: —do you think it unfair to prosecute certain of Mr. Nixon’s associates, some of whom are in the courtroom today, including some of the Defendants, as I said, sitting in the courtroom today, simply because Mr. Nixon, himself, has received a pardon?
Do you understand the question or do you want me to repeat it?
JUROR HOFFAR: Because Mr. Nixon received a pardon, no one else should be convicted, is that it?
THE COURT: That isn’t precisely the way I put it. Let me read it again. Think about it:
As you sit here today without having heard a word of the evidence in this case, do you think it is unfair to prosecute, I mean for the Government to prosecute certain of Mr. Nixon’s associates, including some of the Defendants sitting in Court [946] today, simply because Mr. Nixon, himself, has received a pardon from President Ford?
JUROR HOFFAR: No, sir.
THE COURT: You don’t think so?
JUROR HOFFAR: No.
*409THE COURT: All right, sir, you may step out.
(Juror Hoffar left the courtroom.)
MR. WILSON: May it please the Court, it is very obvious to me this juror has not been forthright with you.
THE COURT: If it is obvious to you, it is not obvious to me, Mr. Wilson.
MR. WILSON: I am the one to be concerned about it.
THE COURT: I am just as concerned as you are that these men get a fair trial in my courtroom, I want you to understand that.
MR. WILSON: I understand that, but it helps us a lot if you will find out what he — he equivocated with you as to whether he heard it discussed and if it was discussed, he at one time said, sure, they are guilty and some other time somebody advocated to the contrary and said they weren’t guilty. This man stopped short of the crucial answers. If he has not an opinion, he has got a view. It is just as clear to me as it is possible to be.
THE COURT: Obviously, he is not one of these so-called intellectuals but I think he is a man that has good common sense [947] and that to me is important.
Let’s proceed.
MR. WILSON: I think he is equivocating with you.
THE COURT: If you think that, it is on the record.
MR. HUNDLEY: I challenge for cause.
MR. FRATES: I don’t state it as strongly as Mr. Wilson, but I would request Your Honor to ask him what is his opinion, because I think it occurs to me he does have an opinion and in his answers to Your Hon- or he seems to have qualified them.
I don’t think all of us are over-reacting and I request Your Honor to ask him what his opinion is.
THE COURT: I think I have covered that. I will deny your request.
. MR. GREEN: Your Honor, following up something Mr. Frates said, my notes show in answer to one question he stated as far as forming a definite opinion, I have an open mind. That leads inescapably to the conclusion he has some opinion and has not been testified to hear.
THE COURT: I don’t intend to conduct a cross-examination of these people. I will interrogate them fairly in my opinion. Obviously, again, I can’t satisfy every one of you.
Let’s proceed.
MR. BRESS: Are we entitled to know whether or not he is retired because of some disability?
[948] THE COURT: Bring him back.
MR. HUNDLEY: I thought you indicated to me that you would remind these people as they came in that they are still under oath.
THE COURT: I am going to tell them it has been suggested that I remind them.
MR. HUNDLEY: Yes, sir.
(Juror Hoffar returned to the courtroom.)
THE COURT: Mr. Hoffar, it has been suggested that I remind you that you are still under oath, you understand that?
JUROR HOFFAR: Yes, sir.
THE COURT: Now, were you retired for disability or what was the reason for your retirement, if any?
JUROR HOFFAR: Well, I was a year over the 20 years necessary for retirement and I figured I used up all my luck.
THE COURT: All right, sir, thank you.
Now, I want to explain to you something, sometime I forget to remind the jurors: When you go back upstairs — the young lady will escort you up — please do not discuss with any prospective juror — you are a prospective juror now — you will be called back to the jury box at the proper time when we actually start impaneling the jury. Please do not talk about what we discussed here, the questions I asked you or anything like that when you go home this evening, please don’t talk to your wife about what transpired in Court and above all, don’t [949] talk to any person about what took place in the confidence of the lawyers, and so forth. All right.
(Juror Hoffar was excused.)
. This estimate follows from finding the average number of column inches per file page in ten inches of the file, then extrapolating that figure to all four boxes. A sampling showed an average of 15.4 column inches per file page, with 1370 file pages in a ten-inch sample. There are at least 40 inches of files in the four boxes, for a total of 84,392 column inches. Reducing this by one-third to allow for scattered New York Times and other clippings, a figure of 56,262 column inches results. This averages to some 80 column inches per day for the 682 day period, but the intensity of the coverage fluctuates about plus or minus 60% around the 80 column inch/day figure over the period, for a daily average of some 30 to 120 column inches.
. Multiple answers were recorded in more than one category. As a consequence, the totals of all answers to these questions will exceed 100%. (N.3 in Sindlinger Affidavit).
. The probability of the observed difference (between the percentage of persons believing the defendants guilty in the Washington and in the national samples) being due to chance fluctuation is less than one one-hundredth of one per cent, using accepted statistical theory.
. See, e. g., Doonesbury comic strip in The Washington Post, Aug. 13, 1974, § B at 10; id., Aug. 12, 1974, § B at 8; id., July 27, 1974, § E at 50; id., July 25, 1974, § F at 16; and Her-block cartoons in id., Aug. 11, 1974, § C at 6; July 28, 1974, § C at 6.
. This tendency was documented in The Art of Clear Thinking, supra.
. The trial was in the Supreme Court of the District of Columbia (the predecessor to the U.S. District Court for the District of Columbia) on Criminal No. 42304 on the indictment returned June 30, 1924.
. References are to the October 7, 1929 transcript in the U.S. Archives in the case in the Supreme Court of the District of Columbia, No. 42304, entitled United States v. Albert B. Fall. This case involved the indictment returned June 30, 1924 for violation of the bribery section of the criminal code, i. e., § 117 of the penal code, 18 U.S.C. § 207 (35 Stat. 1109).
. Hoffar Voir Dire at 939, Appendix B infra at 406 of 181 U.S.App.D.C., at 183 of 559 F.2d.
. Id.
. Tr. 52.
. The entire text of Count 2 is as follows: The Grand Jury further charges: ,
1. From on or about June 17, 1972, up to and including the date of the filing of this indictment, in the District of Columbia, and elsewhere, JOHN N. MITCHELL, HARRY R. HALDEMAN, JOHN D. EHRLICHMAN, CHARLES W. COLSON, KENNETH W. PARKINSON and GORDON STRACHAN, the DEFENDANTS, unlawfully, willfully and knowingly did corruptly influence, obstruct and impede, and did corruptly endeavor to influence, obstruct and impede the due administration of justice in connection with an investigation being conducted by the Federal Bureau of Investigation and the United States Attorney’s Office for the District of Columbia, in conjunction with a Grand Jury of the United States District Court for the *385District of Columbia, and in connection with the trial of Criminal Case No. 1827-72 in the United States District Court for the District of Columbia, by making cash payments and offers of other benefits to and for the benefit of the defendants in Criminal Case No. 1827-72 in the United States District Court for the District of Columbia, and to others, both pri- or to and subsequent to the return of the indictment on September 15, 1972, for the purpose of concealing and causing to be concealed the identities of the persons who were responsible for, participated in, and had knowledge of the activities which were the subject of the investigation and trial, and by other means.
(Title 18, United States Code, Sections 1503 and 2.)
. See n.l, supra.
. The conspiracy count alleged that the defendants unlawfully conspired to defraud the United States Government (and various agencies thereof, including the CIA) of its right to have the officials of those departments and agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty, unlawful impairment and obstruction. Indictment, Count 1, ¶ 10, J.App. 115-16. The first count also alleged that it was a part of the conspiracy that the conspirators would, by deceit, craft, trickery and dishonest means, defraud the United States by interfering with and obstructing the lawful governmental functions of the CIA by inducing that agency to provide financial assistance to those involved in the Watergate break-in. Indictment, Count 1, H 13, J.App. 117. Two overt acts also alleged that in furtherance of the conspiracy and to effect the objects thereof, on or about June 24, 1972, Mitchell and Mardian suggested to Dean that the CIA be requested to provide cover funds to assist those involved in the Watergate break-in, Indictment, Count 1, Overt Act ¶ 7, J.App. 120, and that Ehrlichman on or about June 26, 1972, at a meeting in the White House with Dean approved the suggestion that Dean ask the Deputy Director of the CIA whether that agenr cy could use cover funds to pay the bail and salaries of those involved in the Watergate break-in. Indictment, Count 1, Overt Act fl 8, J.App. 71.
. Government Brief at 133 n. 210: “[T]he argument only could have merit'if [the defendant] has been surprised by proof of the ‘other means’ and thus did not have adequate warning in order to prepare his defense. There was no surprise here.”
. United States v. Stewart, 311 U.S. 60, 64, 61 S.Ct. 102, 85 L.Ed. 40 (1940); Northern Pac. Ry. v. United States, 156 F.2d 346, 350 (7th Cir. 1946), aff’d, 330 U.S. 248, 67 S.Ct. 747, 91 L.Ed. 876 (1947); Brown v. Giiligan, Will & Co., 287 F.Supp. 766, 775 (S.D.N.Y.1968); People v. Hale, 156 Cal.App.2d 478, 481, 319 P.2d 660, 662 (1957); Fitzgerald v. State, 220 Iowa 547, 551, 260 N.W. 681, 683 (1935); Ricci v. Ricci, 96 N.J.Super. 214, 225, 232 A.2d 709, 715 (1967); Black’s Law Dictionary 1270 (4th ed. 1968); 2A Sutherland Statutory Construction § 51.01 (4th ed. C. Sands 1973).
. This rule applied in the interpretation of statutes and other written documents, declares that, unless otherwise indicated, when general words follow an enumeration of particular classes of persons or things the general words will be construed as applying only to the same general class as those previously enumerated. United States v. Baranski, 484 F.2d 556, 566-67 (7th Cir. 1973); Bumpus v. United States, 325 *387F.2d 264, 267 (10th Cir. 1963); Campbell v. Glacier Park Co., 381 F.Supp. 1243, 1250 (D. Idaho 1974); United States v. Brown, 309 A.2d 256, 258 (D.C.App.1973); Black’s Law Dictionary, supra note 15, at 608; 1 Bouvier’s Law Dictionary 979 (3d rev. ed. F. Rawle 1914); 2A Sutherland Statutory Construction, supra note 15, at § 47.17.
. Weyerhauser S.S. Co. v. United States, 372 U.S. 597, 600-01, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963); Garner v. Louisiana, 368 U.S. 157, 167-68, 82 S.Ct. 248, 7 L.Ed.2d 207 (1961); Cleveland v. United States, 329 U.S. 14, 18, 67 S.Ct. 13, 15, 91 L.Ed. 12 (1946). “Under the ejusdem generis rule of construction the general words are confined to the class and may not be used to enlarge it ” (emphasis added); United States v. Salen, 235 U.S. 237, 249, 35 S.Ct. 51, 59 L.Ed. 210 (1914). “[Ujnless there is a clear manifestation to the contrary, general words, not specific or limited, should be construed as applicable to cases or matters of like kind with those described by the particular words.” United States v. Stever, 222 U.S. 167, 174, 32 S.Ct. 51, 53, 56 L.Ed. 145 (1911).
. If this indictment were to be interpreted as the Government urges, vital constitutional rights of the defendants would be denied. Even though the law has moved away from “rules of technical and formalized pleading which . . characterized an earlier era,” Russell v. United States, 369 U.S. 749, 762, 82 S.Ct. 1038, 1046, 8 L.Ed.2d 240 (1962), a certain degree of the factual specificity is still required in an indictment. As the Supreme Court recently held: “ ‘Undoubtedly the language of the statute may be used in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description, with which he is charged.’ United States v. Hess, 124 U.S. 483, 487, [8 S.Ct. 571, 573, 31 L.Ed. 516] (1888),” quoted with approval in Hamling v. United States, 418 U.S. 87, 117-18, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974). See also United States v. Nance, 174 U.S.App.D.C. 472, 533 F.2d 699 (1976). It has long been recognized that where the statutory definition of an offense includes generic terms, the indictment must descend to particulars and specify *388the species. United States v. Cruikshank, 92 U.S. 542, 558, 23 L.Ed. 588 (1875).
The rationale for this requirement is that, under the Sixth Amendment every accused person has a “right to be informed of the nature and cause of the accusation” and under the Fifth Amendment and Fed.R.Crim.P. 7(a), offenses such as are here involved must be prosecuted by a grand jury indictment. After the grand jury has returned its indictment, the charges may not be broadened or amended by the court or the prosecutor — only the grand jury itself can do that. Stirone v. United States, 361 U.S. 212, 216, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Ex Parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849 (1887). If the indictment is phrased in vague language, there is a danger that the defendant may be tried on charges never presented to the grand jury, in violation of the Constitution. See Norris v. United States, 281 U.S. 619, 622, 50 S.Ct. 424, 74 L.Ed. 1076 (1930). Thus, the Supreme Court has set out two tests of a valid indictment: (1) whether it contains the factual elements of the offense charged and fairly informs the defendant of the charges against which he must defend; and (2) whether it enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense. Hamling v. United States, supra at 117, 94 S.Ct. 2887; Russell v. United States, supra at 763-64, 82 S.Ct. 1038; United States v. Debrow, 346 U.S. 374, 376, 74 S.Ct. 113, 98 L.Ed. 92 (1953); Hagner v. United States, 285 U.S. 427, 431, 52 S.Ct. 417, 76 L.Ed. 861 (1932).
In the present case, the statute proscribing obstruction of justice is in generic terms: “Whoever corruptly . . influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined . . ..” 18 U.S.C. § 1503 (1970). Recognizing this, the Grand Jury descended to factual particulars and specified the general character of the acts by which a particular process of justice (a grand jury investigation) was allegedly obstructed. Such factual specificity was necessary to inform the defendants of the crime with which they were charged, to enable them to plead a conviction or acquittal thereon against a future prosecution for the same offense, and to permit the court to determine the facts necessary for conviction.
Count 2 of the indictment would not have been sufficient if it had only alleged that the defendants obstructed a grand jury investigation by various (unspecified) means. By the same logic, it would not be sufficient if we interpreted “other means” to mean “any other (unspecified) means.” An indictment drawn in either of these terms would fail both of the above-mentioned tests. First, it would not fairly inform the defendants of the charges against them. In United States v. Nance, supra, we found an indictment for false representations to be fatally deficient because, although it alleged that representations were made, it did not specify what they were. This left it open for the United States Attorney to insert the vital part of the indictment without reference to the Grand Jury, op. at 474 of 174 U.S.App.D.C., at 701 of 533 F.2d, and thus to prosecute the defendants on the basis of evidence never presented to the Grand Jury and which the defendants never had any notice would be used to substantiate the particular charge. Similarly here, if we were to interpret “by other means” as a vague, general allegation as the majority contends may be done, the Government would have been allowed to introduce evidence — such as acts of the defendants which defrauded the government by misusing the CIA to interfere .with the FBI investigation or even acts not mentioned in Count 1 — that the Grand Jury never intended to include as part of the offense in Count 2. Such acts differed materially in character from the specific acts which were alleged, and they were not referred to in the indictment that the Grand Jury returned.
Second, the defendants would not legally be entitled to argue that a conviction or acquittal on Count 2 constituted a bar to a future prosecution on charges of obstructing justice by using the CIA to block the FBI’s investigation, since the indictment makes no mention of that offense. Likewise, there would be no assurance that the evidence offered as factual basis in court in proof of the count was the same as that which the prosecutor presented to the Grand Jury. This error is fatal under Stirone, supra.
For these reasons, interpreting Count 2 here to allow a conviction on the charge of obstruction of justice to be based solely on the evidence that appellants defrauded the government by misusing the CIA to delay the investigations into the Watergate break-in violates appellants’ constitutional rights under the Fifth and Sixth amendments. In order to avoid such constitutional error, the “other means” allegation of the indictment must be construed in accordance with the rule of ejusdem generis.
. See, e.g., Government Brief at 16-18. By contrast, the “hush money” and other offers allegations of the indictment would permit the introduction of evidence on Count 2 that Mitchell and Mardian suggested to Dean that the CIA be requested to provide covert funds so payments of money could be made to assist those involved in the Watergate break-in, Tr. 2729-30, 6610, and that Ehrlichman, at Dean’s suggestion, approved asking the Deputy Director of the CIA for such funds. Tr. 2730-31, 2733-37, 6135-36, 6141. Such evidence is of the same general character as is the charge in Count 2 of the indictment that appellants corruptly endeavored to obstruct justice “by making cash payments.” This was only an attempted misuse of the CIA. It never succeeded.
. In closing the prosecutor argued:
Mr. Haldeman then said it is the President’s wish that General Walters go to the Acting Director of the FBI and explain to him that the pursuit of this investigation in Mexico might uncover some CIA assets or channeling. And since the five suspects had been arrested, it would be better that this matter were not purshed [sic ] further since it might uncover some operation of the CIA.
Utterly, totally, completely false. It might uncover a connection between the Committee to Re-elect the President and the Watergate burglars, and if you have any doubt about it, get the tape and listen to the tape of June 23 which is Government Exhibit 1 if you
have any doubt about what they were afraid would be uncovered.
Tr. 11,580.
He marches out of the White House and marches over to see Mr. Pat Gray over at the Department of Justice Building and he says to Mr. Gray: Look, you have got five people arrested and if you go into Mexico, you might uncover some CIA assets or operations. Since you got five arrested it is best to taper off the investigation now.
That is what happened, ladies and gentlemen of the jury. And let me just tell you what Mr. Haldeman said on the stand about that sad episode. He is asked this: Now you say the reason for calling the CIA in was to get the FBI to stop the investigation was for this motive to avoid political embarrassment? Answer: That is my understanding, yes.
Tr. 11,581.
As a result, members of the jury, as a result of Mr. Haldeman’s, Mr. Ehrlichman’s and Mr. Nixon’s directions the FBI investigation was thwarted for two weeks — from June 23 until July 6th.
Ladies and gentlemen of the jury, as I mentioned a while ago, it is the corrupt endeavor to obstruct justice that is the offense. If it were thwarted for two seconds, or two minutes, or ten minutes, or two weeks as it was, it is irrelevant. It was thwarted, it was stopped, it was killed in its tracks for two weeks and that is the obstruction of justice.
Tr. 11,582 (emphasis added).
. The court here charged the jury on criminal intent:
If you find that a defendant’s intent was innocent, you must find him not guilty.
(Tr. 12,382) (emphasis added). In United States v. Alston, supra, the court found that the jury had not “fully understood the interplay between the ‘identification’ and ‘alibi’ instructions”; i.e., that the Government had to prove the identity of the defendant beyond a reasonable doubt, but the defendant did not bear the same burden as to “alibi.” The same difference exists here between proving guilt and innocence. If Alston were applied here the instruction on intent should have been:
If you have a reasonable doubt that a defendant’s intent was corrupt, you must find him not guilty.
The strictness of Alston should raise a similar doubt about the charge on intent and certainly would direct a reversal for the “misusing the CIA” instruction. Thus if Alston were good law, which I doubt, this case should be reversed too on the same ground. The failure of my colleagues to even consider the application of this recent decision to this case further puzzles me.
. 361 U.S. at 215, 80 S.Ct. 270.
. The Seventh Circuit decision in Glasser described the factual allegations of the indictment. They were very lengthy .and we set them out only to prove the gross distortion of principle indulged in by the majority.
The indictment in substance charged that the defendants and divers other persons to the grand jurors unknown, conspired to defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the Courts of the United States by an Assistant United States Attorney, to prosecute certain delinquents for crimes and offenses cognizable under the authority of the United States as the same should be presented and determined according to law and justice, free from corruption, improper influence, dishonesty or fraud, and more particularly its right to a conscientious, faithful and honest representation of its interest in certain suits and causes brought and pending in the United States in *393the Northern District of Illinois by promising, offering, causing and procuring to be promised and offered, money and other things of value to an officer of the United States, and to persons acting for and on behalf of the United States in an official function under and by authority of a department and office of the Government of the United States, with intent to influence his decision and action on certain questions and causes which were at times pending, and which were by law brought before such officer in his official capacity, and with the intent to influence to commit and in committing, and to collude in committing certain frauds on the United States, and to induce such officer to do and to omit from doing certain acts in violation of his lawful duty.
The indictment further alleged that Glasser was an Assistant United States Attorney for the Northern District of Illinois, employed to prosecute all delinquents for crimes and offenses cognizable under the authority of the United States, and as such he did act for and on behalf of the United States in certain official functions under and by authority of the Department of Justice of the United States, and as such officer he had certain decisions to make and actions to take on certain questions, causes and proceedings brought before him in the performance of his duties as such Assistant United States Attorney; that it was part of the conspiracy that the defendants would solicit certain persons named in the indictment, charged with violating or about to be charged with violating the laws of the United States, to promise or cause to promise money to be paid or pledged to the defendants to be used to influence and corrupt Glasser in his official capacity in his decisions on certain questions, causes and proceedings, with the intent that the defendants would accept and use said money to corruptly, wrongfully and improperly influence Glasser in his decisions and thus allow a fraud to be committed on the United States in violation of his lawful duties as an Assistant United States Attorney.
The indictment further alleged that Glasser would meet and hold conversations with the other defendants and inform them what they should do to carry out the conspiracy and would instruct them as to what steps or action each of them would take in the matters in which he was representing the United States Government and thus Glasser conspired with the other defendants to defraud the United States of and concerning its governmental function to be honestly, faithfully and dutifully represented in the courts of the United States by an Assistant United States Attorney.
United States v. Glasser, 116 F.2d 690, 695-96 (7th Cir. 1941).
. It takes three and one-half pages in the Supreme Court reporter to describe the factual allegations of the indictment, Burton v. United States, 202 U.S. 344, 361-65, 26 S.Ct. 688, 50 L.Ed. 1057 (1905).
. 18 U.S.C. § 371 provides:
If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both.
. Three minor points: (1) There is no claim here of a second prosecution so most of the discussion as to possible double jeopardy need not be answered.
(2) There is no basis in fact or logic for the following statements in the majority opinion:
The limitation of the FBI investigation means, though not specifically alleged, certainly fits comfortably under “other means” of obstruction just as it does under the general language of Count 1. In fact, the allegations of conspiracy to obstruct justice and to defraud the United States in Count 1 are the basis of the allegations of the substantive offense of obstruction of justice in Count 2.
Majority opinion at 351 of 181 U.S.App.D.C.,at 128 of 559 F.2d.
To assert that the “limitation of the FBI investigation . . . fits comfortably under ‘other means’ of obstruction just as it does under the general language of Count 1” is a complete misapplication of the normal meaning of words. There is absolutely nothing about the words “other means” in an indictment, preceded by two specific factual allegations identifying an offense, that would give any indication that they included anything so specific as limiting an FBI investigation. Of course, if one were to construe them, as the majority apparently does, to include all other means in the world then everything would be included. But that cannot be done in an indictment. So the limitation alleged does not fit comfortably under “other means” of obstruction.
And to liken the generality of the “other means" allegation in Count 2 to the “general language of Count 1” misdescribes the allegations of defrauding the government which were contained in Count 1. A single quotation from the indictment will prove the point. Count 1 of the indictment charged that the defendants did
conspire (inter alia) . . .to defraud the United States and Agencies and Departments thereof, to wit, the Central Intelligence Agency (CIA), the Federal Bureau of Investigation (FBI), and the Department of Justice, of the Government’s right to have the officials- of these Departments and Agencies transact their official business honestly and impartially, free from corruption, fraud, improper and undue influence, dishonesty, unlawful impairment and obstruction, all in violation of Title 18, United States Code, Section 371.
That is a specific allegation of conspiring to defraud the government. The rest of the alleged conspiracy sought to obstruct justice and to make false statements and declarations. These were specific allegations. It would not have been legally permissible to introduce evidence of a conspiracy to commit any other offense — as the majority argues.
(3) My views on the disqualification of the judge are set forth in my separate opinion in Mitchell v. Sirica, 163 U.S.App.D.C. 373, 502 F.2d 375 (1974).
. Since females will be available to answer telephones to a significantly greater extent than males, this procedure is necessary to assure that the composition of the total sample approximates the actual ratio of males to females in the population.
. In making these tabulations, males and females were computed separately, projected to reflect the correct proportions of males to females in the general population, and the figures as so projected were then combined for an overall percentage. The percentages so derived were then rounded to the nearest whole number.